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TMI Blog1949 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... use after the Mahomedan conquest. In ancient days, grants of land, or revenue, were made by Hindu sovereigns to individuals, particular families, or communities for various purposes, or to religious institutions, for their upkeep. These were known as Manyams, The practice was continued by the Mahomedan rulers, and later, by the East India Company also, till it was discontinued in the earlier years of the nineteenth century, as a result of instructions received from the Directors of the Company. Thenceforward, gifts of land were granted only in special cases, the ordinary cases being provided for by the grant of money pensions. Inams in the presidency of Madras are of two kinds ; first, those where the proprietary right in the soil and the right to the Government share of the revenue derivable from land coalesce in the same individual, and secondly, those where the proprietary or occupancy right is vested in one or more individuals, whilst the Government share of the revenue has been granted to another (para. 71, Mr. W.T. Blair's report on the operations of the Inam Commission, dated October 30, 1869). 3. An inam holding may be of a field only, or a village, or a tract o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily transferred half of the inam to the Tangirala family, whose successor in title is the plaintiff. By two transfers in 1912 and 1913, the Putcha family conveyed the remaining half of the inam to Tangirala Narasimha, the father of the plaintiff. As a result of these transfers the Tangirala family owned as inamdar the entire extent of the inam which had been originally granted to the Putcha family. 7. The plaintiff alleged in his plaint that the village was uninhabited and overgrown with shrubs and bushes in which animals moved about, that his predecessors in title obtained both melvaram and kudivaram rights under the grant, that the land gradually became fit for cultivation, that registered leases had been executed by defendants in 1908, and in various subsequent years, containing admissions of the plaintiff's rights, and that, as the present owner of the land, he is entitled to eject the defendants. The defendants denied that the land was waste land, and averred that the Putcha people had only melvaram right under the grant, and that they (the defendants) were in possession of the land from time immemorial enjoying the kudivaram right. They also stated that the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an inam grant conveyed to the grantee only the melvaram interest in the land. In Suryanarayana v. Patanna (1918) L.R. 45 I.A. 209, the Board held that there is no such presumption. This view was affirmed in Upadrashta Venkata Sastrulu v. Divi Seetharamudu (1921) I.L.R. 44 M. 588, in which their Lordships held that when the question arose each case must be considered on its own facts. These decisions of the Board were differently understood by different Division Benches of the High Court. In certain cases, it was held that both the melvaram and the kudivaram interests passed to the grantee unless the contrary was shown; while in others, it was held that there was no such presumption according to the Privy Council decisions. In the Full Bench decision in Muthu Goumdan v. Perumal Iyen (1921) I.L.R. 44 M. 588, it was held that underlying the exposition of law by their Lordships there was an initial presumption of law in favour of the grant of both varams, which would mean that in a suit in ejectment by the inamdar against a tenant the onus of proving that he has permanent rights of occupancy lay on the tenant. The Full Bench decision was expressly overruled in Chidambara Sivapraka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applicable in cases where the inamdar is proved or admitted to be the owner of the land itself (3). Thus understood, the decision did not contravene the principle that in a suit for ejectment the burden lies on the inamdar as plaintiff to prove his right to evict and was in conformity with the decision in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi (1922) L.R. 49 I.A. 286. 12. In Ayyangars v. Periakaruppa Thevan (1929) 30 Mad. L.W. 583, decided three years later, and without reference to the decision in Zamindar of Parlakimedi v. Ramayya (1926) 51 Mad. L.J. 510, which was apparently not cited to them, the learned judges, Wallace and Odgers, JJ., were inclined to hold that the decision in Nainapillai Marakayar v. Ramanathan Chettiar (1923) L.R. 51 I.A. 83 being later in point of time was binding on them and that ....it laid down that the onus therefore rests upon the defendants to show that they possess such right of occupancy in their holdings as will prevail against the plaintiffs' prima facie right to eject (see the judgment of Wallace, J.). At a later stage their Lordships will deal with the above cases more fully, and will also refer to other cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to immediately above are entitled to more weight than the admissions (assuming that the tenants knew the contents of the muchilikas) of ignorant and illiterate ryots, 15. As there was thus a difference of opinion between the two learned judges they stated under Clause 36 of the Letters Patent the following points (already quoted at the commencement) of law and fact: (1.) Whether in a suit by a holder of a minor inam to eject the tenants from the holding, the burden is on the plaintiff to make out a right to evict by proving that the grant included both the melvaram and the kudivaram interests or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease, or whether the burden is on the tenants to prove that they have occupancy rights. (2.) Whichever