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PETITIONER: BUDDU SATYANARAYANA AND OTHERS

       Vs.

RESPONDENT: KONDURU VENKATAPAYYA AND OTHERS.

DATE OF JUDGMENT: 26/02/1953

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND

CITATION:  1953 AIR  195            1953 SCR 1001  CITATOR INFO :  R          1965 SC 516  (10,12)

ACT: Inam  grant  Presumption of lost grant When  arises  Whether grant  is  of melwaram only or land itself  Construction  of grant-Suit for ejectment Rights of archakas.

HEADNOTE: Though  a presumption of an origin in some lawful title  may in  certain  circumstances  be made  to  support  possessory rights  long  and quietly enjoyed where no actual  proof  of title is forthcoming, that presumption cannot be made  where there  is  sufficient evidence and convincing proof  of  the nature of the grant and of the persons to whom it was made. In the case of an inam grant, the mere fact that the amount shown  in the In am Register as the assessment was the  same as the amount shown in the Inam Statement under the  heading "income  from the inam" does not lead to an  inference  that the  grant  comprised only the melvaram rights and  not  the land itself. Though  in a proceeding for framing a scheme relating  to  a temple  it  may  be permissible to  take  into  account  the claims, moral though not legal, of the archakas and to  make some    provision   to   protect   their   interest,    such considerations  are out of place in a suit for ejectment  of the archakas on proof of title, especially when they set  up an adverse title and deny the title of the temple. [On the facts their Lordships held (i) that there was  clear evidence  that  the inam grant in question was made  by  the grantor in favour of the temple and that in the face of this definite  evidence  as  to  the  nature  of  the  grant   no presumption  of  a lost grant can be made in favour  of  the archakas  of the temple; and (ii) that the grant was of  the land itself and not of melvaram rights only.]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 121 of 1951. Appeal  from  the Judgment and Decree dated  15th  December, 1948,  of the High Court of Judicature at Madras (Subba  Rao and  Pancha,Pakesa  Ayyar  JJ.) in Appeal No.  474  of  1945

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arising  out of the Judgment and Decree dated 3 1  st  July, 1945,,  of the Court of the Subordinate Judge of  Tenali  in Original Suit No, 24 of 1944. 130 1002 M.   C. Setalvad, Attorney-General for India, (N. Subrahmanyam and K. R. Chowdhury, with him) for the appellants.       K.  S. Krishnaswamy   Aiyangar (M.  Seshachalapathi, with him)  for the respondents. 1953.  February 26.  The Judgment of the Court was delivered by DAS  J.-This  appeal arises out of a suit  for  recovery  of possession  of certain immovable properties measuring  about 93 acres and 33 cents which are more fully and  particularly set  out  and described in Schedule A to the  plaint.   That suit was instituted by Konduru Venkatapayya, respondent  No. 1, in his capacity as the Executive Officer appointed by the Government  on  the  15th  July, 1942,  in  respect  of  Sri Somasekharaswami Temple at Kotipalle, hamlet of Donepudi,  a temple  notified  on  the  26th  October,  1939,  under  the provisions  of  Chapter VIA of the  Madras  Hindu  Religious Endowments Act (Act 11 of 1927).  The suit was instituted in forma  pauperis.  The claim for ejectment of the  defendants was  founded on the allegation that the properties  belonged to the temple, having been given to it by an Inam grant made in  1770 A.D. by Janganna Rao, the then Zamindar of  Rachur, that  the  defendants I to 16 and  their  predecessors  were Archakas rendering Nitya Naivedya Deeparadhana services  and as  such  were in possession of the properties  for  and  on behalf  of the temple and that defendants 17 to 43 were  the lessees  under the Archakas and that the defendants I to  16 were wrongfully claiming the properties as their own and the other defendants claimed to be in possession of portions  of the  properties as their lessees.  The plaintiff  instituted this  suit  after  having given  registered  notice  to  the defendants to make over possession of the suit properties to the plaintiff as the Executive Officer of the temple but the defendants were still continuing in such possession in spite of  such  notice.  The defendants filed  written  statements raising various contentions 1003 and  issues to which it is not necessary now to refer.   The learned  Subordinate  Judge by his judgment dated  the  31st July,  1945,  decreed  the plaintiff’s suit.   Some  of  the defendants  preferred  an appeal to the High Court  but  the High  Court dismissed the same.  Those  defendants  obtained leave  of the High Court to appeal to the Federal Court  and that appeal has now come up for hearing before us. The  only two points which were raised before us, as  before the  High Court, are (1) whether the Inam grant was made  in favour of the temple or whether the grant was made in favour of the Archakas burdened with the duties of service, and (2) what  right did the grant confer on the  grantee-whether  it was  a  grant  of the land itself or only  of  the  melvaram interest in the properties. Re l.---It is urged by the learned Attorney-General that  as the   defendants  and  their  predecessors  have   been   in possession of the properties from ancient times it should be presumed  that  their possession originated in  some  lawful title conferred on them.  In short, the contention,  founded on  several judicial decisions, is that the principle  of  a lost  grant should be applied in this case in favour of  the Archakas  who  have  been in quiet  possession  for  over  a century and a half.  There is no doubt, on the  authorities, that a presumption of an origin in some lawful title may  in

