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  • Sadasiva Aiyar
  • Napier, JJ.
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  • Sadasiva Aiyar
  • Napier, JJ.
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Smart Summary

Structured Summary of the Opinion (District Court of Tinnevelly Appeal)

Factual and Procedural Background

This is an appeal from the District Court of Tinnevelly in a suit originally brought by the plaintiff to recover possession of certain land from Defendant 1. The plaintiff's cause of action was based on a lease granted to Defendant 1 and on the plaintiff's title. Defendant 2 applied to be added as a party, alleging that neither the plaintiff nor Defendant 1 ever had any right to the land, that Defendant 2 was the owner and in possession, and that he (and his ancestors) had acquired adverse possession / permanent rights of occupancy by enjoyment.

Defendant 1 remained ex parte, and the litigation proceeded principally between the plaintiff and Defendant 2 (together with some supplementary parties). The lower appellate court held that the plaintiff was the sole owner and that Defendant 2, although in possession, had not established a permanent right of occupancy. Defendant 2 (the appellant) took the matter in a second appeal to the present court.

Legal Issues Presented

  1. Whether the plaint‑mentioned lease is true and valid.
  2. Whether the plaint‑mentioned land belongs to the plaintiff.
  3. Whether the plaintiff has been in possession within the statutory period.

Arguments of the Parties

Appellant (Defendant 2) — Primary Contentions

  • Asserted that the plaintiff was only a farmer of the revenue (a melvaramdar or similar), i.e., not the real owner; ownership of the land was in the appellant (Defendant 2).
  • Maintained that Defendant 1 never had any interest in the land and that Defendant 2 had a permanent right of occupancy — argued by analogy to zamindari tenants prior to the Madras Estates Land Act.
  • At a late stage, contended that no notice to quit had been given to Defendant 2, and therefore the plaintiff was not entitled to eject him.

Respondent (Plaintiff) — Primary Contentions and Responses

  • The plaintiff denied that Defendant 2 was his tenant and sought recovery on the basis of his own title as pattadar (owner under the raiyatwari system).
  • Counsel for the plaintiff (Mr. Srinivasa Aiyangar) contended that the suit was brought against Defendant 1 and that the plaintiff had never recognised tenant rights in Defendant 2; the plaintiff could adduce evidence of a prior denial of the plaintiff's title (dating back to 1911 when Defendant 2 demanded a patta) if required.
  • Implied position: even if some acts such as receipt of rent or small alienations occurred, these did not establish a grant of a permanent right of occupancy by the plaintiff or his predecessors.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Veeranan Ambalam v. Annaswami Iyer Treats whether defendants' possession commenced under the plaintiff as an important question in determining occupancy rights; contains dicta relied upon to support permanence of occupancy. The court noted the case goes some way to support the appellant but declined to follow the dicta from this case to the extent relied upon; the view was not accepted as controlling.
Venkatachala Goundan v. Rangaratnam Aiyar Suggests a pattadar must show that he let the tenant into possession and that the tenant was in fact a year‑to‑year tenant; indicates that a patta by Government does not necessarily preclude permanent occupancy by a possessor. The court observed this decision supports some of the appellant's contentions but declined to follow the dicta in Venkatachala Goundan to the same extent; a judge in the present bench expressly dissented from aspects of its observations.
Anantha Padmanabha v. Gopalakrishnaier Referenced as an instance where the present judge previously declined to follow the authority of Veeranan Ambalam and Venkatachala Goundan on similar points. Used as precedent for the judge's prior approach; cited to justify reluctance to follow the contrary dicta in Veeranan and Venkatachala.
Ponniah Nadan v. Deivanai Ammal Seshagiri Aiyar, J.'s historical approach: Government adopted the raiyatwari system treating the cultivating raiyat found on the land as the cultivating owner; when a cultivating tenant claims a permanent right of occupancy, the burden lies on him to show how he became so entitled. The court (Napier, J.) adopted this decision in its entirety and founded its judgment on the reasons given by Seshagiri Aiyar, J.; the historical test and allocation of burden were accepted as determinative.
Muthusami Ayar v. Nainar Ammal (As cited) A contrary line of reasoning followed by Spencer, J. and Krishnan, J. in this case. Napier, J. stated that the decision of Spencer, J. and Krishnan, J. in this case is incorrect and should not be followed.
Chidambara Pillai v. Thiruvengadathiengar Cited for the proposition that where a tenant under a raiyatwari pattadar sets up a permanent right of occupancy, the burden of proving such right lies on the tenant. Relied on by Sadasiva Aiyar, J. to support the allocation of burden to the tenant claiming permanent occupancy.
Cheekati Zamindar v. Ranasooru Dhvra Summarises the view that permanent holdings under raiyatwari proprietors are unusual and exceptional, placing the onus on the party asserting such a special kind of holding. Quoted by Sadasiva Aiyar, J. to reinforce the proposition that the onus lies on the party asserting permanent occupancy under a raiyatwari owner.