way the burden lies, whether the burden has been discharged in the present case by the party on whom it lies. The case was posted for disposal before King, J., who held, as will appear from the extract of his judgment quoted below, that the burden of proof lay on the tenant, which appears to have been the opinion of Krishnaswami Ayyangar, J. also as he allowed the appeal on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case only whether they have proved that the lands which they were cultivating were part of an estate, which again can mean only whether in those lands the melvaram alone was granted to the inamdar. If their Lordships meant the doctrine as to burden of proof which they laid down in their fourth paragraph to apply only to cases where the landlord's title to both varams was already admitted or proved, then that paragraph was bound logically to come not before but after the decision of their Lordships on the evidence as to the terms of the grant. Whether 47 Madras 337 be held inconsistent with earlier Privy Council decisions or not, I cannot resist the conclusion that the proposition of law in the fourth paragraph is a general proposition of law which must be applied to a case such as the one now before me. The juxtaposition of the third and fourth paragraphs, and the language of the sixth show clearly that a tenant who admits a melvaram right in his landlord and claims an occupancy right in himself, must prove that right and that the Privy Council has not excluded such a tenant from the expression 'tenant of lands in India.' I hold accordingly on the first of the poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Government of the day or its assignees, the zamindars, but independently of them. This view was fully developed in the well-known case of Cheekati Zamindar v. Ranasooru Dhora (1899) I.L.R. 23 M. 318. It was also pointed out in Venkatanarasimha Naidu v. Dandamudi Kottayya I.L.R. 20 M. 299, 302 that the interest in the land is divided into the two main heads of the kudivaram interest and the melvaram interest, and that the holder of the kudivaram right, far from being a tenant of the holder of the melvaram right, is really a co-owner with him. The kudivaram right originated in priority of effective occupation and beneficial use of the soil, and the claim of the government and the assignees of government, was always, in these parts, to a share in the produce raised by the ryots. See Narayana Ayyangar v. Orr (1902) I.L.R. 26 M. 252, 255. 19. The controversy as between the zamindar and his tenants was settled by Section 6 of the Madras Estates Land Act (Act I of 1908) which declares: Subject to the provisions of this Act, every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land not being old waste situated in the estate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but nothing effective was done to settle the validity of the titles of the inamdars till 1859, when the question of examining their titles was taken up by the Inam Commission. As a result of its deliberations various Acts - Madras Acts IV of 1862, IV of 1866, and VIII of 1869 - were passed. The history of these enactments, into which it is not necessary to inquire, is fully dealt with by Sir George Rankin in Secretary of State for India v. Srimath Vidhya Sri Varada Thirta Swamigal (1941) L.R. 69 I.A. 22, 39. Attention may, however, be drawn to the following provision of Madras Act VIII of 1869, which enacted: Nothing contained in any title deed heretofore issued to any inam-hold or shall be deemed to define, limit, infringe or destroy the rights of any description of holders or occupiers of the lands from which any inam is derived or drawn, or to affect the interests of any person other than the inam-holder named in the title deed; and nothing contained in Madras Act IV of 1862, or in Madras Act IV of 1866, shall be deemed to confer on any inam-holder any right to land which he would not otherwise possess. 21. The decision of the Board in Suryanarayana v. Patanna L.R. 45 I.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atanna L.R. 45 I.A. 209 that in an ejectment suit brought by an inamdar against the cultivating ryot no presumption in law exists that the grant conveyed only the melvaram, and the decision was accepted as not open to any question. 24. Their Lordships will now proceed to consider how the question as to the onus of proof raised in the first question before the Board should be decided when the merit? of the case are examined, without any reference to the supposed presumption in law that an inam grant conveys only melvaram rights, which has now been held not to exist. Admittedly, no question strictly relating to onus of proof as such arose for decision in Suryanarayana v. Patanna L.R. 45 I.A. 209. That case only dealt with the presumption in law as regards the nature of the interest that exists in lands granted in inam. In that case the ryots claimed rights of permanent occupancy under Section 3, Sub-section 2(d), of the Madras Estates Land Act. They contended that the grant to the agraharamdar (the subject-matter of the suit was an agraharam village) was of the land revenue alone and relied on a presumption that such a grant was so restricted. The Madras High Court in Suryanarayan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respecting the onus recedes into the background, but where the court finds it difficult to make up its mind the question comes to the foreground and becomes the deciding factor. In Yellappa Ramappa v. Tippanna (1928) L.R. 56 I.A. 13, 18, Lord Shaw said: In any case onus probandi applies to a situation in which the mind of the judge determining the suit is left in doubt as to the point on which side the balance should fall in forming a conclusion. It does happen that as a case