Indian Kanoon - Search engine for Indian Law

1. This Letters Patent Appeal arises out of a suit in the Court of the District Munsiff of Repalle in which the plaintiff (respondent) claimed possession, rent and mesne profits in respect of two acres 59 cents of agricultural minor inam land from defendants 1, 2 and 3 (appellants 1, 2 and 3); no claim was made against defendant 4 (appellant 4) nor against defendants 5 and 6 (respondents 2 and 3); the last two named parties were joined, pro forma, as they were vendors of the land in suit to the plaintiff whose claim they supported. The learned District Munsiff dismissed the suit; an appeal by the plaintiff to the Court of the Subordinate Judge of Tenali was allowed; a second appeal by defendants 1 to 4 to this Court was dismissed by Chandrasekhara Aiyar, J., who, on the ground that difficult questions were involved, granted a certificate to prefer an appeal pursuant to the Letters Patent of the Court; upon that appeal coming before a Bench, reference was made to two decisions of this Court, each given by a Bench, in Zamindar of Parlakimedi v. Ramayya (1926) 51 M.L.J. 510 and Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 which, it was stated, are in conflict. The appeal has been posted before a Full Bench since it is convenient for all points arising in it to be heard at the same time.

24. There, the occupancy right was held to have been proved, so the plaintiffs failed to obtain an order for possession. But, although that observation was made in a case where, by reason of a concession or an admission, no consideration arose beyond the question whether the tenants were entitled to occupancy rights, it is explicitly laid down that the burden is upon the tenant to establish an occupancy right when it is pleaded as an answer to a claim to possession by a landlord. Another decision of the judicial Committee, to a like effect, is found in Nainapillai Marakayar v. Ramanathan Ckettiar (1923) 46 M.L.J. 546 : L.R. 51 I.A. 83 : I.L.R. 47 Mad. 337 (P.C.). Mr. Raghava Rao sought to confine the principle to a case when the landlord has, himself, put the tenant into possession and he referred to an observation by Madhavan Nair, J., at page 524 in Zamindar of Parlakimedi v. Ramayya (1926) 51 M.L.J. 510 where reference is made to two decisions of the Board in Secretary of State for India in Council v. Luchmeswar Singh (1888) L.R. 16 I.A. 6 : I.L.R. 16 Cal. 323 (P.C.) and Sethuratnam Iyer's case (1919) 38 M.L.J. 476 : L.R. 47 I.A. 76 : I.L.R. 43 Mad. 567 (P.C.) regarding the burden of proof of occupancy rights in an action for possession; the learned Judge then points out that in each of those two cases, the tenants had been let into possession by the landlord.

26. However, in the present case, all the evidence being before the learned Subordinate Judge he found, as a fact, that defendant 1 and his predecessors had not a right of permanent occupancy and that finding cannot be challenged and it stands.

27. The conflict between the decisions in Zamindar of Parlakimedi v. Ramayya (1926) 51 M.L.J. 510 and Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 is that in a suit where the plaintiff claims possession against which the defendant asserts a permanent occupancy right, the former decision held that upon the failure to establish the right, the plaintiff still had to prove that the letting was a terminable one and that it had been determined; whereas the latter decision took the contrary view, holding that, upon failure by the defendant to establish the right asserted, thereupon the plaintiff was entitled to a decree in ejectment. In Venkateswarlu v. Lakshmana (1944) 1 M.L.J. 160 Horwill, J., following the Zamindar of Parlakimedi's case (1926) 51 M.L.J. 510 took the view that the burden still remained upon the landlord of proving his right to evict but Krishnaswami Aiyangar, J., expressed the opposite opinion and preferred the decision in Aiyanars case (1929) 30 L.W. 583; by reason of the difference in the views of those two learned Judges, the matter was referred to King, J., who discussed the relevant authorities and expressed the opinion that when a tenant admits the melwaram right is vested in the landlord but claims that the occupancy right is vested in him, he must prove that right in order to defeat the claim for possession by the plaintiff, who is not required to establish the tenancy is terminable and that it has been determined.

28. Now returning to the present case when the property in suit is agricultural land and was let for that purpose, Section 106 of the Transfer of Property Act provides that in the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural purposes shall be deemed to be a lease from year to year terminable by six months' notice expiring at the end of the year of the tenancy. Whilst that section does not apply to leases for agricultural purpose, by virtue of Section 117 of the Act, nevertheless, it has been observed and laid down in a series of decisions of this Court that the rules in Section 106 and in the other sections (Sections 105 to 116) in Chapter V of the Act are founded upon reason and equity; they are the principles of English law and should be adopted as statement of the law in India applicable to agricultural leases. (Vide Vasudevan Nambudiripad v. Valia Chathu Achan (1900) 10 M.L.J. 321 : I.L.R. 24 Mad. 47 (F.B.) Gangamma v. Bommakka (1909) I.L.R. 33 Mad. 253 Appa Rao v. Subbanna (1889) I.L.R. 13 Mad. 60 Nanjappa Goundan v. Rangaswami Goundan (1940) 1 M.L.J. 200 and Thirumalreddi Inna, Reddi v. Gade Gopireddi (1943) 1 M.L.J. 43. The first of those decisions was pronounced by a Full Bench, the second and third by Benches and the last two are each decisions by single Judges. Applying these principles to the present case, it follows that the tenancy was one from year to year and was a terminable one. Since no point is taken that, the tenancy being terminable it was not duly determined, it is manifest that the plaintiff was, in fact, entitled to an order for ejectment at the date when the suit was instituted. There-fore consideration of the conflict between the Zamindar of Parlakimedi's2, and Aiyanars'3, cases is not pertinent in the present instance, whichever may be the correct view, and the question does not arise whether, in the absence of termination of the terminable tenancy, the plaintiff would have been entitled to the relief which she claimed.