Plaintiff sued for possession of certain property after ejecting defendants therefrom; and for rent and subsequent mesne profits.

The defendants in the suits clubbed together admitted that they had been paying annual rent and that plaintiff was entitled to arrears of rent, but claimed that the property was governed by the Estates Land Act so as to take the suit beyond the Munsif's jurisdiction, and also that they had occupancy right. The following issues were framed (as if for one of the suits):

(1) Is the defendant a yearly tenant as alleged by the plaintiff or is he a tenant with a permanent right of occupancy?

(2) Is the notice to quit valid?

(3) What damages or mesne profits if any, is plaintiff entitled to?

(4) Has this Court jurisdiction to try the suit?

(5) What relief is plaintiff entitled to?

The lower Courts concur in finding that defendant is not a tenant with permanent right of occupancy, that the notice to quit is valid and the suit is within the ordinary jurisdiction of the civil Court. But the District Munsif has held that there is no admission by defendant of plaintiff's right to evict, nor any presumption that defendant was holding the lands as tenant from year to year.

Presumably, though not stated in terms, his finding on issue (1) is that defendant is neither a yearly tenant nor a permanent tenant. Accordingly he found that plaintiff had no right to eject. The learned Subordinate Judge in his 10th paragraph holds this to be an error:

“In the present case, the tenants not having established their occupancy rights can be ejected without any further proof by the landlord.”

This in effect is a finding on issue (1) that defendants are yearly tenants.

“In all ordinary cases the presumption of law is that a tenant is a tenant from year to year,” Veerasami Mudali v. Palaniyappan.

But the lower Courts should have given precise findings on each issue instead of leaving them to be inferred. The Subordinate Judge concludes:

“As I have held that the question of title cannot be gone into in these suits, the judgment passed by the lower Court is perfectly correct.”

This view is set forth in paragraph 5 of the Subordinate Judge's judgment. The suits were valued under Sect. 7, Cl. (XI) (CC) of the Court Fees Act, as suits between landlord and tenant for the recovery of immovable property from a tenant. In such suits, the Subordinate Judge observes a decree cannot be passed on the footing of plaintiff's title. The landlord is given a cheap and effective remedy against tenants admitted to possession by him, who have failed to surrender at the termination of their lease. But where there is no proof that the tenant was let into possession by the landlord, the suit ought to be for the recovery of the land establishing plaintiff's title to it, and for ejecting the tenant from the holding. In the suits under appeal plaintiff did not pray for a declaration of her title in the suit land and for her right to eject the defendant.

There is nothing in the Court Fees Act to warrant the assumption that Sect. 7, Cl. (XI) (CC) is confined to cases where the defendant is clearly estopped from denying the plaintiff's title. If a landlord sues a tenant for the possession of immovable property, the Court-fee must be assessed under Sect. 7, Cl. (XI) (CC). It is then open to the defendant to deny that the relationship of landlord and tenant exists between him and the plaintiff. If he succeeds the plaintiff will be unsuited; and cannot in a suit of this character, fall back upon an alternative plea that defendant is a trespasser liable in damages for use and occupation. If the defendant fails to establish his contention, the landlord will be entitled to his remedy. Thavasi Ammal v. K. Arumuga Nattar seems to be exactly in point. Mr. Venkataramana Rao has argued for respondents that the mere fact of defendant raising this contention removes the suit from the category of one assessable under Sect. 7, Cl. (XI) (CC). The only course then open to the Court, he aruges, will be to reject the suit and order the plaintiff to bring a fresh suit for a declaration of her title as landlord and consequent remedies. I do not think that defendant can be allowed to alter the character of plaintiff's suit in this manner by his written statement. The landlord when he files the suit is justified in assuming that his title will not be questioned and if it is questioned that is a point which must be tried in the suit as part of defendant's defence. Of course, and this probably is what the Subordinate Judge had in mind, if plaintiff confines her claim to a specific lease, and defendant, while denying the relationship of landlord and tenant, succeeds in disproving this lease, the plaintiff may be hard put to it to find any other cause of action in the suit But where, as in the present case, the defendant admits the relationship of landlord and tenant, and merely rests his defence on occupancy right, the plaintiff is not compelled to rely upon the specific lease that it set forth in the plaint, (again Thavasi Ammal v. K. Arumuga Nattar is in point). This seems to have been understood when the first issue was framed; for it is not, whether the lease relied upon by plaintiff is valid: but generally whether defendant is a tenant holding from year to year or holding under occupancy right. The Subordinate Judge is quite correct in saying that defendant is not estopped from denying the tenancy; but seems to have overlooked that so far from availing himself of his opportunity, defendant admitted the tenancy.