Court's Reasoning and Analysis

Napier, J.'s analysis proceeded primarily by examining competing lines of authority and applying a historical understanding of the raiyatwari system. The key analytical steps and propositions adopted by the court were:

  1. Rejection of the melvaramdar theory: the court rejected the appellant's contention that the plaintiff was merely a melvaramdar (a farmer of revenue) with no ownership, observing there is no authority in the law reports for the proposition that a Government patta amounts to the grant of only part of Government's share in revenue in the sense that a separate melvaramdar would be introduced between Government and the owner.
  2. Treatment of authorities: while acknowledging that Veeranan Ambalam and Venkatachala Goundan lend some support to the appellant, Napier, J. declined to follow the dicta in those cases insofar as they suggest presumptions adverse to the historical nature of raiyatwari settlements.
  3. Adoption of the historical test: Napier, J. adopted in full the reasoning of Seshagiri Aiyar, J. in Ponniah Nadan v. Deivanai Ammal, which treats the raiyatwari settlement historically — Government made settlements with the cultivating raiyat found on the land and intended him to remain as the cultivating owner. From this history the court drew the conclusion that permanent rights of occupancy under a raiyatwari pattadar are exceptional.
  4. Allocation of burden: the court held that where a cultivating tenant claims a permanent right of occupancy, the burden is on that tenant to show how he became entitled to such a right. This approach places the onus on Defendant 2 to prove permanent occupancy.
  5. Assessment of the evidence: although there was some evidence of alienations by Defendant 2's predecessor and of rent being received by the plaintiff or his predecessors, the court concluded that, even if accepted, this evidence fell far short of proving a grant of permanent right of occupancy by the plaintiff or his predecessors.
  6. Notice to quit argument: the late contention that no notice had been given to Defendant 2 was addressed. Napier, J. held that Defendant 2 could not be permitted to change his case at the last moment after having pleaded absolute ownership in himself and denied the plaintiff's title as pattadar; accordingly, the lack of notice argument did not preclude dismissal of the appeal.

Sadasiva Aiyar, J., delivering a concurring opinion on the result, emphasised similar points:

  • He agreed that the burden of proving a permanent right of occupancy lies on the tenant claiming such a right (citing Chidambara Pillai).
  • He dissented from aspects of Veeranan Ambalam and Venkatachala Goundan relied upon by the appellant's counsel.
  • On the procedural point of notice to quit, he observed that Defendant 2 had been allowed to intervene in the originally framed suit and that the plaint ought to have been amended; however, both sides and the Court evidently treated the plaint as so amended. Defendant 2 did not seek to raise an issue about notice in the Munsif's Court and did not raise the point in the lower courts; the notice point was inserted belatedly in the memorandum of appeal as an afterthought.

Holding and Implications

Holding: The court dismissed the second appeal and ordered that the appellant pay the plaintiff's costs.

Direct implications (as expressed in the opinion):

  • The plaintiff's proprietary title was upheld by the court as against Defendant 2's claim of permanent occupancy in the present record.
  • The appellant (Defendant 2) failed to discharge the burden of proving a permanent right of occupancy; the limited evidence of alienations and receipt of rent was insufficient to prove a grant of such permanent rights.
  • The court expressly adopted the reasoning of Seshagiri Aiyar, J. in Ponniah Nadan v. Deivanai Ammal and declined to follow the contrary reasoning in Muthusami Ayar v. Nainar Ammal (described in the opinion as incorrect). Thus, the opinion aligns the present bench with the historical/raiyatwari approach described in Ponniah Nadan and places the onus on the tenant asserting permanent rights.
  • On the procedural contention of absence of notice to quit, the court found the argument to have been raised too late and not properly pleaded earlier; therefore absence of notice did not prevent dismissal.

The opinion does not record any broader rule‑making beyond these conclusions; it rests its decision on the evidence in the record and on the adoption or rejection of prior judicial dicta as indicated above.

Disposition: Appeal dismissed with costs.

