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PETITIONER: GONDUMOGULA TATAYYA

       Vs.

RESPONDENT: PENUMATCHA ANANDA VIJAYA VENKATARAMA TIMMA JAGAPATHIRAJU(AND

DATE OF JUDGMENT: 20/02/1962

BENCH: DAS, S.K. BENCH: DAS, S.K. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1967 AIR  647            1962 SCR  (3) 324

ACT: Inam  Lands-Leases-Right  of occupancy  Minor  inams-Whether estates-Test-Madras  Estates Land Act, 1908 (Mad.1 of  1908) as amended, s. 3(2) (d) and Explanation (1).

HEADNOTE: The  respondents were holders of inams in a  village  called Goteru,  one of the Mokhasa villages which were included  in the  assets of the Zamindari at ’the time of  the  permanent settlement   in  1802.   The  inams  themselves  were   pre- settlement inams and were riot included in the assets of the Zamindari.   The  respondents had leased out  seine  of  the lands comprised in their inams to the appellant for a  fixed period, and in the suits instituted against the latter after the  expiry  of the period of the leases for  ejecting  them from the Holdings in their possessions, they pleaded,  inter alia,  that they had got occupancy rights in the suit  lands inasmuch  as  the  inams were part of an  estate  and  that, therefore,  they  were  not  liable  to  be  ejected.   They contended  that  by  reason of the  amendments  made  in  s. 3(2)(d)  of the Madras Estates Land Act, 1908. in  1936  and 1945,  these minor inams being within the village of  Goteru were estates under s. 3(2)(d), read with Explanation (1)  of the  Act.   It  wits not disputed that  Goteru  village  was included  in the Mokhasa sanad of 1802 and that the  Mokhasa grant was an estate. Held,  that  the minor inams in the present  case  were  not grants  of  whole villages and were not,  therefore  estates within the meaning of s. 3(2)(d) of the Madras Estates Land, 1908. The crucial test to find out whether a grant amounted to  an estate as defined under s. 3(2)(d) of the Act was whether at the time of the grant the subject matter was a whole village or  only a part of it.  If it was only a part of a  village, then  the  amending Act made no difference and such  a  part would not be an estate within the meaning of the term ;  but if the grant was of the whole village and a named one,  then it would be an estate. District  Board,  Tanjore  v. M. K.  Noor  Mohamed  Rowther, A.I.R. 1953 S.C. 446 and Mantravadi Bhavanarayana v.  Mervgu Venkatadu, I.L.R. [1954) Mad. 116, relied on and applied.

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325

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : C. As. Nos. 631 to  645  of 1960. Appeals by special leave from the judgment and,decree  dated April  20, 1954, of the Madras High Court in Second  Appeals Nos. 1228 to 1242 of 1949. R.   Mahalingier and Ganpat Rai, for the appellants. A.   V.  Viswanatha Sastri and T. V. R. Tatachari,  for  the respondents. 1962.  February 20.  The Judgment of the Court was delivered by S.K.  DAS,  J.-These are fifteen appeals by  special  leave. They have been heard together as they arise common  question of law and fact and this judgment will govern them all. These  appeals arise out of fifteen suits filed  by  certain inamdars (respondents herein) of a village called Goteru for ejecting the tenants, who are the appellants before us, from various holdings in their possession after the expiry of the period  of  their  leases and for other  reliefs,  such  as, arrears  of  rent and damages.  The lands  lie  in  ’village Goteru,  one  of  the  villages  in  the  Nuzvid  zamindari. Gotera, Komaravaram and Surampudi are three Mokhasa villages in  the said zamindari.  It was admitted that  the  Mokhasas were included in the assets of the zamindari at the time  of the permanent settlement in 1802.  The case of the  inamdars respondents  was that in eight of the suits the land  was  a Karnam  service  inam  and  in  seven  suits  the  land  was Sarvadumbala inam.  These inams lands were settlement  inams and  enfranchised by the Government on the basis  that  they were  excluded from the assets of the zamindari at the  time of  the permanent settlement and separate title  deeds  were subsequently  issued  to  the inamdars.   According  to  the inamdars these inam lands were not "estates" 326 within  the meaning of s. 3 (2) of the Madras Estates  Lands Act,  1908  (Madras Act I of 1908), and  the  inamdars  were entitled  to  both  Melvaram and  Kudivaram  therein  ;  the respondents  leased out these lands to the appellants for  a fixed period under an express contract with the  appellants, who  were  the lessees concerned, that they would  quit  and deliver  possession at the end of their lease  periods;  the appellants, however, did Dot vacate the lands, but continued to be in possession.  Twelve acres and 52 cents of the  suit lands  were  Karnam service inam and the  rest  Sarvadumbala inam. The  appellants  contended inter alia that  the  suit  lands formed  part  of  the Mokhasa of  village  Goteru  and  were included  in  the  assets of the zamindari at  the  time  of permanent settlement. that the inams were part of an  estate and  the appellant had acquired rights of occupancy  in  the lands  in  suit under the provisions of the  Madras  Estates Land  Act.  They also raised certain other pleas with  which we  are  not  now  concerned.   The  main  defence  of   the appellants was that they had got permanent occupancy  rights in the suit lands and therefore, they were not liable to  be ejected  and the Civil Court had no jurisdiction to try  the suits. The  learned District Munsif of Tailuku who tried the  suits in the first instance dealt with them in three batches.   He held  in three separate judgments that the suit  lands  were pre-settlement  minor inams, that they were not included  in

