Judgment.- This Second Appeal is preferred against the Decree and Judgment of the learned Subordinate Judge of Madurai, in A.S. No. 136 of 1955, modifying the Decree and Judgment of the learned District Munsif of Madurai Taluk at Madurai, in O.S. No. 289 of 1953. The dispute in this Second Appeal relates to Item I in suit which was purchased in Court-sale in E.P. No. 50 of 1933 in O.S. No.34 of 1932 on the file of the Sub-Court, Madurai, by one Kandasami Chettiar on 26th June, 1933. The sale was confirmed on 29th July, 1933 and a certificate of sale was issued in favour of Kandasami Chettiar. Kandasami Chettiar took delivery of this property through Court on 4th December, 1933 and was enjoying this property along with two other items with which we are not concerned here, from the date of delivery and leasing out the lands and also paying the kist for the same. He executed a settlement deed on 22nd October, 1935, endowing the properties for a trust for the performance of several religious Kainkaryams. He constituted one Kuttalam Chettiar as the hereditary trustee. In fact Kuttalam Chettiar functioned as a trustee even during the life-time of Kandasami Chettiar, who died in 1939. Kuttalam Chettiar died in 1940. The plaintiff and the third defendant have become the successor trustees of Kuttalam Chettiar. The plaintiff by virtue of his position as trustee leased out the plaint-mentioned Item 1 to the first defendant about 12 years ago along with two other items, with which We are not concerned here, on a rent of 17 kalams of paddy. It was an yearly lease. The first defendant continued to be the lessee. From the year Nandhana he defaulted in the payment of rents. Subsequently the first defendant has started claiming permanent occupancy rights in this ryotwari land. The second defendant is the brother of the first defendant who aided and abetted the claim of thefirst defendant. Therefore, the plaintiff filed the suit, out of which this second appeal arises, against defendants 1 and 2 for recovery of possession of the suit properties with arrears of rent, etc. The learned District Munsif negatived the claim of permanent occupancy rights in this ryotwari land put forward by defendants 1 and 2 and decreed the suit. Therefore, the plaintiff filed the suit, out of which this second appeal arises, against defendants 1 and 2 for recovery of possession of the suit properties with arrears of rent, etc. The learned District Munsif negatived the claim of permanent occupancy rights in this ryotwari land put forward by defendants 1 and 2 and decreed the suit. On appeal, the learned Subordinate Judge upheld the contention of defendants 1 and 2, regarding item 1 and allowed the appeal in respect of the same. Hence this second appeal by the defeated plaintiff. The following extract from Sundararaja Iyengar’s Land Tenures in the Madras Presidency (1921) sets out the incidents of ryotwari tenure: (pages 175-178). “The person with whom Government enters into direct engagement under the ryotwari system is called the ryot. The word ryot is a corruption of the Arabic word, Rayut which literally signifies ‘pasture’ or ‘herd of cattle’ and was introduced into India after the Mahomedan conquest. It was applied to subjects at large, either as being more commonly employed in the pasturing of cattle, or as being themselves cattle or sheep, and the special care of their proprietors or Governors, who, by the same figure of speech, were sometimes designated by the kindred name of Race or shepherd. When a ryot is first put into possession of land, he is furnished with a document called patta which is liable to revision at each annual settlement, called jamabandi. According to Sadasiva Ayyar J., Government is under no statutory obligation to issue any patta at all to a ryotwari proprietor. The patta is only a mere bill issued to the ryot so that all concerned may know the amount of assessment payable and the instalments by which it is payable, and is not, nor does it purport to be, in the nature of a grant or conveyance. It is not evidence of title, but only of possession. * ***** At the time of the introduction of ryotwari system into this Presidency, settlements were entered into with the cultivating proprietor whom government found on the land and treated him as the proprietor thereof. It is not evidence of title, but only of possession. * ***** At the time of the introduction of ryotwari system into this Presidency, settlements were entered into with the cultivating proprietor whom government found on the land and treated him as the proprietor thereof. The ryotwari proprietor being the owner of the soil, it was held in a series of cases that he was entitled to carry on the cultivation of his lands in any manner he chose best, and that any person who claimed a permanent or any other right in derogation of the proprietor’s right must strictly establish it. On the other hand certain other cases took the view that the mere fact that ryotwari settlements were entered into with cultivating proprietors did not necessarily show that other persons claiming a right of occupancy were not on the land, and that unless the ryotwari proprietor showed that he let the tenants into possession as tenants from year to year or otherwise showed