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certain  circumstances be made to support possessory  rights long  and quietly enjoyed where no actual proof of title  is forthcoming  but  it is equally well established  that  that presumption  cannot  be  made  where  there  is   sufficient evidence and convincing proof of the nature of the grant and the  persons  to  whom it was made.  It  is  true  that  the original  grant  is  not  forthcoming  but  turning  to  the evidence  we  find two documents which appear to  us  to  be decisive on the question of title.  The first one is Exhibit P/3, a copy of the relevant entries in the Inam Register  of 1860.  This Inam Register was prepared after enquiries  made by the Inam Deputy Collector and the statements furnished at that time by the then Archakas were taken into consideration for 1004 preparing the register.  The copy of the statement filed  by the  then  Archakas  before the Inam  Deputy  Collector  was exhibited in this case as Exhibit D/3.  In the Inam Register (Ex.   P/3)  under  the several columns  grouped  under  the general heading " Class extent and value of Inam " this Inam is classified in column 2 as Devadayam.  In column 3 are set out  the  survey  numbers  together  with  the  word’   Dry’ indicating  the  nature  of the land  comprised  within  the survey  numbers.   The areas are set out in  column  5.  The heading  of column 7 is " where no survey has been made  and no assessment fixed by Government, the cess paid by the ryot to  the  Inamdar,  or  the  average  assessment  of  similar Government  land  should be entered in column (7)  ".  Under this   heading  are  set  out  the  amounts  of   respective assessments  against the three survey numbers totalling  Rs. 198139.  We then pass on the next group of columns under the general  heading  "  Description, tenure  and  documents  in support  of the Inam ". Under column 8 ’description of  Inam ’is  entered the remark " For the support of a Pagoda.   Now kept  up  ". The entry in column 9 shows that the  Inam  was free  of  tax, i.e., sarvadumbala.  Under column  10  headed "Hereditary, unconditional for life only or for two or  more lives " is mentioned ’ Permanent ’. The name of the  grantor as  stated  in column 1 1 is Janganna Rao and  the  year  of grant  is fasli 1179, A.D. 1770.  In column 13 the  name  of the temple is set out as the original grantee.  The name  of the  temple and the location of the temple are also set  out under  columns 16 and 17.  Turning now to the statement  Ex. D/3  caused  to be written and filed by  the  then  Archakas during    the   Inam   Inquiry   held   in   1859-60    Sree Somasekharaswami  Varu is given as the name of  the  Inamdar and the present enjoyer.  The name of the temple is also set out under columns 3,5,6 and 12.  Under the heading "  Income derived from the Inam whether it is sarvadumbala or jodi. lf jodi the amount" in column 13 is stated " sarvadumbala  Inam Cist  according to the rate prevailing in  the  neighbouring fields Rs. 26631." This statement (Ex.  D/3) bears 1005 the  signature of the Karnams and the witnesses. it will  be noticed that neither in the Inam Register Ex. P/3 nor in the statement  Ex.  D/3 is there any mention of the Archakas  as the grantee or for the matter of that, having any the  least -interest,  personal or otherwise, in the subject-matter  of the  Inam  grant.  The two exhibits quite  clearly  indicate that the Inam grant was made in favour of the temple by  the gurant or and that in the face of this definite evidence and proof  of the nature of the grant, no presumption of a  lost grant can be made in favour of the Archakas.  We, therefore, in  agreement with the High Court, hold that the  deity  was the grantee and the first question raised before us must  be

