Judgement Consolidated Appeals from a judgment and three decrees (February 18, 1913) varying three decrees of the District Judge of Trichinopoly (July 27, 1909), which varied decrees of the District Munsif of Kulitalai. The suits which gave rise to the present consolidated appeals were brought in the Court of the District Munsif by one Rangaratnam Aiyer, since deceased, and now represented by the appellants, against numerous defendants represented by the respondents. The plaintiff claimed to eject the defendants, the persons in possession of the lands in question, as being yearly tenants who had received due notice to quit. The plaintiffs title was not in dispute in the appeals. It appeared that the lands in question formed part of a samudayam estate long held in common by certain Brahman families, and (with other land) fell to the plaintiff, one of the pangalis or sharers, upon a partition in 1897. In 1869 and in 1885 pattas had been issued to the sharers by the Government " showing the particulars of land in your occupation, the assessment charged on each field and the kist payable to the monegar." These pattas consolidated the holdings which as to the greater part came under a settlement by the collector and an inam grant both made at the beginning of the century. The lands in suit had originally been waste, and at the date of the plaint were of three classes—namely, (1.) garden lands—i.e., lands with a well; (2.) dry lands—i.e., lands cultivated but containing no well; and (3.) pasture lands which Had never been brought under cultivation. The effect of the decrees passed by the Courts in India, and the views upon which they were based, appear shortly from the judgment of their Lordships. The present appeal related to lands of the first two classes above mentioned, as to which the High Court upon a second appeal had reversed decrees made by the District Judge in favour of the plaintiff ; no question arose as to the pasture lands, as to which the High Court affirmed the decrees of the District Judge for possession. The present appeal related to lands of the first two classes above mentioned, as to which the High Court upon a second appeal had reversed decrees made by the District Judge in favour of the plaintiff ; no question arose as to the pasture lands, as to which the High Court affirmed the decrees of the District Judge for possession. In the High Court the learned judges (Benson and Sandara Aiyar JJ.) in their judgment said that they had pointed out in the order of remand that the District Judge was wrong in starting with the assumption that ryots holding under a pattadar must be held to have been originally tenants from year to year, who were bound to show that their right was subsequently converted into a permanent right; there was a great deal of evidence adduced by both parties which would have enabled the Court to give a decision on the question of the occupancy right claimed quite irrespective of the onus of proof. The District Judge in his order sub mitting findings had again assumed that the defendants original right was as tenants from year to year, and that it lay on them to prove an express or implied contract by which that right was changed to one of permanent occupancy. Referring to the facts found by the District Judge and the facts admitted, the learned judges said “We take it as established (1.) that the ryots of the village have been immemorially in possession of the lands, and that they have not been proved to have been ever let into occupation by the mirasidars ; (2.) that they have been paying a uniform rate of rent; (3.) that the lands were reclaimed and brought under cultivation by them ; (4.) that they have made large improvements and carried on the cultivation either of dry or garden crops of their own choice without any interference or objection by the mirasidars ; (5.) that they have for a very long time been making alienations, sometimes of wells, sometimes of both wells and lands, and sometimes of the right of cultivating the lands along with the wells alienated. The question for decision is whether on these facts the plaintiff is entitled to eject the defendants on the mere ground that he is the pattadar of the lands." After a consideration of the various decisions of the Madras High Court and passages in the Fifth Report (Madras Presidency) they rejected the contention that the pattadar must be treated as owner, and that any person in occupation was to be deemed as holding under him as tenant from year to year, it lying upon him to show that he acquired a permanent occupancy right from the pattadar. "In the present case,” they said, " there is hardly a single circumstance in the plaintiffs favour except the bare fact that he is pattadar of the land. We see no reason to depart from the ruling in Veeranan Ambalam v. Peria Kampalam Ambalam (( 1911) 21 Madr. L. J. 845.), that that by itself is not sufficient to entitle the appellants to a presumption that the defendants either originally came in as tenants from year to year or subsequently agreed to hold as such. The plaintiff has made no attempt