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PETITIONER: VARADA BHAVANARAYANA RAO

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT: 25/03/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1963 AIR 1715            1964 SCR  (2) 501  CITATOR INFO :  RF         1966 SC 681  (25,29)

ACT: Estates   Land-Inam  grants-"Estates"-Whether  Inam   should relate  to  whole  or named village-Burden  of  proof-If  on person  who asserts that it is not  "Estate"-Madras  Estates Land (Reduction of Rent) Act, 1947 (Mad. 30 of 1947), s.  1- Madras  Estates  Land Act, 1908 (Mad. 1 of 1908) s.  3  (2)- Indian Evidence Act, (1 of 1872), ss. 101, 102, 103.

HEADNOTE: The  appellant  held the major portion of  certain  villages covered by 3 inam grants in the District of Vishakapatnam in the  State  of Madras.  The Inam  Commissioner  had  granted fresh  inam  title  deeds in confirmation  of  the  original grants.   The  Special  Officer  appointed  by  the   Madras Government under s. 2 of the Madras Estates Land  (Reduction of  Rent) Act, 1947, decided that the inam lands covered  by the  fresh inams were "Estates’ within s. 3 (2) (d)  of  the Madras  Estates  Land  Act, 1908 and  recommended  fair  and equitable  rates  of  rent for the  raiyati  lands  in  this estate.    Sabsequently  the  Government  of  Madras  by   a notification   in  the  Gazette  fixed  rates  of  rent   in accordance with this recommendation, The appellant moved the High Court under Art. 226 of the constitution for the  issue of  a writ of mandamus directing the State to  forbear  from giving effect to the notification.  The High Court held that the proper remedy of the appellant was by way of a suit  and dismissed the petition. The  appellant  thereupon filed a civil suit and  the  Trial Court  accepted  the contention of the appellant  that  suit land did not constitute an estate as defined in s. 3 (2) (d) of the Madras Estates Land Act, 1908.  On appeal to the High Court  the decision of the Trial Court was reversed and  the appeal was allowed.  The present appeal has been filed on  a certificate granted by the High Court. On behalf of the appellant, it was contended that there  was no  material on the record to show that the  original  grant was of a whole village or of a village by name, to bring the ands  within the definition of "Estate" in s. 3 (2)  (d)  of the

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502 Madras  Estates  Land Act, 1908.  It was  further  contended that  the burden of proving whether the land constituted  an estate  lay  on  the  State and  the  State  had  failed  to discharge this burden.  The respondents’ contention was that the  scheme  of the Explanation (1) to s. 3 (2)  (d)  showed that the legislature intended the court to presume that when a  grant as an inam was expressed to be of a  named  village the  area covered by the grant formed an estate but that  it was open to a party to rebut this presumption. Held  that the suit land does not form a whole inam  village Within the meaning of the main portion of s. 3 (2) (d).   It can  still  be an estate, however, if it  comes  within  the explanation. Varadaraja-Swamivari  Temple v. Krishnappa, 1. L. R.  (1958) Mad. 1023, approved. The  present  grant which was later confirmed by  the  title deed was already of a named village. It  is not correct to say that is soon as it was found  that the inam grant was of a named village a rebuttable  presump- tion will arise that it formed an estate. Janakiramaraju v. Appalaswami, 1. L. R. (1954) Mad. 980  and Narayanaswami Nayada v. Subramaniyam, (1915) I.   L.  R.  39 Mad. 683, disapproved. The legislature has not created any presumption either  way. This being the position the question of the burden of  proof depends  on  ss.  101,  102 and 103  of  the  Evidence  Act. Applying  the  principles contained in  these  sections  the burden  to prove that the suit land is not an estate  is  on the plaintiff and he having failed to discharge this burden, the appeal is dismissed. District Board Tanjore v. Noor Mohammad, A. 1. R. 1953  S.C. 446, distinguished.