his right to eject, he could not eject them. Finally the question came up for decision before the Privy Council in the case of Sethuratnam Ayyar v. Venkatachala Goundan1 . In that case the Privy Council held, agreeing with the first series of cases that in localities where the ryotwari system prevailed, permanence was not a universal and integral incident of an under-ryot’s holding; and that if claimed it must be established which could be done by proving a custom, contract or a title, and possibly by other means.” Their Lordships of the Privy Council have had occasion to deal with the burden of proof in cases where permanent occupancy right is claimed in ryotwari lands. In Lakshmanna V. Venkateswarlu2 , they have observed as follows: “In this connection it may be stated that it is not correct to say, as was boldly argued, that ryotwari pattadar has no proprietorship in the land he holds under the Government. In his Land Systems of British India, Baden-Powell gives the following definition of the ryotwari system: ‘A system of land revenue administration in which there is no middleman or landlord over the individual ryots, who are severally liable for the land revenue assessment on the holding”‘. Again, quoting from the Settlement Manual from Madras, he describes the ryotwari system as follows:- “‘Under the ryotwari system every registered holder of land is recognised as its proprietor. Again, quoting from the Settlement Manual from Madras, he describes the ryotwari system as follows:- “‘Under the ryotwari system every registered holder of land is recognised as its proprietor. He is at liberty to sublet his property or to transfer it by gift, sale or mortgage. He cannot be ejected by Government so long as he pays the fixed assessment, and has the option of (annually) increasing or diminishing his holding or of entirely abandoning it. The ryot under this system is virtually a proprietor under a simple and perfect title, and has all the benefits of a perfect lease without its responsibilities. ‘In this system of land holding ‘It may be assumed that the Pattadar is the owner of the kudiwaram right as opposed to the melvaram right which is vested in the Government’ Veeranan Ambalam v. Annaswami Aiyar3.” The settlement by the Government under the ryotwari system was with the actual cultivator; under Regulation XXV of 1802, it was with the zamindar, who had the right of receiving rent from persons who were in occupations of lands. It is familiar knowledge that pattadars under the ryotwari system let out the land for cultivation to under-ryots. When such under-ryots claim rights of occupancy the burden of proving that they have such rights Would necessarily be on them. It Was in connection with the claims made by such ryots that the Board observed in Seturatnam Ayyar v. Venkatachala Goundan1, that: “Permanence is not a universal and integral incident of an under-ryot’s 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........” Language very similar to the above was used in similar Madras cases in describing the claim of an under-ryot in ryotwari land. In Cheekati Zamindar v. Ranasooru Dora2, Subramania Ayyar, J., referred to a decision of Collins, C.J. and Muttuswami Ayyar, J., in which the position of under-ryot in ryotwari land was thus described: “Admittedly the village in suit is a taraf village of which the temple is the registered proprietor entitled to both the melvaram and the mirasvaram as against the appellant. This being so, the claim of an occupancy right as overriding the proprietor’s right to cultivate his own land is of a special character, and as such, it is one which the party seeking to derogate from the ordinary incidents of property is bound to establish. Ordinarily the mirasdar or proprietor in a taraf village has the right of cultivation also and he is therefore at liberty to arrange for it from time to time either by granting leases or letting it to purakudies for varam or under what is usually called the pannai system by means of labourers who are paid wages in grain” . Subramania Ayyar, J., added: “In other words, the view of the learned Judges was that permanent holdings under ryotwari proprietors being unusual and exceptional, the onus is on the party setting up such a special kind of holding.” In Subramania Chettiar v. Subramanya Mudaliar3, their Lordships of the Privy Council have had to deal with another aspect of burden of proof and have pointed out: “It is well established that those claiming a right of permanant occupancy must prove that it exists by custom, contract, title or possibly by other means. In a suit by a ryotwari pattadar claiming partition of his undivided share in an estate, the defendants contended that they had a right of permanent occupancy as to certain well-irrigated lands and palmyra trees, and that consequently they should be excluded from the partition. Held that the defendants, who proved that they had been in undisturbed possession of some of the lands for a long period at a more or less uniform rent, and that at a comparatively recent date they had made alienations not of such a kind as ordinarily would be brought to the notice: of the pattadar, had not discharged the burden of proof upon them; the fact that some of the defendants