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the  assets  of the zamindari at the time of  the  permanent settlement  and  that  they were not  "estates"  within  the meaning  of the provisions of the Madras Estates  Land  Act. The  learned  Munsif also’ held that as there  was  a  clear undertaking to vacate the lands at the expiry of the  period of  the  leases, no notice to quit was  necessary.   In  the result  he  decreed  the  suits.   The  tenants.  appellants herein, then preferred fifteen appeals against the judgments and                             327 decrees  of  the learned Munsif.  These appeals  were  heard together  by the learned Subordinate Judge of Eluru.   By  a common  judgment  delivered on March 29, 1948,  the  learned Subordinate Judge agreed with the learned Munsif in  respect of all the findings and dismissed the appeals.  Then,  there were  second  appeals  to the High Court  of  Judicature  at Madras.  In these second appeals only two points were  urged on  behalf of the appellants.  The first point was that  the finding  of  the  courts  below that  the  suit  lands  were excluded  from the assets of the zamindari was  vitiated  by reason  of the burden of proof being wrongly placed  on  the appellants.  The, second point was that the inamdars  having concerned in the plaints that the tenants were holding  over after  the  expiry of their leases, the  inamdars  were  not entitled  to recover possession without issuing  notices  to quit as required by law.. With regard to the first point  of the  High Court pointed out that though it was  settled  law that the burden was upon the landlord to make out his  right to  evict a tenant from the holding, sarvadumbala  inams  or inams granted for public services of a pre-settlement period were ordinarily excluded from the assets the of zamindari at the time of the permanent settlement except in some specific cases,  where such lands were as ail exception  included  in the  assets of the zamindari, the exceptions being found  in the four western Palayams of the zamindaries of Venkatagiri, Karvetnagar, Kalahasti, and Sydapur and the Mokhasa in Masu- In patam district.  Therefore, with regard to pre-settlement Sarvadambala  inams or public service inams the  person  who alleged  that they were included in assets of the  zamindari bad  to  prove that they were so included.  The  High  Court then  observed  that  the courts below did  not  base  their judgments on onus of proof, but came to their conclusions on a  consideration  of  the  evidence given  in  the  suits  ; therefore where the entire evidence was gone into, 328 the  question of burden of proof was immaterial.   The  High Court pointed out that the question whether the predecessors of  the respondents herein were granted both the  varams  or Melvaram  only was not raised before it and the  contentions of  the  parties in the High Court centered round  the  only question  whether the suit lands were  pre-settlement  inams excluded  from the assets of the zamindari or  whether  they were  included in those assets.  The High Court pointed  out that this was really a question of fact and in second appeal the  High Court could not interfere with a finding  of  fact unless there were permissible grounds for such interference. The  High  Court held that there were  no  such  permissible grounds.   However,  the High Court referred  again  to  the documentary  evidence  given in the case, namely,  Ex.  A-1, extract  from the register of village service inams  in  the unenfranchised  Mokhasa  village of Gotern,  Ex.   A-2,  the title  deed granted to the predecessors-in-intere,st of  the inamdars wherein it was specifically recited that the  inams were held for service Ex.  A-5, a settlement dated  December 13,  1942, Ex.  A-7, a register of service inams  of  Goteru

