Sadasiva Ayyar, J. — The only question in this Second Appeal is whether the plaintiff s (inamdars whose ancestors were granted certain inam lands as minor inam) are entitled to the kudivaram right in those inam lands so as to enable them to eject the tenants on notice to quit.
That the tenants and their predecessors in title have been continually holding the lands from at least 1804 is clear from the documentary evidence on the plaintiffs' side itself (see Ex. H & C series). That sales and mortgages by the tenants of their Kudiwaram rights have been taking place from long before disputes arose is also clear (see Exs. 1 to 11). The Lower Appellate Court on a consideration of the whole evidence, oral and documentary, arrived at the conclusion that the plaintiffs had not proved their title to eject the defendants. We are asked to set aside that finding on the grounds,
(a) that the burden of proof was wrongly thrown on the plaintiffs,
(b) that the original deed of grant to the plaintiffs of the inam has been misconstrued,
(c) that the Lower Appellate Court rejected certain documents tendered in evidence for the plaintiffs as inadmissible,
(d) that the terms of the muchilikas C and C 2, executed by the tenants negative their claim of kudivaram right in the lands and that the attestation of the defendants 2 and 3 in Exhibit E estops them from denying the plaintiffs' kudivaram right.
I think that the burden of proof was rightly thrown on the plaintiffs, as it has been now settled, that, whether it is a minor or major Inam, especially if the Inam was granted by a Zemindar or Jaghirdar to a Brahmin, the presumption is that the grant was only of the melvaram (See Lakshmi Narasimha Row v. Sitaramaswami, Venkatanarasimha Appa Bao v. Subba Reddi, Narasimhacharyalu v. Ramabrahmam, and S. A. No. 1205 of 1912).
I am also not satisfied that Ex. M, the deed of grant of the Inam, has been misconstrued. A Zamindar, making a grant of the melvaram right only in lands in his Zamindari, always styles the grant as a grant of land, just as he speaks of all the lands in his Zamindary as his own lands.
As regards the documents tendered in evidence and rejected as inadmissible, they admittedly do not relate to the plaint lands. Some of them which were read to us are not such as to render them admissible as proving facts which make any facts relevant to the decision of the case” highly probable or improbable” so as to render them relevant evidence under section 11 of the Indian Evidence Act.
I reject this contention also of the appellants.
As regards the contention based on certain terms in muchilikas C and C 2, such and similar terms in muchilikas executed by the tenant of a landlord have been held not to estop the tenant from setting up that he has got kudivaram rights, in the absence of proof by the landlord that the tenant was originally let into possession of the land as tenant, only on that condition. Even as an admission, it should not be given too much weight as between a landholder and his tenant. See Narasimhacharyalu v. Ramabrahmam. As regards Ex. E, it only describes the land as the Inamdars' lands; but whether the Inamdars have only the melvaram right or both melvaram and kudivaram rights, when a sale is made of such right and possession is given of such right, the usual description in such a deed is, that the lands are sold and possession is to be given of the lands.
I think that notwithstanding the few immaterial inaccuracies into which the learned Subordinate Judge is shown to have fallen in his statement of the facts, his finding cannot be interfered with in second appeal as that finding is strongly supported by the long continued undisturbed enjoyment of the defendants (which itself is very good evidence of a permanent right of occupancy in them) and by the absence of any proof worth the name that they or their predecessors were ever let into possession by the Jaghirdar or the Inamdar.
The second appeal is therefore dismissed with costs.