JUDGMENT: CIVIL APPELLATE, JURISDICTION,Civil Appeal No. 340 of 1961. Appeal from the judgment and decree dated November 26, 1958, of the Andhra Pradesh  503 High Court at Hyderabad in Appeal Suit No. 1228 of 1953. T. V. R. Tatachari and N V. Ramadas, for the appellant. P.   Rama Reddy and P. D. Xenon, for respondent No. 1. 1963.  March 25.  The judgment of the Court was delivered by DAS GUPTA J.-In the district of Vishakhapatnam in the  State of Madras there is a village known by the name of  Vandrada. The  entire  area of this village is now covered by  5  inam grants, by far the major portion being comprised in the inam held by the appellant, Varada Bhavanarayanarao.  In 1864 the Inam   Commissioner  granted  fresh  inam  title  deeds   in confirmation of the existing inam grants, the total area  of the village was recorded as 768.60 acres.  Out of this 66.12 acres were unassessed poramboke; 690.13 acres of dry and wet lands were included in a title deed which is numbered  1082; 9.25  acres were included in title deeds Nos. 940  and  941; two  other title deeds Nos. 940 and 911 granted by the  Inam Commissioner covered an area of 3.04 acres.  The question in controversy  in the present litigation is whether  the  inam created by the original grant in confirmation of which title deed  No. 1082 was issued by the Inam Commissioner forms  an "estate"  to  which the Madras Estates  Land  (Reduction  of Rent) Act, 1947 (Act XXX or 1947) applies.  This Act will be later referred to in this judgment as "the Reduction of Rent Act".  It is necessary to mention here that s.1 of this  Act

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provides  that it applies to all estates as defined  in  s.3 (2)  of  the Madras Estates Land Act,  1908.   The  relevant portion of s.3(2) of the Madras Estates Land Act runs thus:- 504 .lm15 "(d)  any  inam village of which the grant  has  been  made, confirmed  or recognised 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 certain lands in the village  of  that name, which have already been  granted  on service  or  other  tenure or  been  reserved  for  communal purposes.............. The  Special Officer appointed by the Government  of  Madras under  s.2 of the Rent Reduction Act decided that  the  inam lands  in respect of which title deed 1082 had  been  issued and  which now admittedly are held in inam by the  appellant formed  an "estate".  Accordingly the officer, acting  under the Act recommended fair and equitable rates of rent for the raiyati  lands  in  this  estate.  On  June  27,  1950,  the Government of Madras published in the Gazette a notification fixing  tile rates of rents payable in respect of’ lands  in the  village  in  accordance  with  these   recommendations, Aggrieved  by  this action of the Government  the  appellant moved  the  High  Court  of  Madras  under  Art.226  of  the Constitution  praying for a writ of Mandamus  directing  the State  to  forbear from giving effect to  the  notification. The High Court held that the remedy of the petitioner was by way  of  a  suit  and  dismissed  the  application,  on   an undertaking given by the Government that it would waive  its right  to  the  notice  under s.80  of  the  Code  of  Civil Procedure.   It was after this that the appellant  filed  in the Court of the Subordinate judge, Srikakulam, the suit out of which this appeal has arisen.  505 In  his  plaint  the appellant averred that  for  the  lands comprised  under title deed No. 1082, there was neither  the grant  of  a whole village nor of a named village.   It  was also  stated by the appellant that the lands now covered  by the single title deed of 1082 originally formed the subject- matter  of several separate grants.  The  plaintiff  further averred that out of the lands of the village not included in any  of the earlier grants, further grants were made  subse- quently  which were separately confirmed and separate  title deeds-Title  deeds Nos. 940, 941 and Nos. 179 and 180  -were issued  in respect of them.  It was mainly on the  basis  of these averments that the plaintiff contended that his  lands covered by the title deed No. 1082 were not at all an estate and  prayed for a declaration to this effect.  The State  of Madras was the main defendant in the suit and contested  the plaintiff’s  claim.   In  its written  statement  the  State pleaded that there was in respect of the suit land a  single grant of a named village and that it was not true that  from out   of  any  reserved  lands  further  grants  were   made subsequently.    Accordingly,   it  was   urged   that   the plaintiff’s  contention  that these lands did  not  form  an estate  should be rejected.  Similar pleas were raised  also by  defendants  2 to 31 who were impleaded  as  the  tenants cultivating  some  of the lands covered by  the  title  deed 1082. The Trial Court held that as the original grant is shown  by