Mr. Venkataramana Rao denies that there is any admission, and argues that when defendant says that plaintiff can recover arrears of rent, he does not mean rent in the accepted sense but that:

“the plaintiff is the person entitled to collect the customary rate for occupation or share of the melvaram from the defendant.”

But, I think, this only states in other words what is ordinarily described as a tenant with occupancy right; and if the occupancy right is negatived, there still remains the tenancy. Subbarayudu v. Narasimha Rao. “He must prove defendant is his tenant if that is denied.”

It may be observed also that if plaintiff is to be driven to a fresh suit, it will be a suit of precisely the same character. Parties do not pray for declarations when there is no obstacle to be removed and plaintiff will again state that she is the landlord, relying, if no further evidence is forthcoming, upon defendant's admissions in these suits, and defendants will again set up occupancy rights, confronted however by the finding in these suits, and the Court-fee will still be payable under Sect. 7, Cl. (XI) (CC). I therefore see no force in the argument which, the learned Subordinate Judge found upon this section and if there were some technical Court-fee difficulty it could presumably be got over by allowing plaintiff to pay the necessary additional sum as now prayed in the 8th ground of appeal and for which Promotha Nath Ganguly v. Amiraddi Sheikh(2) would be authority.

The District Munsif, in rejecting the suit, proceeds rather upon the assumption that there is no proof of tenancy. The Subordinate Judge, it will be remembered, finds that the tenants not having established their occupancy rights can be ejected without further proof. The District Munsif (paragraph 32) following Subramania Ayyar v. T. Onnappa Koundan holds that the burden is upon plaintiff to prove his right to eject, and he cannot presume such a right from the mere fact that defendant has failed to prove occupancy right. This principle which was originally stated in Muthuswami Aiyar v. Nainar Ammal, which Subramania Ayyar v. T. Onnappa Koundan merely affirms (see also Subbarayadu v. Narasimha Rao(3), is obvious even without authority. If a landlord claims a right to eject, and a defendant both denies that right and claims occupancy rights in himself, the rejection of the tenant's claim is no evidence of the landlord's. But if the tenant admits the right to eject, by admitting that he is tenant, but pleads that it is barred by his occupancy right, then the removal of the bar, leaves the admission as effective proof. The case runs exactly on all fours with that which was before the Judicial Committee in Seturatnam Aiyer v. Venkatachela Goundan(4), where Sir Lawrence Jenkins observes at p. 576:

“The plaintiff's title was conceded, and the notice by which he purported to terminate the defendant's tenancy was not disputed. It was also admitted that the defendants held under, if not from the plaintiff. To resist the plaintiff's claim the defendants set up a permanent tenancy or an occupancy right in themselves. If this was not established then the defendants must fail.”

Suryanarayana v. Pattanna(5) and Venkata Sastrulu v. Seetharamudu(6) referred to by the District Munsif in this connection are hardly in point, and probably the argument had proceeded upon Seturatnam Aiyer v. Venkatachela Goundan.

I do not understand from the passage in Subbarayadu v. Narasimha Rao already referred to, that if a landlord prove an occupier to be his tenant, and the occupier sets up occupancy right and fails to prove it, the landlord has to prove anything more. A case seems to be contemplated where the tenant denies the relationship of landlord and tenant and also, as an alternative plea, claims occupancy right in the event of his being found to be a tenant, then of course even if his occupancy right were disproved, the landlord would still be confronted with the denial of tenancy. But of course in an actual trial, the landlord would first be called upon to prove the tenancy, and only after he had fulfilled that task, would the tenant be called upon to prove occupancy right and if the tenant failed to prove such right, the right to eject would be presumed.

The District Munsif's error lay in not seeing that in this case as in Seturatnam Aiyer v. Venkatachela Goundan, there is a clear admission of the plaintiff's title; and such an admission involves an admission of her right to eject. There is no need for plaintiff to fall back upon presumptions. She pleaded, I am landlord; and defendants replied) we are tenants, and that is all that is necessary for plaintiff's purposes, if the defendant's further contention of occupancy right has been rejected.

Therefore neither the District Munsif nor the Subordinate Judge were justified in denying plaintiff a decree on the findings upon the issues. Mr. Venkataramana Rao however, on behalf of respondents would support the decree of dismissal by traversing those findings which are against him. They are no doubt findings of fact but contends that they are based upon an erroneous conception of law.

Issue 4. Has the Court no jurisdiction to try the suit? Here the chief contention is that plaintiff was bound to produce evidence showing whether in determining the quit rent Government took into account the revenue of pre-settlement personal inams, so as to bring this estate within the ambit of the zamindary from which it was originally carved, for the purposes of jurisdiction. If such evidence were available Sanagavarapu Jwala Lakshmi Narasimham v. Mulpuru Veerabhadrudu, would be authority for holding that the ease was triable under the Estates Land Act. That the inclusion or exclusion from the assets of the zamindary is an important consideration is also laid down in Kuppi Reddi v. Bheemanna. The defendants could have raised this point at the trial if so advised; but I cannot find that plaintiff was bound to adduce evidence on the matter, or that her failure to do so vitiates the lower Courts' concurrent finding on the fact.