Tyabji J:—I agree. With reference to some of the arguments addressed to us in this case I wish to remark that questions of facts cannot be made the subject of second appeal on the assumption that every piece of evidence legally admissible either raises a presumption or shifts the burden of proof. The definitions contained in sections 3 and 4 of the Indian Evidence Act seem to me to supply a corrective. The test of proof is that a prudent man should act in the belief of the existence of a fact. Even when the Indian Evidence Act provides that a certain fact shall be presumed, except in the rare cases in which it is also laid down that the Court cannot permit disproof of the fact, there is nothing to prevent the Court from holding that the fact which is required to be presumed is disproved by any particular piece of evidence that has been adduced. Nor is it laid down that any specific quantum of evidence is required in order to disprove a fact which the Court shall presume under the provisions of the Indian Evidence Act. Where, therefore, Courts in the consideration of the evidence before them in any particular case say that a certain fact raises a presumption, they cannot be considered to lay it down as a matter of law that the existence of the one fact shall always be presumed from the existence of the other fact. It seems to me that to proceed on this basis is to consider that the Courts legislate in the decision of every case, and that they legislate in terms stronger and less elastic than the legislature itself has chosen to adopt with regard to the great majority of circumstances. As a mere matter of terminology, it is convenient, no doubt, to say that a certain fact, raises a presumption one way or the other; but saying so merely implies that in the circumstances of the case, the Court, on the proof of the fact in question, believed probable that another fact existed and believed the probability of the existence of that other fact to be sufficiently great for a prudent man to act in that belief, in the circumstances of that particular case, and with reference to the particular act. When a Judge of great experience, having great knowledge of the facts connected with the particular circumstances of the case, says, that in his opinion, there is a presumption one way or the other, meaning thereby to say that he will believe ordinarily that a certain set of circumstances exists, such an expression of opinion is, no doubt, a guidance to other Judges of less experience and every weight is naturally given by other Judges to such an expression of opinion. To go beyond this and to hold that such expressions of opinion are absolutely binding in regard to the appreciation of evidence in other cases, the circumstances of which may be quite different, seems to me to be unwarranted. It does not seem to me to be legitimate to argue, that, because, the Court has once expressed an opinion that in certain circumstances the existence of one fact appeared to it probable because another fact was proved to exist, therefore, such an expression of opinion must be taken to contain a rule of law, which must necessarily assist in the appreciation of evidence in all other cases and which must necessarily be alluded to and followed in subsequent cases. This would be at variance with the scheme of the Indian Evidence Act which requires the Court to consider the evidence in each particular case with very few artificial trammels. On this basis, Courts adjudicating upon facts will find themselves hampered at every stage by having complicated rules for the appreciation of evidence which, it seems to me, will hinder justice being done and decisions being given really in accordance with the evidence and the facts before the Court. A set of such presumptions would embarrass the Courts of first instance instead of assisting them by the experience of other Courts (whether of superior Jurisdiction or otherwise) that have had to consider similar questions. The rules for the appreciation of evidence would become more difficult of comprehension than the evidence to the appreciation of which such rules are meant to furnish a guidance. Instead of adverting to the direct evidence before them, the Courts would be invited to wander in search of rules and circuitously to infer matters which they can decide at first hand.
There is another remark that I should like to make in this connection. The Indian Evidence Act in providing when the Court shall consider a fact to be proved or disproved refers to the fact that a prudent man should have a belief created in his mind and the belief should be of such strength as to make him act upon the belief, This, it seems to me, shows that the Courts are not expected merely, so to say, to weigh in balance of gold the evidence on one side or the other and if the scales go down by a hair's breadth on one side or the other they are not expected to proceed on the basis that that fact is proved for all purposes. There is nothing in the Indian Evidence Act, so far as I understand it, to prevent the Court considering whether the probability is sufficiently great in favour of one side or the other to make the Court act upon the existence of its probability; the nature of the act must necessarily determine the amount of preponderence of evidence required; what may be considered sufficient evidence for justifying an act of one kind may not be considered sufficient evidence for justifying an act of a more important kind. What may be considered a safe basis to proceed in the one case may be very unsafe in the other. When the alternative to the act in question is feasible, one may refuse to consider the evidence sufficient for believing the fact of its existence. Where there is no such alternative, one might perforce act on the basis that the fact exists.
I have already said that I agree in the order proposed by my learned brother.
Sadasiva\Ayyar, J:—To avoid any misapprehension I wish to add that I should not be deemed to differ in any way from the remarks just now made by my learned brother. On the other hand I agree with them.
Appeal dismissed.