The defendant must raise the plea that the suit lands are communal poramboke lands and allege and prove the facts necessary to substantiate the contention.

1. The Second Appeal arises out of a suit to recover six plots of land in an inam village, belonging to. Chokkanathaswamy Temple of Virudupatti, of which the plaintiff and 2nd defendant are trustees. The 1st defendant denied the plaintiffs title to those plots generally; in particular, it was also contended that the 1st defendant was entitled to plot II by purchase from the 2nd defendant (in his personal capacity), to plot II by tracing title to one K. Shanmugam Pillai and as to plot IV by tracing title to one Saravana Muthu Pillai.

2. It was also mentioned that a portion of plot III was known as Vannan Ooruni that a portion of plot V contains the memorial stones of the Chukkiliars and is known as Chukkiliar Malai and that plot VI was originally a public path, but has been closed about 20 years ago, by Messrs. Ralli Brothers and fell into disuse. Except as implied in these statements, no plea that any of the plots was dedicated to communal purposes and that the title to them is vested in Government was raised, nor any express issue taken, the 3rd issue raising the question of the plaintiffs title generally.

3. After the beginning of the trial, the 1st defendant applied for two additional issues, raising the question whether the suit lands are communal lands and therefore the plaintiffs had no title to them and whether the Civil Courts have jurisdiction. The Munsif was of opinion that these points were not raised in the written statement and rejected the application on the 14th March. On the 26th March, another application was filed, praying for amendment of the written statement but was also rejected. The Munsif then decreed the suit.

4. On appeal, the Subordinate Judge held that not merely plot III (as contended by the defendant) but also plots I to III (as contended by the plaintiff) constituted the Vannan Ooruni. It is clear from the contentions of the parties on this point, that the question whether Vannan Ooruni was communal land and the plaintiff had therefore no title to it was entirely absent from the minds of the parties; for, if they had the faintest idea that Vannan Ooruni was communal land and therefore the plaintiff had no title to it, the contentions would have been just the opposite of what they are. As to all these plots the Subordinate Judge found against the title of the defendants. He also finds that all the suit plots are described as poramboke in the documents. The defendant taking advantage of the Subordinate Judges finding (which purported to be in favour of the plaintiff), that plots I to III constituted Vannan Ooruni contended that the three plots should be regarded as communal land, and a similar contention was also raised about plots IV to VI.

5. From the above narrative of the course of the proceedings in the First Court, it is clear that as to plot IV the defendant never intended to raise such a plea as to plot III; though he described it as Vannan Ooruni he did not intend to base such a pica on the description of the land as Vannan Ooruni; for, if such a plea was meant to be raised by him, he would not have hotly contested the plaintiffs case that plots I to III constituted Vannan Ooruni and not plot III alone, since the plaintiffs case would be favourable to him and that any intention to raise the plea could only be implied, in respect of plot V (portion) and plot VI.

6. The Subordinate Judge having found that the plots were porarnboke, seems to have assumed that they must be communal porambokes and without any further discussion, his finding being that the plaintiff failed to prove that the suit lands are not poramboke communal lands dismissed the suit.

7. The Inam village belonging to the plaintiff, all lands within the ambit of the village prima facie belong to the plaintiff and it is for the defendant to raise the plea that the suit lands are communal poramboke lands and therefore do not belong to the plaintiff and to allege and prove the facts necessary to substantiate the contention. So f