GOPALA KUDVA Vs. JUVAPPA KAMATHI

JUDGEMENT

(1.) On the allegation that the defendants were chalgeni tenants under the plaintiff and that the tenure had been determined by due notice to quit the plaintiff instituted the original suit to recover possession of the land with some profits. Both the lower Courts have dismissed the plaintiff's suit. Hence, this second appeal has been preferred by the plaintiff.

(2.) The first point noted by the lower appellate Court for decision is: "Do the defendants hold the suit property on kayamgeni or chalgeni?" The finding upon this point is contained in paras. 8 and 9 of the lower appellate Court's judgment. After noticing that the defendants had been paying only a uniform rent of Rs. 18 per annum, that in about 1902 or 1903 the defendants refused to pay increased rent, and that in about 1912 the defendants informed the plaintiff under Ex. O (reply notice) that they were holding the properties as kayamgeni tenants, the lower appellate Court proceeded to state as follows: In these circumstances, it seems to me that a presumption has to be made in favour of the defendants that the tenure is kayamgeni or mulgeni : Kittu Kegadthi V/s. Channamma Shettathi [1907] 30 Mad. 528 and Raghavacharlu V/s. Secy. of State [1915] 28 I.C. 599.

(3.) The learned Counsel for the appellant relies upon the observations of their Lordships of the Privy Council in Nainapillai Marakayar V/s. Ramanathan Chettiar A.I.R. 1924 P.C. 65 that the onus of proving that they had a permanent right of occupancy in lands was upon the defendant who alleged it as a defence to a suit by their landlord to eject them, and that proof of long occupation at a fixed rent did not satisfy that onus.