1. The plaint sets forth that plaintiffs Nos. 1 and 2 and defendant No. 1 have taken on lease certain lands in the shrotriem village of Kolathangananullur from the shrotriemdars and have been put into possession of a great portion of the lands comprised in the said lease, but that defendants Nos. 2 to 9 obstructed plaintiffs in obtaining possession of the suit lands, notwithstanding that they have been warned not to do so by the shrotriemdars. Hence this suit for possession.
2. Defendants Nos. 2 to 9 claimed to be in possession and enjoyment of the suit lands under tenancy rights derived from their ancestors, and contended that the shrotriemdars, as grantees of the village from the Udayarpalliem Zamindar, are entitled to the melvaram on the lands only, but not to the lands themselves.
3. Four issues were framed, but the District Judge states that issues 1 and 2 were dropped and that the suit was fought out on issues 3 and 4. On these he found that defendants Nos. 2 to 9 were raiyats with rights of permanent occupancy and that the shrotriemdars and therefore their lessees (the plaintiffs) were not entitled to the lands themselves. The suit was therefore dismissed with costs and the plaintiffs appeal.
4. An objection was first taken that defendant No. 1 had not been made a respondent in the appeal, but on our intimating that all that was needful was to add him as a formal respondent, the objection was not pressed. He was examined as a witness in the Court below and intimated that he would have joined plaintiffs in bringing the suit but for his temporary absence from the district.
5. The real point in the case is whether the shrotriemdars are the owners of the village or only entitled to the melvaram. In addition to the oral evidence the plaintiffs rely upon two classes of documents, viz.
(1) Documents executed by the predecessors-in-title of defendants Nos. 2 to 9 showing that the executants were purakudis and not occupancy raiyats.
(2) Documents executed by other tenants in the same village which show that they were purakudis.
6. The District Judge doubted (paragraph 17 of the judgment) whether documents of this latter class were admissible in evidence, but we have no doubt that they may properly be considered. The defendants are not of course concluded by them, but the documents are relevant evidence under Section 13 of the Evidence Act as showing the tenure on which the village is held. see Ramasami v. Appavu I.L.R., 12 Mad., 9 and Jianutullah Sirdar v. Romoni Kant Boy I.L.R., 15 Cal., 233.
7. Exhibits F.J. and N are documents of the former class; Exhibit F was executed by the ancestor of fourth defendant, Exhibit J by the ancestor of defendants Nos. 6 and 7, and Exhibit N by the ancestor of defendants Nos. 2 and 3. These documents relate to the plaint lands. They are cultivation muchalkas for two years each and Exhibit J contains a clause for surrender at the expiration of that time.
8. These documents are spoken to by the fifth witness for the defendants. Their general tenor is no doubt against the existence of occupancy rights, but the District Judge accounts for this by observing that the raiyats were in poor circumstances and that pressure was brought to bear in order to make them execute the documents. We may point out, however, that this was no part of the defence set up, and though the fifth defence witness does make such a statement, it was in answer to a question put by the Judge himself at the close of the case and was not elicited by the pleader for the defendants. This witness was formerly a karnam in the service of the shrotriemdars and was dismissed by them.
9. Turning to the oral evidence the first plaintiff was the first witness for the plaintiffs. He is one of the lessees and has been agent to the shrotriemdars for twenty years, so that he has certainly had full opportunity of ascertaining the tenure of the village before taking his lease. He deposed that 214 cawnies of the land leased was in possession of the lessees and that it was only the 35 cawnies now sued for of which they had failed to obtain possession.
10. Witnesses were also called to prove that the defendants had only been cultivating the lands for four or five years, the lands having been previously let to kallars from Polurgudi. Against this oral evidence the defendants have nothing (except the dismissed karnam), but four raiyats who are still in possession of their holdings and who claim occupancy rights. It is not shown that their lands are included in the lease to plaintiffs, and on cross-examination they admitted they had no pattas and could not produce any partition deeds, sale deeds, etc., or documentary evidence of any kind which would show that they had dealt with the lands as possessing the kudivaram right therein.
11. The Judge refers to the Inam Register Exhibit II as corroborating the defendants' case. In our opinion the reverse is the inference. These high rates are inconsistent with occupancy rights. The facts (1) that the shrotriemdars are the grantees under a Zamindar, (2) that the Inam title-deed is for the land itself, (3) that no pattas have ever been given, (4) the absence of any documentary evidence of sale or mortgage, (5) that the shrotriemdars have rented the lands themselves at high rates, all go to show that the shrotriem is not the melvaram, but the land itself. We think the evidence altogether fails to prove that the individual defendants have been for a long term of years in possession or that they have inherited or acquired occupancy rights.
12. It was finally objected that in any case the defendants were entitled to notice to quit. The cases cited by the learned pleader refer to suits in ejectment brought by the landlord. Here, however, the evidence fails to prove that the defendants were in possession as tenants at the date when the Suit was filed, and no issue was taken on this point though it was expressly stated in the plaint that the shrotriemdars had warned defendants not to obstruct. The plaintiff's as lessees are clearly entitled to bring the suit. see Achayya v. Hanumantrayudu I.L.R., 14 Mad., 269.
13. On these grounds we must reverse the decree of the District Judge and decree plaintiffs' possession of the lands sued for with costs in both Courts against defendants Nos. 2 to 9, who have made a joint defence. The first defendant will bear his own costs in the lower Court.