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dated  De-,ember  13,  1949, Ex.  A-6, public  copy  of  the village  account  of Goteru, Ex. B-1, register of  inams  of village  Goteru prepared in 1859,Ex.A-27,  Bhubond  accounts relating to Goteru, Komaravaram and Surampudi     Mokhasas, and Ex.  A-28 Zamabandi Pysala Chitta, etc., and came to the conclusion  that the inams in question, both Karnam  service inams and the Sarvadumbala inams, were per-settlement  inams and  the  documents  showed that they were  not  taken  into consideration  in determining the assets of  the  zamindari. On the second question of notice, the High Court came to the conclusion  that  the  appellants herein  were  not  tenants holding  over  but  were  persons who  continued  to  be  in possession  without  the consent of the inamdars  after  the termination                             329 of  the  tenancy;  that being the position,  no  notice  was necessary and the suits for eviction were maintainable. In the appeals before us learned Advocate for the appellants has not canvassed the question of notice.  He has  canvassed two  points  only: firstly, he has argued  somewhat  faintly that the finding of the courts below that the service  inams were pre-settlement inams and were excluded from the  assets of the zamindari was not a correct finding secondly, he  has argued that by reason of the amendments made in s. 3 (2) (d) of the Madras Estates Land Act in 1936 and 1945, these minor inams  constituted  an  estate within  the  meaning  of  the aforesaid  provisions  and under s. 6 of the said  Act,  the appellants  had acquired a permanent right of  occupancy  in their  holdings;  therefore,  they were  not  liable  to  be ejected and the Civil Court had no jurisdiction to deal with the suits. As  to the first point urged before us, it is sufficient  to state  that it relates to a question of fact on which  there is  a  concurrent  finding  by  the  courts  below  and  the appellants  have not been able to satisfy us that there  are any  special  reasons,  such  a manifest  error  of  law  in arriving  at  the finding, or a disregard  of  the  judicial process  or of principles of fair hiaring etc., which  would justify  us in going behind such it concurrent  finding.  We must,  therefore, proceed on the footing that the  inams  in question  were  pre-settlement inams. eight of  them  Karnam service inams and seven others Sarvadum. bala inams. This  brings  us to the second point urged before  us.  That point  does  not appear to have been agitated  in  the  High Court.   But  as  it relates to the  interpretation  of  ’s. 3(2)(d), and Explanation(]) appended thereto, of the  Madras Estates  Land Act, we have allowed learned Advocate for  the apellants to argue the point before us.  Section 3(2)(d) and 330 Explanation (1) appended thereto, is in these terms:               "3.  In this Act, unless there is  some  thing               repugnant in the subject or context-               (2)   "Estate" means-                       .............................               (d)   any inam village of which the grant  has               been  made,  confirmed or  recognized  by  the               Government,  notwithstanding that  subsequent.               to the grant, the village has been partitioned               among the grantees or the successors in  title               of the grantee or grantees.               Explanation  (1) Where a grant as an  inam  is               expressed  to be of a named village, the  area               which  forms the subject-matter of  the  grant               shall    be   deemed   to   be    an    estate               notwithstanding   that  it  did  not   include

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             certain  lands  in the village  of  that  name               which have already been granted on service  or               other  tenure  or been reserved  for  communal               purposes.. It is worthy of note here that when the Madras Estates  Land Act was enacted for the first time in 1908 s. 3(2)(d) was as follows:               "Any  village of which the land revenue  alone               has  been  granted  in inam to  a  person  not               owning  the kudivaram thereof,  provided  that               the   grant  has  been  made,   confirmed   or               recognized  by the British Government  or  any               separated part of such village." Owing  to a variety of reasons which it is not necessary  to state  here, there was an amendment by which cl: (d)  as  it originally stood was removed                             331 and  a  fresh clause substituted by s. 2 (1) of  the  Madras Estates  Land (Third Amendment) Act, 1936 (Madras Act  XVIII of 1936).  The old Explanations (1) and (2) were  renumbered as   Explanations  (2)  and  (3)  respectively  and  a   new Explanation  was inserted as Explanation (1) by s.  2(1)  of the Madras Estates Land (Amendment) Act, 1945 (Madras Act II of  1945).  The reasons why the amendments became  necessary have been explained in the Full Beach decision of the Madras High   Court   in   Mantravadi   Bhavanareyana   v.   Merugu Venkatadu(1).  In Narayanaswami Nayudu v. Subramanyam(2)  it Was observed by the Madras High Court that the existence  of service  inam was, very common in villages and  that.  where there  was a subsequent grant of the village, to  hold  that such  grant  was not an estate as defined in s.  3(2)(d)  by reason  of the existence of minor inams would result in  the exclusion  of agraharams, shrotriyams and  mokhasa  villages from  the operation of the Act and that could not have  been the  intention  of  the Legisla.  ture.   In  that  decision Srinivasa Ayyangar J., observed:               "The  definition in sub-section 3, clause  (d)               was  obviously  intended to exclude  from  the               definition of ’Estate’what are known as  minor               inams, namely, particular extents of land in a               particular  village  as  contrasted  with  the               grant of the whole village by its  boundaries.               The latter ire known as ’whole inam villages’.               The  existence of ’minor inams’ in whole  inam               villages  is  very common and  if  these  inam               villages do not come within the definition  of               ’Estate’ almost all the agrabaram,  shrotriyam               and  mokhasa villaues will be excluded.   This               certainly  cannot have been the  intention  of               the Legislature."               (1) I.  L. R. [1954] Madras II6  (2) (1915) 1.               L. R. 39 Madras 683. 332 This  interpretation  of  s. 3(2)(d)  was  accepted  without question until the decision in Ademma v. Satyadhyana Thirtha Swamivaru(1)  where for the first time a different note  was struck.It was held therein that where portions of the estate had  previously  been granted as minor inams,  a  subsequent grant of the rest of the village was not of an estate as  it was not of the whole  village. The    Legislature thereupon intervened and enacted Explanation 1)  with  the  object  of restoring the view of the law which had been hold before the decision in    Ademma  v.  Satyadhyana Thirtha  The  crucial test to find out whether the subject matter of i grant falls within  the definition of an estate under s. 3(2)(d) of  the