to prove that the customary mode of land-holding in the particular tract of country where the village is situated would justify such a presumption. On the other hand, there can be no doubt that purakudies with the occupancy rights were by no means uncommon in the district where the lands in question are situated.....The fact that the defendants brought the lands in the village under cultivation and spent their own money in making improvements without any help from the mirasidars is of the greatest possible weight against the respondent." They concluded as follows "We hold that the mere fact of the plaintiff being the pattadar does not entitle him to any presumption in his favour, and we also hold that, even if that fact could be of any use to him, the various circumstances proved un-rebutted by anything in the plaintiffs favour necessarily raise a presumption that the defendants have occupancy rights. We do not think any distinction can be drawn between the garden lands and the dry lands in the defendants occupation. In the case of both, the reclamation of waste was made by the ryots, and they held the land always at a uniform rate of rent. We do not think any distinction can be drawn between the garden lands and the dry lands in the defendants occupation. In the case of both, the reclamation of waste was made by the ryots, and they held the land always at a uniform rate of rent. The absence of any alienation with regard to the dry lands cannot be regarded as a circumstance against them, as it is admitted that the lands are of a poor quality, and would probably therefore not attract purchasers. The question of pasture lands remains to be considered. They have not been brought under cultivation by the defendants. The plaintiff as pattadar is entitled to bring waste lands included in his patta under the plough. It does not appear that the defendants have exercised any right of enjoyment over them which would justify us in holding that they have occupancy rights in them. We are therefore of opinion that the decree for ejectment must be confirmed with regard to the pasture land.....We dismiss the suit with respect to the dry and garden lands." 1919. Nov. 18, 20, 21. De Gruyther K.C. and Kenworthy Brown for the appellants. On the findings of fact recorded by the District Judge the defendants have no right of permanent occupancy in the lands. The jurisdiction of the High Court upon the second appeal was limited by s. 103 of the Code of Civil Procedure, 1908, and did not entitle that Court to overrule the District Judge upon a question of fact Durga Choudrain v. Jawahir Singh Choudhri. (( 1890) L. R. 17 I. A. 122.) The plaintiff was mirasidar of the lands, and held a Government patta for them ; he possessed the kudivaram rights. He was entitled to eject since it was not shown that he or his predecessors in title had created any permanent interest in favour of the tenants. Long occupation at a uniform rent was in these cases no evidence of a permanent right, since here the plaintiffs predecessors were grantees at the settlement. They were "ryots or cultivators" referred to in the Fifth Report (Madras Presidency), p. 61 ; the grantees being Brahmans, the lands were cultivated by ervants. It was not proved as to each defendant that he or his predecessors had had long possession at a uniform rent. They were "ryots or cultivators" referred to in the Fifth Report (Madras Presidency), p. 61 ; the grantees being Brahmans, the lands were cultivated by ervants. It was not proved as to each defendant that he or his predecessors had had long possession at a uniform rent. The wells were made by licence, and it is conceded that upon ejectment the defendants are entitled to compensation. The decisions of the Board in Secretary of State for India v. Luchmeshwar Singh (( 1888) L. R. 16 I. A. 6.) and Seena Pena Reena v. Chockalingam Pillay (( 1904) L. R. 31 I. A. 83.) show that the onus was upon the defendants, and that proof of long occupation at a fixed rent did not satisfy it. That also appears from a series of decisions of the Madras High Court Chidambara Pillai v. Thiruvengadathirengar (( 1887) 7 Madr. L. J. 1.); Rangasami Reddi v. Gnana Sammantha (( 1898) I. L. R. 22 M. 264.); Cheekati Zamindar v. Ranesooru Dhora (( 1899) I. L. R. 23 M. 318.); Seshamma Shettali v. Chikaya Hegade(( 1902) I. L. R. 25 M. 507.); Muna Muhammad Rowther v. Muthu Alagappa Chettiar (( 1918) 34 Madr. L. J. 234.); Ponniah Nadan v. Deivanai Ammal. (( 1918) 36 Madr. L. J. 463.) The High Court purported to follow Veeranan Ambalam v. Peria Kampalam Ambalam (( 1904) 21 Madr. L. J. 845.), but extended the effect of that decision. [Reference was also made to the Fifth Report (Madras Presidency), pp. 178, 489-491, 615, 790, 797, 808.] E. B. Raikes and Palat for the respondents. The view taken by the District Judge, both originally and upon the remand, was erroneous. The High Court based its judgment upon facts already found, and had jurisdiction. The onus was upon the plaintiff to establish his right to eject. But in any case having regard to the facts established the plaintiff