TMI Blog1923 (12) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... in each suit are part of the village of Mangal in Tanjore, and are part of the endowed property of the temple. It is not disputed that the defendants were tenants of the temple of lands to which the suits relate, nor is it now disputed that they received notices to quit. The defendants admit that the melvaram rights in the property in question are vested in the temple, but their case is that the kudivaram rights in that property are vested in them and never were vested in the temple, and they claim that they have permanent rights of occupancy in the lands under Section 6 of Madras Act I. of 1908, and also independently of that Act. 4. It cannot now be doubted that when a tenant of lands in India in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant. In Secretary of State for India v. Luchmeswar Singh L.R. 16 I.A. 6 it was held that the onus of proving that they had a permanent right of occupancy in lands was upon the defendants, 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi Seetharamudu L.R. 46 I.A. 123, where it was mentioned by the Board that the kudivaram or kudivaram interest, as it is called in Section 8 of the Act, is in fact a species of tenant right or right of permanent occupancy. 9. It is the plaintiffs' case that the village of Mangal, including the melvaram and kudivaram rights in it, was at some time before 1723 granted as an endowment to the temple by the then Raja of Tanjore, subject to a yearly payment in cash to the Raja, part of which he remitted to the temple as an allowance for the maintaining of puja at the temple. The grant, or sanad, has been lost. The Raja of 1723 had recalled the grant, but had continued the cash allowance to the temple. In 1723 the managers of the temple complained to the then Raja of Tanjore that the allowance in cash was insufficient to maintain the puja at the temple, and thereupon the Raja granted to the temple a sanad which as translated is as follows : Rokha Dafter Karkoon. Ta: (Taluq) Kovil Kottay...(illegible) Kadoorambh. On Thursday thirtieth Vaisak Bahoolam Sobhankruth Samvatsar, Soorsan year Art)a Isarin Muyu Alph (1124), at Vedarania on the auspicious occasion of the solar eclipse, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Government, printed at Madras in 1883. 11. In 1724 an official memorandum was sent to the State officer of Kadaramban, which mentioned the petition upon which the sanad of 1723 was granted and continued thus : An arzi was therefore submitted praying that Saheb Avargal would be pleased to pass orders for continuing the rokkaguthakai village as before and thereupon an order was passed accordingly for treating Mangalam village inclusive of nanja and punja as rokkaguthakai village for Sri Budhipradeswaraswami of Kovilkottai, for 125 pons per annum. Beriz fixed therefore is as follows : Previous guthakai, 100 pons; increase now made, 25 pons; total, 125 pons. It was granted for this sum. Out of this sum, 72 pons, being the annual allotment made for the Sirkar pooja mohini shall be remitted, and the balance of beriz credited to the Sirkar. This shall be followed every year. The original sannad shall be returned to the Stanikar after taking a copy thereof. (By order of Huzur.) Seal of M. R. Ry. Hazarath Siva Rao Narasinga Rao Peishwa. 12. There can be no doubt that the sanad of 1723 was granted : the only question as to it is, what does it mean? 13. That sanad of 1723, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r believed to be the title to the village of Mangal and to all the lands in that village. 16. In the paimash, or survey account, for fasli 1226 (1816 or 1817), the person then in the enjoyment of the total nunja (dry land), punja (wet land), tope and manai garden, of the village of Mangal was stated to be the temple, and the enjoyment was stated to be rokkaguthagai ekabhogam. In the paimash for fasli 1238 (1829), the village of Mangal was described as a rokkaguthakai miras ekabhogam village, which meant that it was a rokkaguthakai village and that all the lands in the village were the property of one proprietor. 17. It is stated in the judgment of the High Court--and it must be assumed correctly - that 21 velis of the wet land of the village of Mangal were cultivated by the temple, by its servants and with its own ploughs, before 1820, and that in those 21 velis of the endowed lands the temple then owned both the melvaram interest and the kudivaram interest, and the defendants were unable to explain how it happened that the temple could have owned the kudivaram interest in 21 velis only of the endowed lands. 18. It was proved that in 1883 a small area of the waste land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or the trustees of a temple, is, so far as their power to deal with the endowed lands of the temple is concerned, analogous to the position of a mahant of a math to deal with the endowed lands of a math. They can doubtless soil or mortgage the endowed lands of the temple if there is an actual, special, and unavoidable necessity of the temple to do so, but that necessity would have to be proved by those who alleged that it existed. Except in a case of such unavoidable necessity the sebait, the managers or the trustees of a temple;, or the mahant of a math, have no power to sell or mortgage the endowed property in their custody, and obviously they have no right to impair the endowed property by creating or granting in favour of any one rights of permanent occupancy in the endowed lands. The law on this subject is well established : see Shibessouree Delia v. Mothooranath Acharjo 13 Moo. I.A. 270, 275; Abhiram Goswami v. Shyama Charam Nandi L.R. 36 I.A. 148; Palaniappa Chetty v. Deivasikamony Pandora L.R. 44 I.A. 147; Vidya Varuthi Thirta v. Balusami Ayyar L.R. 48 I.A. 302. In the case of a sebait a grant by him in violation of his duty of an interest in endowed lands which he has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they took the endowed lands for a term from fasli 1241. That muchalka is absolutely inconsistent with any of the tenants having then any right of permanent occupancy in any of the endowed lands of the temple and with their believing that they had any right of permanent occupancy in any of the temple's lands. In 1870 Sir C.H. Scotland G.J. held that when a tenancy in the Presidency of Madras commenced under a terminable contract there was nothing to prevent the landlord, from ejecting the tenant at the end of the term from the lands which had been let to him : see also Mayandi Cheltiyar v. Chokkalingam Pillay L.R. 31 I.A. 83. 25. One of the reasons for these consolidated appeals as stated in the case for the appellants is : 4. Because the appellants have acquired permanent occupancy right by prescription. No tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands : see Saundalgekar v. Raghunath Venkatesh L.R. 50 I.A. 255. 26. Another reason for these consolidated appeals as stated in the case for the appellants is : 5. Because the respondents having allowed and recognised the alienat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple. It has not been proved that there ever were any lands in the village in which, by grant or custom, there was any right of a tenant to a permanent occupancy, and the only presumption which their Lordships can make in the cases of such sales and mortgages is that it was to the interests of the temple that the ordinary cultivators of the temple lands should be solvent persons, and not persons who were compelled to sell or mortgage such interest as they had in the lands in order to raise money. 28. All the documents and papers from which their Lordships have been asked by the counsel for the defendants to presume that the defendants had rights of permanent occupancy in the lands in suit were before Mr. G. Kothanda Ramanjulu, the Subordinate Judge who tried the suits, and on the appeals before Sadasiva Aiyar J., who wrote the judgment of the High Court, with which Napier J. concurred. All those learned judges were, from their local knowledge, in a better position than their Lordships are to appreciate correctly the meaning of the vernacular terms in use in the Tamil country of Tanjore in reference to interests in lands, and all those learned judges, in carefully considered and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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