had purchased the kudiwaram militated against their claim”. Bearing these principles in mind if we examine the facts of this case, we find that the plaintiff has established his case and that defendants 1 and 2 have signally failed to establish their claim for occupancy rights. The sale certificate Exhibit A-1 shows that what Kandaswami Chettiar purchased in Court auction included the kudiwaram interest also in the land. In fact he has purchased the iruwaram right. The sale certificate Exhibit A-1 shows that what Kandaswami Chettiar purchased in Court auction included the kudiwaram interest also in the land. In fact he has purchased the iruwaram right. Exhibit A-1 further shows that the defendant in O.S. No. 34 of 1932 was in possession of that land. It is the admitted case of defendants 1 and 2 that the plaintiff is entitled to the melwaram right in this item. Therefore, Exhibit A-1 clearly shows that iruwaram was purchased by Kandaswami Chettiar. The patta for the land stands in the name of the plaintiff; vide Exhibit B-1. Then the plaintiff has filed counterfoil receipts Exhibits A-6 to A-16 for showing that this land along with two other lands was leased out and that the plaintiff had the kudiwaram right in all these lands. In fact the learned Subordinate Judge himself has concluded from the self-same Exhibits A-6 and A-12 that in the other two lands the plaintiff has established his kudiwaram rights. No distinction can be made between these two sets of lands and what applies to the one applies necessarily to the other. The Settlement deed Exhibit A-4 finally shows that this land is iruwaram land. This documentary evidence is corroborated by the oral testimony of P.W. 1. The learned District Munsif has accepted his testimony as true. On the other hand, the documentary and oral evidence adduced by the defendants does not establish their claim. The defendants have not shown that they have acquired occupancy right in this ryotwari land by custom or grant or prescription. On the other hand defendants 1 and 2 filed Exhibit B-2 to show that the land originally belonged to one Pathar, that he conveyed it to one Kudumban and that his mother Rakkammal purchased the kudiwaram right under Exhibits B-3 and B-4. In cross-examination the first defendant examined as D.W. 1, admits that he does not know who that Pathar was. He was not able to assert definitely that Exhibit B-2 comprised the suit item 1 also. In fact he admitted that he could not say that any particular item in Exhibit B-2 corresponded to the suit item 1. In cross-examination the first defendant examined as D.W. 1, admits that he does not know who that Pathar was. He was not able to assert definitely that Exhibit B-2 comprised the suit item 1 also. In fact he admitted that he could not say that any particular item in Exhibit B-2 corresponded to the suit item 1. He could not even say what the old survey number for this disputed property was The first defendant finally stated that he could not say how the Pathar got this land and why the survey number of this land was not mentioned in Exhibit B-2. Therefore, it cannot be stated that Exhibit B-2 refers, to the suit item 1. Then the defendants relied on Exhibits B-3 and B-4. D.W. 1 admitted that Exhibit B-4 did not give the survey number of this disputed property. The survey number mentioned in Exhibit B-3 is an interlineation. The first defendant admitted that there is no record to show the enjoyment of this item of property by his mother. That mother is alive and has not been examined. Defendants 1 and 2 have filed some old documents in the name of their mother to establish the kudiwaram right in the disputed item. The first defendant goes on to say that his mother had executed a benami sale deed in favour of his maternal uncle. He attempted to file a release deed executed by that maternal uncle. Inasmuch as the alleged release deed was after suit, it was not admitted in evidence. The various documents relied on by the defendants to establish their kudiwaram right are all anterior to Exhibit A-1 In the absence of proof of possession of the land by the contesting defendants or other predecessor in title subsequent to Exhibit A-1 in their own right they can be deemed to be only ordinary tenants of the pattadar. There was also no reliable oral evidence to corroborate the claim of defendants 1 and 2 that they are entitled to kudiwaram rights in this disputed item. There was also no reliable oral evidence to corroborate the claim of defendants 1 and 2 that they are entitled to kudiwaram rights in this disputed item. The net result of this analysis is that the conclusion of the learned District Munsif that in the face of Exhibit A-1 and in the absence of positive documentary evidence on the side of defendants 1 and 2 to establish their right to kudiwaram in this disputed item, either by custom or grant or prescription, the plaintiff was entitled to get possession of that item 1 is correct. Therefore, the decree and judgment of the learned Subordinate Judge which do not flow from the evidence on record, are set aside and those of the learned District Munsif are restored and this Second Appeal is allowed and in the circumstances without costs. No leave. P.R.N. ----- Appeal allowed: Leave refused.