1. In this. case the plaintiff, the holder of a permanently settled estate, seeks, among other things, to eject the defendant from certain lands. Admittedly, the lands are situated within the plaintiff's estate and are subject to an annual' assessment payable by the defendant to the plaintiff.
2. The decision of the case depends solely upon these facts, no other facts having been satisfactorily established by the evidence.
3. In this state of the case the Lower Appellate Court dismissed the suit in so for as the prayer far possession was concerned. On behalf of the plaintiff it was contended that the dismfssal was erroneous and that the error was caused by the lower appellate Court having wrongly thrown the onus of proof on the plaintiff. The argument in support of the contention. was that upon the admitted facts, the finding must be that the defendant was a tenant from year to year and as due notice to quit had been given, the tenancy had been determined before the date of the action and the defendant ought to have been ejected.
4. Section 106 of the Transfer of Property Act to which refenence was made on behalf of the plaintiff; does not apply to the case. If however, there was a similarity between the relation of the landlord. and tenant in England and that subsisting here between the plaintiff and the defendant, the English rule embodied in that section, that a general occupation is an occupation from year to year would go far to support the contention for the plaintiff. But there is a very material difference between the relation of landlord and tenant in England and that of a zamindar and a ryot or cultivating proprietor, or, to speak more accurately, the person in whom, with reference to Government or its assignees, the right to occupy the soil for purposes of cultivation is to be taken as vested.
5. Now a tenant, of course, derives his right from the landlord; and in the case of a person thus acquiring his title, the rule referred to is unquestionably a most equitable rule. For the theory as to the relation of landlord and tenant in England led to the view that, in the absence of proof to the contrary, every tenancy was to be taken to be a tenancy at will. In fact such was the rule until the Judges altered it and laid down that general tenancies should be presumed to be, not tenancies at will, but tenancies from year to year; as was explained in Doe v. Porter 7 T.R. 85 where Lord Kenyon pointed out that a tenancy from year to year succeeded to the old tenancy at will, which was attended with many inconveniences, and in order to obviate them, the Court very early raised an implied contract for a year and added that a tenant could not be removed at the end of the year, unless he had received six months previous notice (3 T.R. 13., see also Doe d Martin v. Watts 7 T.R. 85. But sound and reasonable as this rule would be if applied to cases in which the right of a defendant in possession is derived in a manner similar to that of a tenant in England, it cannot on principle be extended to cases in which the defendant's right is not so derived. Now, there is absolutely no ground for laying down that the rights of ryots in zamindaries invariably or even generally had their origin in express or implied grants made by the zamindar. The view that in the large majority of instances it originated otherwise is the one most in accord with the history. of agricultural land-holding in this country. For in the first place, sovereigns, ancient or modern, did not here set up more than a right to a share of the produce raised by ryots in lands cultivated by them, however much that share varied at different times. And, in the language of the Board of Revenue, which, long after the permanent settlement regulations were passed, investigated and reported upon the nature of the rights of ryots in various parts of the Presidency, whether rendered in service, in money or in kind and whether paid to Rajas, Jagirdars, Zamindars, Poligars, Mittadars, Shro-triemdars, Inamdras or to Government officers, such as Tahsildars, Amuldars, Amins or Thannadars, the payments which have 'always been made or universally deemed the due of Government.' (See the Proceedings of the Board of Revenue, dated 5th January 1818, quoted in the note at p. 223 of Dewan Bahadur Srinivasa Raghava Ayyangar's Progress in the Madras Presidency.) See also paragraphs 75 to 78 of the exhaustive observations of the Board as to the relative rights of Zamindars and ryots in the Board's Proceedings of the 2nd December 1864, appended to the second report of the' Select Committee on the Rent Recovery Bill, 1864, V., Madras Revenue register at p. 153). Therefore to treat such a payment by cultivators to zamindars as 'rent' in the strict sense of the term and to imply therefrom the relation of landlord and tenant so as to let in the presumption of law that a tenancy in general is one from year to year would be to introduce a mischievous fiction destructive of the rights of great numbers of the cultivating classes in this province, who have held possession of their lands for generations and generations. In support of the view that there is no substantial analogy between an English tenant and an Indian ryot, it is enough to cite the high authority of Sir Thomas Munro. Writing in 1824, he observes 'the ryot is certainly