Show full summary ...

    Aiyappa Naicker v. Medaithalavoi Thirumalayappa Mudaliar And Others

    Napier, J.:— This is an appeal from the District Court of Tinnevelly in a suit brought by the plaintiff to recover possession of certain property from defendant 1, the suit being based on a lease granted to defendant 1 and on title. The present defendant 2 applied to be made a party, alleging that neither the plaintiff nor defendant 1 had ever any right to the land. This defendant alleged further that he was the owner, and that he was in possession, and pleaded adverse possession from enjoyment by his ancestors. Defendant 1 remained ex parte and the suit proceeded between the plaintiff and defendant 2 and some supplementary parties.

    2. The issues framed were:

    “Whether the plaint mentioned lease is true and valid; whether the plaint mentioned land belongs to plaintiff and whether plaintiff has been in possession within the statutory period.”

    3. The plaintiff has all along denied that defendant 2 was his tenant and as far as he is concerned sought to recover the land on his title. The contention of defendant 2 before the lower appellate Court was that the plaintiff was only a farmer of the revenue of the land; that defendant 1 never had any interest and that he had a permanent right of occupancy in it. This contention was negatived by the Court which held that the plaintiff was the sole owner of the land and defendant 2, although he had shown possession, had not established a permanent right of occupancy. Before us the appellant (defendant 2) put forward the contention that the plaintiff was a mere melvaramdar and that the ownership of the land was in him. The land being Government raiyatwary this contention would entail the proposition that, in addition to the position of the Government as owning the melvaram, there can be another melvaramdar introduced between Government and the owner of the land. Speaking for myself, I was surprised to hear such an argument put forward. But I find that the same contention was advanced an the well-known case of Veeranan Ambalam v. Annaswami Iyer(1). Whatever else was decided in that case however this contention was negatived and it does not require serious consideration. There is not a trace anywhere in the law reports of the view that Government in granting a patta was only granting a portion of its share in the revenue as in some cases of inams. The real substantial argument before us was that, although the plaintiff was the owner of the land, defendant 2 should be held on the evidence to be entitled to permanent rights of occupancy on the analogy of a zamindari tenant prior to the Madras Estates Land Act.

    4. It must be conceded at once that the decisions in Veeranan Ambalam v. Annasawmi Iyer and Venkatachala Goundan v. Rangaratnam Aiyar(2) go some way to support the appellant's contention. The decision in Veeranan Ambalam v. Annasawmi Iyer seems to treat one particular question as of great importance, namely, whether it has been shown that the defendants' possession commenced under the plaintiff, while the decision in Venkatachalla Goundan v. Rangaratnam Aiyar seems to be founded on the proposition that a pattadar must show that he let the tenant into possession and that he was in fact a tenant from year to year. The learned Judges in the latter case also seem to hold that the fact that a patta was granted by Government is no indication that another persons found in possession has not permanent occupancy rights, but that a pattadar must show that the customary mode of holding land in that place justifies the presumption that the tenant has no permanent rights of occupancy. This question has been argued before me on two previous occasions, once in Second Appeal No. 684 of 1917 sitting with my learned brother and once in Anantha Padmanabha v. Gopalakrishnaier(3) sitting with Seshagiri Aiyar, J. On both occasions I declined to follow Veeranan Ambalam v. Annasawmi Iyer and Venkatachala Goundan v. Rangaratnam Aiyar to the extent to which the dicta in those cases commit the learned Judges.

    5. I am relieved from the necessity of considering the present case at any great length, because my attention has been drawn to an elaborate decision of Seshagiri Aiyar, J., sitting with the learned Chief Justice, Ponniah Nadan v. Deivanai Ammal(4), with which I am in entire accord. My learned brother in that case has, if I may venture to say so, applied what I think the most valuable test. He has treated the matter historically and has shown that Government in adopting the raiyatwari system made their settlement with the cultivating raiyat whom Government found on the land and treated him as the cultivating owner and intended him to remain as such. The system was intended to be in direct contrast with the zamindari settlement, under which a number of persons who were in fact mere farmers of revenue were for the first time given an interest in the land but an interest subject to the existing rights of persons then cultivating the lands. I entirely agree with Seshagiri Aiyar, J. that it is not open to us to raise presumptions against this history and I agree with him that wherever we find that a permanent right of occupancy is claimed by a cultivating tenant the burden should be cast on him to show how he became entitled to this right.