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Act  is whether at the time of the grant  the  subjectmatter was a whole village or only a part of a village.  If at, the time of the grant it was only a part of a village, then  the amending  Act  makes no difference to this and such  a  part would not be an estate within the meaning of the term.   But if the grant was of the whole .village and a named one, then it would be, an estate.  Learned Advocate for the appellants has  referred us to the Mokhasa sanad of December  8,  1802. That  sanad gives a list% of villages which Goteru  is  one. The argument of learned Advocate for the appellants is  that the  inam lands being within village Goteru, they  also  are "estates" within the meaning of s. 3(2)(d) read with  Expla- nation (1).’It, appears to us that this argument is  clearly erroneous, There is no doubt that the Mokhasa     grant   is an  estate within the meaning of the s. 3 (2) of the  Madras Estates Land Act, and that is riot,  disputed ,  before  us. That does not however mean that the mirror inams would  also constitute an estate within the meaning of s. 3 (2) (d).  As wits  pointer  out  in Mantravadi  Bhavanrayanu  v.  Merughu Venkatadu (2) (1) [1943] 2 M. L. J. 289. (2) I. L.  R . [1954] Madras 116. 333 the  crucial  test is whether at the time of the  grant  the subject-matter  was  a  whole  village or  only  part  of  a village.  In District Board, Tanjore v. M. K. Noor  Mohammad Rowther  (1) this Court observed that "Any inam village"  in s.  3(2)(d)  meant a whole village granted in inam  and  not anything less than a village however big a part it might  be of  that  village.   In other Words the  grant  must  either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not compromise the whole of the  village area, and the latter case in order to come within the  scope of  the  definition it must fulfil the conditions;  (a)  the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name  and not  a grant of a defined specific area only; and  (b)  that the  area excluded had already been granted for  service  or other tenure; or (c) that it had been reserved for  communal purposes.   The  Minor inams under  consideration  in  these suits were pre-settlement inams and the finding which cannot now be challenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement  in 1802, though the Mokhasas- were not so excluded.  That being the  position,  the  minor inams were not  grants  of  whole villages  and  were  not estates within the  meaning  of  s. 3(2)(d)  of  the Madras Estates Land  Act.   Therefore,  the appellants cannot claim the benefit of s. 6 of the said Act. Learned  Advocate  for the appellants also addressed  us  at some  length on the, beneficent nature of the provisions  of the   Madras  Estates  Land  Act  and  submitted  that   the appellants herein should not be deprived of the benefits  of that  Act.   But the appellants must satisfy us  first  that they come within the protection or benefits of the Act.   If the lands which they held were not an "estate" (1)  A. I. R. [1953] S C. 446. 334 within  the  meaning,  of  the Act, then  there  can  be  no question  of  giving  them the benefit  of  the  Act.In  our opinion, there is no substance in the second  point urged on behalf of the appellants. In the result the appeals fail and are dismissed with  cost; one hearing fee. Appeals dismissed.

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