proceeds the onus may shift from time to time.... 25. What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as shifting. The burden of proof on the pleadings never shifts, it always remains constant see Pickup v. Thames Insurance Co. (1878) 3 Q.B.D. 594. These two aspects of the burden of proof are embodied in Sections 101 and 102 respectively of the Indian Evidence Act. Section 101 states: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 26. When a person is bound to prove the existence of any fact, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered. 28. Their Lordships may here observe that in shifting the burden from one side to the other by adducing evidence, parties may rely on presumptions in law, which are really inferences of fact, in place of actual facts. If there was a presumption in law that an inamdar was the owner of both kudivaram and melvauran interests in the land then he could rely on that presumption to discharge the initial burden of proof that lay on him to prove his title to eject. In this sense the presumptions arising from law are connected with the question of onus of proof. It is settled law that in a suit for ejectment the burden of proof lies on the plaintiff to show that he has a right to eject the defendant before the onus is shifted to the defendant to prove that he has a right of permanent occupancy. Their Lordships have now to see whether this rule has been departed from in the decision in Nainapillai Marakayar v. Ramanathan Chettiar L.R. 51 I.A. 83, 89. In that decision, as already pointed out, Sir John Edge said: It cannot now be doubted that when a tenant of lands in India, in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption that the landlord is the absolute owner of the land and dealing with the case on that assumption their Lordships proceeded to consider the terms of the grant, and after finding that themelvaramand kudivaram interests in the land were at some time granted to the temple, they began to consider whether the defendants have proved that they, or those through whom they claim title as occupiers of the lands in suit, obtained at any time a right of permanent occupancy in the lands. This being their method of approach to the case it seems to their Lordships that, as pointed out in Zamindar of Parlakimedi v. Ramayya 51 Mad. L.J. 510, 515, when the principle above-mentioned was laid down...the words 'tenant of lands' must mean 'tenant of lands belonging to his landlord,' that is to say, that the landlord has a right not merely to the melvaram but to the land itself. In this view the two judgments Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi L.R. 49 I.A. 286, and Nainapillai Mar okayar v. Ramanathan Chettiaf L.R. 51 I.A. 83, 89 are not inconsistent. 32. A close examination of the two decisions relied on by their Lordships in support of the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Sannadhigal v. Veerama Reddi L.R. 49 I.A. 286. In this connexion it may be stated that it is not correct to say, as was boldly argued, that a ryotwari pattadar has no proprietorship in the land he holds under the Government. In his Land Systems of British India, Baden Powell gives the following definition of the ryotwari system: A system of land revenue administration in which there is no middleman or landlord over the individual ryots, who are severally liable for the land revenue assessment on the holding. Again, quoting from the Settlement Manual from Madras, he describes the ryotwari system as follows: Under the ryotwari system every registered holder of land is recognized as its proprietor.... He is at liberty to sub-let his property or to transfer it by gift, sale or mortgage. He cannot be ejected by Government so long as he pays the fixed assessment, and has the option of (annually) increasing or diminishing his holding or of entirely abandoning it.... The ryot under this system is virtually a proprietor under a simple and perfect title, and has all the benefits of a perfect lease without its responsibilities. (Vol. 3, p. 130.) 35. In this system of land holding it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise between ryotwari pattadars and their under-ryots are not in point in disputes between inamdars and cultivating ryots. 38. The principle of the burden of proof laid down in Nainapillai Marakayar v. Ramanathan Chettiar L.R. 51 I.A. 83 when read in the light of the facts of the case also, does not appear to contravene the rule that in a suit for ejectment the initial burden lies on the plaintiff to prove that he has the title to immediate possession. The lands in respect of which a decree in ejectment was sought were the endowed property of a temple. It is stated in para. 3 of the judgment that it is not disputed that the defendants were tenants of the temple. The tenants were let into possession under muchilikas executed by them. After referring to the muchilikas their Lordships state significantly that: In 1870 Sir C.H. Scotland, C.J. held that when a tenancy in the Presidency of Madras commenced under a terminable contract there was nothing to prevent the landlord from ejecting the tenant at the end of the term from the lands which had been let to him (2) Lower down they state: No tenant of lands in India can obtain any right to a permanent tenancy by prescription in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ships ever intended to depart from these elementary rules. In both the cases the plaintiff's title to the lands was conceded, and notices by which the defendants' tenancies were terminated were not disputed. In neither case had any grant been alleged, asserted, or admitted on behalf of the plaintiff, but inasmuch as the defendants had been in occupation on payment of rent, a tenancy from year to year terminable on notice was all that was conceded 32 Cal. W.N. 162. 