Then it is argued that in deciding the fact of occupancy rights, the lower Courts have misdirected themselves. In support of this argument, my attention has been called to a mass of judicial decisions between which I do not find much conflict, and if, there is confusion, it is mainly due to the habit of multiplying references in support of propositions so simple that they might rather be left to rest upon the ordinary processes of logic and common sense.

The learned District Munsif has carefully discussed the available evidence in paragraph 16—21 of his judgment and finds that both varams were granted to plaintiff's predecessor-in-title; and defendants have no occupancy rights. The phrase in the Inam Register, Ex. C, “might be vastly improved and enjoyed happily” can hardly be translated “to enjoy the produce” otherwise no exception can be taken to the District Munsif's exposition of the case. So too from paragraph 22 to 26 he shows that the defendants could not have obtained occupancy right by a lost grant or by prescription. Even if a tenant can prescribe for occupancy title, the District Munsif points out that in this case twelve years have not elapsed since the tenants set up occupancy right to their landlord's knowledge. As to the question whether a tenant can so prescribe in law views not easily reconcilable happen to have been expressed by the Judicial Committee. “The defendants clearly acquired their occupancy rights by prescription,” Sivaprakasa Pandara Sannadhi v. Veerama Reddi and “no tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds his lands,” Nainapillai Marakayar v. Ramanathan Chettiar.

I am inclined to hold that persons, as in the present case, who are admittedly paying a rent to a landlord for lands in their occupation, cannot claim to have prescribed for permanent occupation, for the reason that the circumstances of their possession were never incompatible with the landlord's title, and acts of user committed upon land which do not interfere and are consistent with the purpose to which the owner intends to devote it do not amount to a dispossession of the owner. I do not see how a tenant who is paying his rent and whom the landlord has never tried to eject, can render that ejectment impossible merely by stating that if the landlord does make the attempt he will set up a claim of permanent tenure.

The learned Subordinate Judge discusses the question of occupancy right in his 7th paragraph and starts by relying upan a presumption in law that in the case of an inam both melvaram and kudivaram have been granted which he founds upon the decisions of the Judicial Committee in Suryanarayana v. Patanna and Venkata Sastrulu v. Seetharamudu. These rulings are rather to the effect that there is no presumption one way or the other. Suryanarayana v. Patanna negatives the idea that in the case of an inamdar it should be presumed that the grant was of the royal share of the revenue only. Venkata Sastrulu v. Seetharamudu affirms the previous case and rules that each case must be considered on its own facts. In Muthu Goundan v. Perumal Iyen a Full Bench of this Court held that in the case of minor inams there was a presumption that both varams were granted sufficient to throw the burden upon the occupier who claimed occupancy right. This is condemned as a clear error in Sivaprakasa Pandara Sannadhi v. Veerama Reddi and the principle is reiterated that each case must be dealt with on its own facts. But though the opening of his argument is so far at fault, the Subordinate Judge proceeds in conformity to the proper principle by considering the particular facts of the present case, and ends by agreeing with the conclusion of the District Munsif based on an exhaustive examination of the various points. The one error in law does not provide sufficient justification for reopening this question of fact upon second appeal.

It is objected that the disposal of the question of presumption in paragraph 9 of the lower appellate Court's judgment, is inadequate. When an appellate Court can usefully add nothing to the discussion of an issue by the lower Court, its best course is to say as much, and add nothing. It would be intolerable to expect an appellate Court to copy out or paraphrase the lower Court's arguments merely as a guarantee to the superior Court that it has addressed its mind to the matter.

To sum up, having found that defendants were tenants liable to ejectment, the lower appellate Court should not have refused plaintiff a decree on the technical ground that a suit in ejectment assessed under Sect. 7, Cl. (XI) (CC) Court Fee's Act only lies where the tenant is estopped from denying the landlord's title. And the concurrent findings of fact as regards jurisdiction and occupancy right are based on ample evidence and cannot be upset. Therefore plaintiff is entitled to a decree as sued for with costs throughout. The appeal is allowed. This also disposes of the question of costs raised in the memorandum of objections which is dismissed. The lower Court will accordingly ascertain the amount of mesne profits under issue 3 and pass a decree in accordance with the above judgment.

[N. B. The above decision is under appeal. A Letters Patent Appeal has been filed and is pending disposal.]

K.S.DAppeal allowed.