was not entitled to succeed merely because he was pattadar. There was no other fact which supported his case. The Fifth Report shows that the mirasidar had the first right to the issue of a patta. The decision in Secretary of State for India v. Luchmeshwar Singh (L. R. 16 I. A. 6.) is distinguishable, as the circumstances in which the tenants in that case came into possession were known. The decision at L. R. 31 I. A. 83 does not affect the question. The decision in Secretary of State for India v. Luchmeshwar Singh (L. R. 16 I. A. 6.) is distinguishable, as the circumstances in which the tenants in that case came into possession were known. The decision at L. R. 31 I. A. 83 does not affect the question. Upon the facts found it was rightly held that the defendants had permanent rights. That contention is not in conflict with the decisions of the High Court referred to ; it is supported by those in Veerana Ambalam v. Peria Kampalam Ambalam (( 1904) 21 Madr. L. J. 845.) and Muna Muhammad Rowther v. Muthu Alagappa Chettiar (( 1918) 34 Madr. L. J. 234.) ; see also Krishnasami Pillai v. Varadoraja Ayyangar. (( 1882) I. L. R. 5 M. 345, 355, 356.) [Reference was also made to Ajzal-un-nisa v. Abdul (( 1919) L. R. 46 I. A. 131.) and Suryanarayan v. Patanna (( 1918) L. R. 45 I. A. 209.) and to the Trichinopoly Manual, p, 178, and the Fifth Report (Madras Presidency), pp. 104-106, 489, 615, 622, 625, 750, 751, 785.] De Gruyther K.C. in reply. The Fifth Report shows that if at the time of the settlement there had been any independent tenant, the settlement would be made with him. The pattas included wet lands, but no right of occupancy in them is suggested. The right of the tenants is only to be compensated for the wells made in the garden lands. Dec. 15. The judgment of their Lordships was delivered by SIR LAWRENCE JENKINS. These consolidated appeals are from three decrees of the High Court at Madras dated February 18, 1917. The decrees had modified three appellate decrees of the District Court of Trichinopoly, which, in turn, had modified three original decrees of the Court of the District Munsif of Kulitalai. The three suits thus came before the High Court in second appeal, so that the Court had no jurisdiction to interfere with any finding of fact by the District Court; its only power to determine issues of fact was that created by s. 103 of the Code of Civil Procedure, 1908. Each of the suits is for the recovery of possession of agricultural land in a ryotwari tract, and has been instituted by the plaintiff as the Government pattadar. The number of the defendants in the several suits is 165, 103, and 30. Each of the suits is for the recovery of possession of agricultural land in a ryotwari tract, and has been instituted by the plaintiff as the Government pattadar. The number of the defendants in the several suits is 165, 103, and 30. They are not, however, in joint possession ; on the contrary, they have separate holdings, and should have been separately sued. The plaintiffs title is conceded, and he alleges that the defendants are tenants under him and that their several tenancies have been determined by notice. The defendants plead in answer to his claim for possession (1.) that they severally have a permanent tenancy or right of occupancy, and (2.) that they are protected from ejectment by the doctrine of estoppel. The land in suit is of three classes—garden, dry and pasture. In the Court of the Munsif it was held that the plaintiffs claim to recover the garden land was barred by the plea of estoppel, but that his claim to the rest must succeed as no right of permanent tenancy was established. From this decision cross-appeals were preferred. At the first hearing of the appeals the District Judge disallowed the plea of estoppel, and also held that the defendants had not established their right to a permanent occupancy. It is important to observe how he dealt with this last aspect of the case "The question for consideration in this case," he said, " is whether the defendants have shown that the plaintiff or his predecessor in title had contracted the right of tenancy (which) should be changed into a right of permanent occupancy." His finding on this was as follows " In these circumstances it is, I think, clear that the defendants have not established any contract on the part of the plaintiff, or his predecessor-in-title, to convey to them a right of permanent occupancy." Ultimately he passed decrees in the plaintiffs favour for possession of all the suit lands. The defendants appealed to the High Court, and the learned judges expressed the view that the mode in which the District Judge had dealt with the question of a permanent tenancy was not satisfactory. The defendants appealed to the High Court, and the learned judges expressed the view that the mode in which the District Judge had dealt with the question of a permanent tenancy was not satisfactory. And, after quoting the proposition as formulated by him, they observe that " The real point for determination before the learned judge was whether, on the admitted and undoubted facts of the cases, and the evidence of both sides, the defendants held the lands in their possession as tenants from year to year or as persons having a right of permanent occupancy." The distinction between the two propositions is manifest. In the result the learned judges asked the District Judge to return revised findings on the following questions "1. Whether the appellants in these appeals are tenants from year to year, or whether they have a permanent right of occupancy in the lands in dispute ? 