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answered against the appellants. Re  2.-The  learned  Attorney-General  next  contends  that, assuming  that  the  Inam grant was made in  favour  of  the temple,  it was only a grant of melvaram interest  and  that the  Archakas  who  have  the  kudivaram  rights  cannot  be ejected.   He relies strongly on an unreported  judgment  of the  Madras High Court in Appeal No. 213 of 1942 (The  Board of Commissioners for the Hindu Religious Endowments,  Madras v.  Parasaram Veeraraghavacharyulu and others) where it  was held:-- "The records of the Inam settlement really contain only  one clear  indication  as to the precise extent of  this  grant. The statement at the Inam Inquiry, Exhibit V, upon which the decision  of  the  Inam Commissioner  was  presumably  based contains  a  column headed " Income realised from  the  Inam sarvadumbala " and in that column we find the entry "Rs.  14 sarvadumbala".   On its face this entry seems to  show  that the income of the Inam was Rs. 14 free from all charges.  We find, however, from the Inam Register, Exhibit IV, that  the assessment of the Inam on the basis of the enjoyment of  16- 97  acres is also Rs. 14.  This seems to indicate  that  the extent of the Inam was the amount of the assessment. *             *            *             *                * It  seems,  therefore, that the decision must  rest  on  the recital in Exhibit V that the income of the Inam 1006 consists  of Rs. 14, read along with the recital in  Exhibit TV that the assessment on the land also comes to Rs. 14.  On these  materials  we  confirm the findings  of  the  learned District Judge, although we do not accept his reasoning, and hold that the grant is a grant of melvaram only." The  facts  of that case appear to us to be  different  from those in the present case.  The Archakas in. that case  were found  to  have the kudivaram rights from  before  the  Inam grant was made.  In the copies of the Inam Register and Inam Statement filed in that case the Archakas were shown as  the grantees and the present enjoyers of the Inam grant and  the amount  shown  under  the heading in column 2  of  the  Inam register as the assessment was the same as the amount  shown under  column  3  of the Inam Statement  under  the  heading "Income  derived  from  Inam".  In the case  before  us  the Archakas  are nowhere mentioned in either Exhibit P/3 or  in Exhibit D/3, there is no evidence that they had any title to kudivaram rights and finally the amount of assessment  shown under  column  7 of the Inam register, Exhibit P/3,  is  Rs. 198139, whereas the amount shown as income derived from  the Inam  as shown in column 13 of the Inam  Statement,  Exhibit D/3,  is Rs. 26631.  Apart from these points of  distinction the  decision  relied  on by  the  learned  Attorney-General appears  to us to be of doubtful authority.  As will  appear from the passages quoted above, the decision rested  mainly, if  not entirely, on the fact that the amount of  assessment and  the amount of income were the same and  the  conclusion was drawn that the Inam grant comprised only of the  revenue assessment,  i.e.,  of melvaram rights.  We  are  unable  to follow  the reasoning.  Whether the Inam comprised the  land itself,  that is to say, both melvaram and kudivaram  rights or  only the melvaram rights, the entries had to be made  in the  Inam Register in the same form and even in the case  of the grant of the land itself comprising both the rights  the amount of assessment had to be set out under column 7 of the Inam Register for it is not 1007 suggested  that  a different form had to be used  where  the grant  comprised  both the rights.  It  follows,  therefore,