    6. I do not propose to pursue the matter further but simply to say that after a careful examination of all the cases and a careful rehearing in this case, I adopt the views expressed by Seshagiri Aiyar, J. in their entirety and would found my judgment on the reasons given by him in that case. It follows therefore that, in my opinion, the decision of Spencer, J. and Krishnan, J., in Muthusami Ayar v. Nainar Ammal(5) is incorrect and should not be followed. In the present case there is some small evidence of alienations by defendant 2's predecessor and also some evidence that rent has been received by the plaintiff from defendant 2 or his predecessors, which would indicate that although the plaintiff was at that time granting leases to persons in the position of defendant 1, he recognized the position of defendant 2. Mr. Srinivasa Aiyangar has argued that this evidence does not conclusively prove the above facts, but I do not think it necessary to examine this; for even if the evidence is to be accepted in its entirety, it falls far short of evidence of a grant of permanent right of occupancy by the plaintiff or his predecessors.

    7. At the last moment, the contention was put forward that no notice had been given to defendant 2 and that therefore the plaintiff was not entitled to eject him. Mr. Srinivasa Aiyangar has met this by saying that his suit was brought against defendant 1, that he has never recognized any rights as tenant in defendant 2 and that if defendant 2 had set up that he was a tenant under the plaintiff which he did not, the plaintiff would have offered evidence of a previous denial of the plaintiff's title as far back as 1911, when defendant 2 demanded a patta from the revenue authorities. In my opinion defendant 2 cannot be allowed to change his case at the last moment, after having pleaded absolute ownership in himself and denied the plaintiff's right of ownership as pattadar. I would therefore dismiss the second appeal” with costs.

    Sadasiva Aiyar, J.:— I agree that where a tenant under a raiyatwari pattadar sets up a permanent right of occupancy, the burden of proving such right lies on him: see Chidambara Pillai v. Thiruvengadathiengar(6). As stated about the above decision by Subramania Aiyar, J., in Cheekati Zamindar v. Ranasooru Dhvra(7):

    “The view of the learned Judges was that permanent holdings under raiyatwari proprietors being unusual and exceptional the onus is on the party setting up such a special bind of holding.”

    8. I do not think that the circumstance that the pattadar figures as the plaintiff in the suit and seeks to eject the tenant places the onus of proof as regards the particular fact upon the plaintiff, that is, that he should prove the negative, that the tenant under him has not got the exceptional rights set up by the tenant. I respectfully dissent from those observations in Venkatachala Goundan v. Rangaratnam Aiyar and Veeranan Ambalam v. Annasawmi Iyer which are relied on by the appellant's learned vakil, Mr. S. Ramaswami Aiyar, in support of his contention on this point.

    9. As regards the question of notice to quit, the contesting defendant 2 (the appellant) was allowed to intervene in the suit which was originally brought against defendant 1 alone. Defendant 2 was added in September 1914 (the suit having been brought in August 1914). The District Munsif ought to have then allowed and directed the plaintiff to amend the plaint (a) by the addition of the necessary allegations indicating the plaintiff's title to eject the newly added defendant 2, (b) by amending the relief para. (10) by adding the necessary reliefs prayed for against defendant 2. Both sides however seem to have treated the plaint as so amended, and it was evidently understood between all parties and the Court that if the plaintiff established his proprietary right to the land and if defendant 2's alleged permanent occupancy right was found against by the Court the plaintiff's suit in ejectment against defendant 2 should be decreed on the basis that the amended plaint contained all the necessary allegations such as the service of a proper notice to quit on defendant 2 if he was lessee or on the real lessee, if he was sub lessee or a denial of the landlord's title before suit by defendant 2 or by the intermediate lessee, such allegations if established, entitling the plaintiff to eject defendant 2, even supposing that defendant 2 was a tenant from year to year or a sublessee from a lessee for years and not a mere trespasser. Defendant 2 did not apply to the Munsif to raise any issue on the question of notice. This view is strengthened by the fact that the plea of absence of notice to quit was not raised in either of the Courts below and was not evidently thought of when the memorandum of second appeal was drafted in the first instance, as the ground has been inserted as an afterthought between grounds 6 and 7 and marked 6(a) in the memorandum of appeal. In the result I agree that the second appeal should be dismissed with the plaintiff's costs.

    S.N/R.K

    10. Appeal dismissed.

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    Comments

    Aiyappa Naicker v. Medaithalavoi Thirumalayappa Mudaliar And Others
    (Mar 10, 1919)