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the entries in the Inam Fair Register to have been made to a number of persons and there were deduction for poramboke and for  personal  and service inams, and further  because  even though  the  original  grant may have been  under  a  single transaction the confirmation was not by one title deed,  the suit lands did not constitute an estate as defined in s.   3 (2) (d) of the Madras Estates Land Act. On  appeal by the State of Madras, the High Court of  Madras came to a contrary conclusion. 506 The  High  Court pointed out that the opinion of  the  Trial judge that to constitute an estate the confirmation must  be under  one grant was unsupportable.  In the opinion  of  the High Court the entries in the Inam Fair Register showed that the  grant consisted of a named village and it was the  inam as granted that was confirmed by the Inam Commissioner.  The High  Court  also expressed its view that  "the  whole  Inam Inquiry  proceeded  on  the footing that it  was  the  whole village,  excepting the two minor inams, that was  given  in inam   to   Chatti  Venkatacharlu  etc."  The   High   Court accordingly  allowed the appeal and dismissed the suit  with costs. Against  this decision of the High Court the present  appeal has been filed by the plaintiff on a certificate granted  by the High Court. In  support of the appeal, Mr. Tatachari has contended  that there  were  no  materials on the record to  show  that  the original grant was of a whole of the village or of a village by  name.   His next contention is that even if it  be  held against  his  client  that  the  original  grant  that   was ultimately  confirmed by the title deed 1082 was of a  named village  the  burden  still lay on the  defendants  to  show further  that the portion of the village now covered by  the minor grants (in respect of which title deeds Nos. 940,  941 and  title  deed  Nos. 179 and 180  were  issued  )had  been granted  prior to the date of that original grant.   Learned Counsel   contends  that  the  defendants  have  failed   to discharge this burden and so the Plaintiff’s case that these lands do not form an estate should be accepted. The  several questions of fact that arise in this case  have to  be decided on the meagre evidence furnished by the  Inam Fair  Register  of  Vandrada village.  For,  as  it  usually happens  in  most of such cases neither the  original  grant which was confirmed by  the title deed No. 1082 nor the originals of  the  other grants  which were the basis of the other four  title  deeds are available.  On an examination of the entries in the Inam Fair  Register  it  appears that the inam  grant  which  was conferred  in  1864 by title deed No.  1082  was  originally granted  by  Nabob Mofuz Khan in the year  1739.   The  area covered  by this grant was estimated to be 40 garces in  the year 1797.  But a few years later-in an account of  1816-the area  was calculated as 100 garces.  It is not  possible  to say  on the basis of this statement of area that the  entire area  of the village was included in the original  grant  by the nawab.  Clearly, therefore, the suit land does not  form a whole inam village within the meaning of the main  portion of  cl. ((f) which has been set out above.  It can still  be an  estate however if it comes within the Explanation.   The effect of the Explanation was succinctly put in a full Bench judgment  of the Madras High Court  in  Varadaraja-Swamivari Temple v. Krishnappa (1), thus :               "....................................    Where               the grant in inam was of a named village; what               was  granted would constitute an  estate  even

