Seshagiri Aiyar, J.:— The learned Judge is right in holding that the conclusion of the District Judge is based upon facts proved in the case and that there is no question of law.
2. The District Judge refers to evidence which shows that the defendants have been accepting leases from the plaintiff in respect of the suit lands.
3. This is inconsistent with their claim to an occupancy right; when the crops were attached and their claim was rejected, they brought no suit to establish their claim to an occupancy right. On these facts, the District Judge is right in concluding that the defendants have failed to make out their right and that the plaintiff, whose title as pattadar is undisputed, is entitled to recover possession. I do not express any opinion whether the view taken in Veerana Ambalam v. Annasawmi Aiyar(1) and Venkatchala Goundan v. Rangaratnam Aiyar(2), that there is no presumption against the right of occupancy in a ryotwari village, is sound. I under, stand that the latter decision is under appeal to the Privy Council.
4. This appeal must be dismissed with costs.
Napier, J.:— In my opinion the District Judge has rightly stated the law with regard to ordinary ryotwari land.
5. I accept the view of Collins, C.J, and Muthusawmi Aiyar, J., stated in Appeal No. 1 of 1886 [Chidambaram Pillai v. Thriuvengadathiengar(3)]:
“The claim of an occupancy right as overriding the proprietor's right to cultivate his own lands is of a special character, and as such it is one which the party, seeking to derogate from the ordinary incidents of property, is bound to establish.”
6. The District Judge has examined the evidence and found that the appellant has not established that right and in my opinion, Miller, J., was right in refusing to interfere with that finding as one of fact. I would like to add that I strongly deprecate the use of the words “kudivaram interest” for such right even when established, and I can find no authority for it in the case in Venhataohalla Goundan v. Rangaratnam Aiyar which is relied on.
7. The Letters Patent appeal is dismissed with costs.
S.N/R.K
8. Appeal dismissed.