2. Whether the plaintiff is estopped from denying that the appellants in these appeals have a permanent right of occupancy ? 3. What compensation, if any, the appellants in these appeals are entitled to for effecting improvements on the land by digging wells and ponds ? " It has been contended that the Court acted without jurisdiction. But this proceeds on a misapprehension of what the High Court did. It did not remand under Order xli., r. 23, of the Code of Civil Procedure, but merely framed issues and referred them for trial to the District Court as provided in r. 25, and for this reason. In the opinion of the learned judges of the High Court the District Judge had omitted to determine a question of tact which appeared to them essential to the right decision of the suit on the merits ; he had failed to consider whether, apart from the particular contract to which his attention was exclusively directed, there was evidence on which to hold that from their inception the holdings of the defendants were permanent or in the nature of occupancy rights. It is perhaps to be regretted that the learned judges of the High Court did not give a fuller and clearer explanation of the reasons which influenced them, for the result was that the District Judge failed to grasp the true meaning of the issues framed by the High Court, and again dealt with the question in the same incomplete manner. He treated the long duration of the tenancy and the uniform and unvarying rate of the rent as a circumstance by itself not sufficient " to raise a presumption of an implied contract that the right of tenancy should be changed into a right of permanent occupancy." The District Courts findings were returned to the High Court, and the learned judges pointed out that the District Judge in his order submitting his findings had, notwithstanding the caution given by the High Court, again assumed that the defendants original right was that of tenants from year to year, and that it lay on them to prove an express or implied contract by which the right of tenancy from year to year was changed into a right of permanent occupancy. Instead of a further reference the High Court proceeded to determine this issue and, if and so far as this was an issue of fact—a point on which it is not necessary to express a definite opinion in the circumstances of this case—the Court had power to deal with it under s. 103 of the Civil Procedure Code, 1908. The conclusion at which the High Court arrived was that the defendants had occupancy rights. This finding, however, is attacked on the ground, first, that the burden of proof was wrongly thrown on the plaintiff, and secondly, that in any case the facts did not justify the inference. To determine on whom the burden of proof lay it is necessary to ascertain with precision upon what propositions of fact or of law the parties were at variance, and how matters stood when the cases reached the High Court. The plaintiffs title was conceded, and the notice by which he purported to terminate the defendants tenancy was not disputed. It was also admitted that the defendants held under, if not from, the plaintiff. To resist the plaintiffs claim the defendants set up a permanent tenancy or an occupancy right in themselves. If this was not established then the defendants must fail, and, to adapt the language of s. 101 of the Indian Evidence Act, as the defendants were bound to prove the existence of their permanent tenancy or occupancy right, the burden of proof as to it lay on them. If this was not established then the defendants must fail, and, to adapt the language of s. 101 of the Indian Evidence Act, as the defendants were bound to prove the existence of their permanent tenancy or occupancy right, the burden of proof as to it lay on them. This view as to the incidence of the burden has been repeatedly recognized in the series of Madras decisions cited in argument, and is, in their Lordships opinion, not open to doubt. There are passages in the High Courts final judgment which unquestionably invite the comment that the learned judges misapprehended the proper incidence of the burden of proof. Thus the learned judges say " We hold that the mere fact of the plaintiff being pattadar does not entitle him to any presumption in his favour." This proposition is open to the construction that the burden lay on the plaintiff not only to establish his title, but also to negative the defendants claim to permanency, and if this is what was meant it was wrong. But the sentence that immediately follows shows a truer perception of the position. The learned judges