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that  no  inference  that the  Inam  -grant  comprised  only melvaram  rights  can be inferred from the fact  that  under column  7  only the amount of assessment is  set  out,  and, therefore, the reasoning on which the decision relied on  by the learned Attorney-General was founded cannot be supported as  correct.  Indeed, that decision has been dissented  from by  another Bench of the Madras High Court  in  Yelamanchili Venkatadri  & another v. Vedantam Seshacharyulu  and  others (1).   In  the  present  case the High  Court  was,  in  our opinion,  clearly  right in preferring  the  last  mentioned decision to the unreported decision mentioned above.  Having regard to the different entries under the different  columns in  Exhibit P/3 and Exhibit D/3 there is no escape from  the position  that  this  Inam grant in  favour  of  the  temple comprised both the interests in the land. An argument was sought to be raised by the learned Attorney- General that the grantor Janganna Rao was only the Collector of the revenue and as such could not grant more than what he had  got.  Reference was made to the Kistna District  Manual by Gordon Mackenzie but it appeared that the person  therein mentioned was not the same grantor as we are concerned  with in  this  case  and the point was not  pursued  and  nothing further need be said about it. Finally,  the  learned Attorney-General submits  that  these Archakas   who  were  rendering  services  faithfully   from generation  to generation from ancient times should not,  in equity,  be  ejected  from the entire lands  and  that  they should  be allowed to remain in possession of the lands  and be  permitted to appropriate to themselves the  expenses  of the  services and a reasonable remuneration and the rest  of the  income  should  be  made over  to  the  temple  as  its property.  Reference was made to two unreported decisions of the Madras High Court in Appeal No. 218 of 1946 (1)  A.I.R. 1948 Mad. 72, 1008 Dandibhotla  Kutumba Sastrulu v.  Kontharapu  Venkatalingam, and in Appeal No. 709 of 1944, Buddu Satyanarayana v. Dasari Butchayya,   Executive   Officer  of  the  Temple   of   Sri Malleswaraswami Varu, China Pulivaram.  In a proceeding  for the  framing  of  a scheme relating to a temple  it  may  be permissible  to take into account the claims, moral  if  not legal,  of  the  Archakas and to  make  some  provision  for protecting their rights, but those considerations appear  to us  to be entirely out of place in a suit for  ejectment  on proof  of  title.  If the two decisions lay down, as  it  is contended  they  do, that the principles which  may  have  a bearing  on  a  proceeding for framing of a  scheme  or  for enforcing the scheme that is framed may be applied to a case of  the kind we have now before us it will be difficult  for us  to  uphold  them either on authority  or  on  principle. Further  what  is  the conduct of  the  Archakas  defendants appearing  on  the record of this case ? Although  they  are Archakas they actually asserted an adverse right in the face of the honest admission of their predecessors in title, made in the Inam statement Exhibit D-3.  Such conduct cannot  but be  regarded as disentitling them from any claim founded  on equity.   The explanation put forward for the first time  in paragraph 7 of their present statement of case filed in this Court  explaining the absence of a claim to the property  by their  predecessors at the time of the Inam Inquiry  namely, respect  for the deity enjoined by Agama Shastra is  not  at all  convincing.   Further,  the giving  of  such  equitable relief must depend on questions of fact, namely, the  income of  the property, the reasonable expenses  and  remuneration for the services, the amounts appropriated by them all  this

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time  and so forth which have not been investigated into  in this  case,  because, no doubt, this question  of  equitable relief  has been put forward as a last resort  after  having lost their battle.  We do not think in the circumstances  of the case any indulgence should be shown to the Archakas even if  it  were  permissible for the Court in a  suit  of  this description to give such relief. 1009 The result, therefore, is that this appeal must fail and  is accordingly dismissed with costs. Appeal dismissed. Agent for appellant: S. Subramaniam. Agent for respondent: M.S.K. Aiyangar.