not like the landlord of England but neither is he like the English tenant.' (Arbuthnot's Munro, Vol. I, p. 234.) And why is this so? It is for the simple reason that the rights of ryots came into existence mostly not under any letting by the Government of the day or its assignees, the zemindars, etc.. but independently of them. According to the best native authorities such rights were generally acquired;.by cultivators entering upon land, improving it, and making it productive,. As observed by Turner G. /., and Muthusami Aiyar, J, in Siva-subramanya v. Secretary of State for India, 'Manu and other Hindu writers have rested private property in occupation as owner' (L.L.R., 9 M. at p: 306). And in Secretary of State v. Vira Ray an, the same learned Judges pointed out 'according to what may be termed the Hindu common w, a right to the possession of land is acquired by the first person. ho makes a beneficial use of the soil' (IL. at p. 179). Hence the well known division in these parts of the great interests in land under the two main heads of the melvaram interest and the kudivaram interest. Hence also the view that the holder of the kudivaram right, far from being a tenant of the holder of the melvaram right, is a co-owner with him. Sir T. Munro puts this very clearly. He says 'a ryot divides with Government all the rights of the land. Whatever is not reserved by Government belongs to him. He is not a tenant at will, or for a term of years. He is not removable because another offers more' (Arbuthnot's Munro, Vol. I, p. 234, See also Ib. p. 253). No doubt the view of the majority of the Judges (Morgan, C.J., and Holloway, J., Innes, J., dissenting, in Fakir Muhammad v. Tirumala Ghariar I.L.R. M. 205 was different. But in The Secretary of State for India v. Nunja, Turner, C, J. and Muihusami Aiyar, J., stated that they saw strong reason to doubt whether the view of the majority in that case was right I.L.R. 5 M. 163.
6. It thus seems unquestionable that prima facie a zamindar and a ryot are holders of the melvaram and kudivaram right respectively. When, therefore, the formei sues to eject the latter it is difficult to see why the defendant in such a case should be treated otherwise than defendants in possession are generally treated, by being called upon in the first instance to prove that they have a right to continue in possession. One can see no other reason for making such a difference than that certain legislative enactments, especially those passed at the beginning of the century, refer to ryots as tenants and to the payment made by them as rents. But considering that those enactments were intended for particular purposes and considering that Reg. IV of 1822, expressly declares that the actual rights of any of the land-holding classes were not intended to be affected by the earlier regulations, the phraseology of those enactments should not be taken to operate to the prejudice of persons between whom and zamindars the prima fade relation is only that between the holder of the kudivaram right and the holder of the melvaram right in a given piece of land as shown, above. Consequently it is obvious that in a suit like the present the zamindar should start the case by evidence of his title to eject, In other words he has to prove that the kudivatam right in the disputed land had been vested in him or his predecessors and that the land subsequently passed to the defendant or some person through whom he claims under circumstances which give the plaintiff a right to eject. This is clear from Srinivasa Chetty v. Nanjunda Chetty I.L.R. 4 M. 174 See also, Appa, Rau v. Subbanna I.L.R. 13 M., 60 and Verikataeharki v. Kandappa I.L.R. 15 M. 95. In the first mentioned case Muthusami Aiyar and Tarrant J) J., said 'But Viraman's (the then defendant's) tenancy has been found to be that of an ordinary pattadar, and we apprehend that such a tenancy, where there is no evidence of a contract as to its origin and duration, or that the kudivaram right vested in the Mittadar, (the then plaintiff) at any time, entitles the tenant to the right of occupancy for the purpose of cultivation determinable on the conditions prescribed by (Madras) Act VIII of 1865,' I.L.R 4 M. 176The contention that the ryot was merely a tenant from year to year was distinctly raised in the above case but was virtually, if not expressly, overruled-We must likewise decline to accept the similar contention urged here on behalf of the plaintiff, It may, perhaps, be asked what is, the nature of the holding of persons in the position of the defendant in the lands they hold if they are not tenants from year to year. There can be no hesitation in replying to this question, that in essence there is no difference between a ryot holding lands in a zamindari village and one holding lands in a Government village (Arbuthnot's Munro, Vol. I., p. 254) and like the latter ryot, the former ryot, in the absence of proof of contract or of special or local usage to the contrary is entitled to occupy his lands so long as he pays what is due and if he should commit any default in this or other respect, until he is evicted by the processes provided bylaw.
7. The decree of the lower appellate Court is right; the second appeal fails and is dismissed with costs.
8. The memorandum of objections is also dismissed with costs.