40. Before proceeding further one more case - already referred to - remains to be discussed. In Ayyangars v. Periakaruppa Thevan 30 Mad. L.W. 583 the; plaintiffs were grantees by ryotwari lands. That decision was passed in Letters Patent appeal by Wallace and Odgers, JJ. reversing the decision of Phillips, J. who held, as already pointed out - following his own decision - in Zamindar of Parlakimedi v. Ramayya 51 Mad. L.J. 510 that the words tenant of land in the principle stated in Nainapillai Marakayar v. Ramanathan Chettiar L.R. 51 I.A. 83 must mean tenant of lands belonging to his landlord. The latter decision does not seem to have been cited before them. The apparent conflict between the decisions in Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of their lands from generation to generation I.L.R. 20 M. 229, 302. Further comment on the above observation is needless. It may be mentioned that the passage quoted above which - as already stated - is from the proceedings of the Board of Revenue dated January 5, 1818, was referred to in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi L.R. 49 I.A. 286 with approval by their Lordships as correctly describing the position of cultivating ryots in the agricultural economy of southern India. Secondly, it also ignores the principle laid down by the Board that when an inamdar comes to court alleging that he owns both the vai ams, no presumption can be drawn in his favour or against him, but that the whole case should be decided on its own merits without resorting to any presumption. 41. King, J., after referring to the previous decisions, dissented from the view of Nainapillai Marakayar v. Ramanathan Chettiar L.R. 51 I.A. 83 taken in Zamindar of Parlakimedi v. Ramayya 51 Mad. L.J. 510 and concluded saying that: Whether 47 Madras be held inconsistent with earlier Privy Council decisions or not, he is satisfied that the structure of the judgment in Nainapillai Marakaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the lease deed R are non-committal and are of such a nature as has been held not to contain any admission that the ryots have no rights to the kudivaram interests in the land. Terms appearing in S to S-5 deeds, such as The land belongs to you and has been in your enjoyment with absolute rights, If I fail to deliver rent on due date, I shall pay the value of the paddy in arrears, At the expiry of the term in the khath I shall deliver up possession of the land do not necessarily show that the landlord owns kudivaram rights; nor are they necessarily inconsistent with the defendants' claim to possess occupancy rights. There is no statement in any one of them that the landlord is entitled to eject the executants, nor is there any evidence that anyone ever quitted the lands in his possession. Another statement that you have delivered possession of the land to me which would, if true, be valuable, is unfounded, as there is no evidence of any kind to show that the landlord at any time put the ryots in possession of the land. More important than the above, if they can be acted on, axe the statements in some of the renewed leases S-6, S-8, S-u, S-12, S-13, wherein the execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not evicted, might be prepared to sign anything, and that the evidential value of such a contract should be judged accordingly. Their Lordships will only add that this attitude might be modified if such statements in the leases were supported by other circumstances which - as they will show presently - do not exist in this case. After careful consideration their Lordships think it is unsafe to act on the statements and admissions contained in the S series lease deeds. In considering the evidence as a whole these have not sufficient weight to rebut the presumptions in favour of the defendants arising from the other circumstances in the case. 46. Coming to T series (extracts from registered kaths) executed by the tenants, reliance is placed on T-1 to T-6 which refer to the full kudivaram and melvaram rights obtained by the plaintiff from the Inam Commissioners under inam title deeds. It is well known that it was not within the scope of the duties of the Inam Commissioners to define the relations between the landlords and their tenants. Reference may here be made to the Madras Act IV of 1869 (already quoted) which was specially enacted by the legislature to make it clear that noth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of increased rent, Horwill, J. observes The learned Subordinate Judge has held that the rent paid by the tenants has always been the same and that although in muchilikas from 1913 onwards the tenants agreed to pay increased rent, yet they never in fact paid it. Although this can be spelt out of the oral evidence and may be true, this is not at all clear from the documentary evidence. Krishnaswami Ayyangar, J. apparently accepted the payment of increased rent as proved. Accepting the evidence that increased rent has been paid by some tenants its importance has to be considered along with the other circumstances of the case; when such payments are made by cultivators whose families have been in possession of land from time immemorial they may well be attributed to a desire on their part to cling to the land of their ancestors at all costs. Illiterates as they are, they may not have realized that such payments may be used against them to force them out of the land at some future date. There is no evidence that rents have been increased in the case of all the tenants or that the increased amounts were paid by more than a few. What is important is that no tenant has been at any time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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