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.