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             though the grantee did not have the benefit of               the   minor   inams  that   lay   within   the               geographical limits of that village,  provided               it  was  proved that the grant  of  the  minor               inams  preceded in point of time the grant  of               the rest of the village as a named village." In our opinion, the High Court was clearly right in its view that  the  original grant has been shown to be  of  a  named village.   Apart  from  the fact that  the  inam  itself  is described  in  Col.  8  of the  Inam  Register  as  Vandrada Shrotriem  and  Agrahar of Vandrada, we get a  further  fact from  the  entries in Col. 20 that Mr. Scott’s  Register  of 1207  Fasli shows that the village Vandrada  was  originally granted in (1)  I. L. R. (1958) Mad. 1023. 508 Inam  to Chatti Venkatachari and others in A.D.  ‘  1739 for subsistence.   This grant which was later confirmed  by  the title deed No. 1082 was thus clearly of a named village. That  alone is however not sufficient to make it an  estate. It  must further appear that the minor inams  which  covered part  of  the village, viz., Devadayan 9.25  acres  and  the personal inams for 3.04 acres had been granted prior to  the grant of the rest of the village as a named village. There  is nothing on the record, however, to show the  dates of the grants of the minor inams.  It is therefore necessary to  consider the question of burden of proof.  The  decision of  this Court in Dist.  Board, Tanjore v. Noor  Mohd.  (1), has  generally been taken to lay down the law that when  the question  arises  in  any case  before  the  courts  whether certain  lands constitute an "estate" the burden of  proving that they constitute an estate is upon the party who sets up that contention.  On a closer examination however it appears that  this decision cannot be considered to be an  authority for  this proposition.  The judgment of Mr. justice  Mahajan (as  he  then  was)  states "that it  was  conceded  by  Mr. Somayya,  the  learned Counsel for the respondent  that  the burden of proving that certain lands constitute an  ’estate’ is upon the party who sets up the contention." The  judgment proceeded  on  the basis of this concession by  Counsel  and contains  no discussion on the question and consequently  no pronouncement.    The  other  learned  judge,  Mr.   justice Chandrasekhara  Aiyar has also stated "that  the  respondent has  not successfully discharged the onus that rests on  him to show that Kunanjeri was an ’estate’ within the meaning of the Act." His view that such onus did rest on the respondent was also apparently based on the concession made by  Counsel It  will  not be proper therefore to treat the  judgment  of this Court in Dist.  Board Tanjore case (1), (1) A. 1. R. 1953 S. C. 446.  509 as  a decision on the question of but-den of proof  in  such cases. It is now necessary to examine the principle involved in the question.  On behalf of the respondent State, Mr. Ram  Reddy contended that a consideration of the scheme of  legislation in  introducing Explanation (1) to s. 3 (2) (d)  shows  that the  legislature intended the Court to presume that  when  a grant as an inam was expressed to be of a named village  the area covered by the grant formed an estate, but that it  was open  to a party to rebut this presumption by  showing  that the  excluded lands of the village had been granted  by  the grantor of the major inam after the date of the major grant. It  appears that long before this Explanation was  added  to s.3  (2)  (d),  the  Madras  High  Court  (Wallis  C.J.  and

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Srinivasa  Ayyangar  J.)  held in  Narayanaswami  Nayadu  v. Subramanyan (1) that as in all the documents the temple  was described as the owner of the whole village, the burden  was upon  the plaintiff to show that the grant was only  of  the revenue of a portion of the lands in the village and as this burden had not been discharged Venkatapuram Agraharam was an estate  even though there were minor inams in  the  village. This  decision  was given in 1915 and was  followed  in  the Madras  High  Court till 1943 when in Adema  v.  Satyadhyana Thirtha  Swamivaru(2), another Bench held that unless  every bit  of land in the village was included in the  grant,  the grant could not be of the whole village and the land granted could  not  have  formed an estate.   This  later  view  was followed  the same year in Suri Redli v. Agnihotrudu  (1).It was after this that the present Explanation 1 to  s.3    (2) (d) was added by the Madras Estates Land     (Amendment) Act II  of 194-5.  There was a provision by which the  amendment was  to be deemed to have effect as from the date  when  the Madras Estates Land ( Third Amendment ) Act, 1936,  bringing in sub-cl. (d) of cl. 2 of s.3 in its (1) (1915) I.L.R. 39 Mad. 683.  (2) [1943] 2 M.L.J. 289. (3) [1943] 2 M.L.J. 528. 510 present form came into force.  Mr. Ram Reddy argues that the intention of the amending Act 1945 was to restore fully  the view taken in Narayanaswami’s Case (1), and that under  this definition of an inam village as explained by the  amendment a named village would be presumed to be an inam village, and so  an  "estate" notwithstanding the  existence  of  certain minor  inams.  The presumption could however be rebutted  by showing  that these minor inams were created by the  grantor of  the major inam subsequent to the creation of  the  major inam.   The  argument is undoubtedly  attractive.   It  also finds  support  from  the observations of Subba  Rao  J.  In Janakiramaraju  v. Appalaswami (2), where the learned  judge stated that the amendment introduced by the Explanation  was intended  to restore the well settled law disturbed  by  the decision in Ademma’s case (3).  There are other observations in  the judgment in Janakiramaraju’s case (2), which  appear to  support even more clearly Mr. Ram Reddy’s argument  that as  soon as it was found that the inam grant was of a  named village  a rebuttable presumption will arise that it  formed an estate.  On closer examination of the question however we find that it would be reading too much into the  Explanation to  think  that  the legislature wanted  to  create  such  a presumption.   There are a number of reasons which  make  us hestitate  to  accept the view that Such a  presumption  was created.   The  first  of  these is  that  when  adding  the Explanation  in  1945 the legislature did not think  fit  to make any change in s. 23 of the Act, under which it shall be presumed where it became necessary in any suit or proceeding to determine whether an inam village or a separated part  of an inam village was or was not an estate within the  meaning of the Act as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, that such  village was  an estate.  If when adding the Explanation to s. 3  (2) (d)  in  1945  the legislature had intended  to  bring  into existence a (1) (1915) I.L.R. 39 Mad. 683,  (2) I.L.R. (1954) Mad. 980. (3) [1943] 2 M. L J. 289.  511 presumption  as  suggested  by Mr. Ram  Reddy,  nothing  was easier  than  to give effect to such intention  by  omitting from s. 23 the words "as it stood before the commencement of the  Madras Estates Land (Third Amendment) Act, 1936" or  by