there say " We also hold that even if that fact could be of any use to him, the various circumstances proved, un-rebutted by anything in the plaintiffs favour, necessarily raise a presumption that the defendants have occupancy rights." The controversy had passed the stage at which discussion as to the burden of proof was pertinent; the relevant facts were before the Court, and all that remained for decision was what inference should be drawn from them. In the end the learned judges drew the inference—they speak of it as a presumption—in favour of the defendants occupancy rights, and, as finally expressed, their determination was un-vitiated by any error as to the burden of proof. Nor is their inference contradictory of any finding of fact by the District Court ; on the contrary, it rests on the findings of that Court, and in the shape it took in the High Court it certainly had not been negatived by the District Court. A word of explanation will make this evident. Permanence is not a universal and integral incident of an under-ryots holding ; if claimed, it must be established. This may be done by proving a custom, a contract, or a title, and possibly by other means. A word of explanation will make this evident. Permanence is not a universal and integral incident of an under-ryots holding ; if claimed, it must be established. This may be done by proving a custom, a contract, or a title, and possibly by other means. Custom is out of the question here ; there is no suggestion of it. Contract has been decisively negatived by the finding of the District Court. Title was left untouched, and it was on title that the High Court pronounced in the defendants favour ; for the meaning of their finding is not that there was a subsequent change in the relations of the parties, but that at the inception of those relations the defendants predecessors possessed occupancy rights. Conflict with any finding of the District Court being eliminated, it next has to be seen whether there were materials on which the High Court could come to its conclusion. They are minutely indicated in the judgment under appeal, and, in the absence of all information as to the origin of the defendants holdings, it cannot be said that there is no evidence to support the High Courts finding. It may be that regarded even as a finding of fact—and it has been so treated throughout—it is not conclusive, though, curiously enough, it would have had that character had it been pronounced by the District Judge, and not by two judges of the High Court. But, after due consideration of the evidence brought to their notice, and of all the circumstances, their Lordships see no sufficient reason to interfere with the High Courts conclusion ; nor is it, in their opinion, to be regretted that effect has been given to the very long possession—"immemorial" in the High Courts view—of the defendants and their predecessors. It has been objected by the appellant that much of the evidence that has been used against him is not relevant, as the long possession, the alienations, and the improvements to which it relates have not been traced to the several defendants or their predecessors in title. But the plaintiff, in disregard of the provisions of the Code, has united in the same suit not merely several causes of action, but several actions or suits against separate defendants, with the result that in effect the litigation has been conducted and treated throughout as though the defendants were a community with common interests. But the plaintiff, in disregard of the provisions of the Code, has united in the same suit not merely several causes of action, but several actions or suits against separate defendants, with the result that in effect the litigation has been conducted and treated throughout as though the defendants were a community with common interests. The plaintiff therefore cannot now be heard to object to the use of evidence to which the irregularity of his procedure has given relevance, and to which he apparently took no exception when it was tendered at the trial. The objection might have been formidable had the plaintiff sued the several defendants in separate suits, and their Lordships recognize that in view of the exceptional and irregular character of this litigation this case cannot in this respect be a satisfactory precedent in a properly constituted suit. As it is, however, the objection must fail and the High Courts finding as to the permanence of the defendants rights in the garden and dry lands must stand. Following on this finding the High Court while confirming the decree for possession of the pasture land passed by the lower Courts, ordered that the plaintiffs suits, so far as they sought delivery of possession of the garden and dry lands, be dismissed. The plaintiff alone has appealed from the High Courts decree, and the present appeals are limited to the garden and dry lands. For the reasons already indicated they must fail. Their Lordships therefore will humbly advise His Majesty that the appeals should be dismissed. The appellants must pay the costs of the appeals.