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adding express terms that "where the grant was expressed  to be of a named village the presumption will be that it is  an estate until the contrary is shown". Another reason which makes it difficult for us to accept Mr. Reddy’s argument is the actual language used in  Explanation (1).  The last portion of the Explanation clearly  indicates that  the  conclusion that the area is an  "estate"  can  be drawn even where the whole of the village is not included in the grant, only if it appears that the portion not  included had  already  been  gifted and was  therefore  lost  to  the tentire.  The addition of the last clause in the Explanation brings  out the fact that the legislature did not intend  to go  quite as far as the High Court had gone in the  case  of Narayanaswami Nayudu (1). On a consideration of a history of the langiiage used in the Explanation  and  also  the  circunistances  in  which   the Explanation came to be added, we have come to the conclusion that the legislature being we11 aware of the difficulties of proving  whether the minor grants had been granted prior  to or  subsequent to the grant of a named village,  decided  to leave the matter easy as between the contending parties  and created no presumption either way. That  being  the  position, the question  on  which  of  the contending pa-rties the burden of proof would lie has to  be decided  on  the relevant provisions of  the  Evidence  Act. Section  101  of  the Evidence  Act  provides  that  whoever desires any court to give judgment as to any legal right  or liability  dependent  on  the existence of  facts  which  he asserts,  must  prove that those facts exist.   Section  102 provides (1)  (1915) I. L. R. 39 Mad. 683, 512 that  the  burden of proof in a suit or proceeding  lies  on that person who would fail if no evidence at all were  given on  either  side.  Section 103 provides that the  burden  of proof  as  to any particular fact lies on  that  person  who wishes  the Court to believe in its existence, unless it  is provided  by any law that the burden of proof of  that  fact shall lie on any particular person. Applying  these principles, we find that the  plaintiff  who asks  the Court for a declaration that the area  covered  by the  title deed 1082 is not an estate must prove that it  is not  an "’estate." If no evidence were given on either  side the plaintiff would fail.  For, we have found that there  is no presumption in law either that the area in question is an estate  or that it is not an estate.  It follows  from  this that  the plaintiff who is to prove that the suit  lands  do not  form  an  estate must show that the  minor  inams  were granted  subsequent  to the date of the inam  grant  of  the named village The plaintiff has clearly failed to  discharge this burden. We have therefore come to the conclusion, though for reasons different  from what found favour with the High Court,  that the plaintiff’s suit has been rightly dismissed. The  appeal is accordingly dismissed.  No order as to  costs in this Court.                              Appeal dismissed.  513