Buddu Satyanarayana & Ors Vs.
Konduru Venkatapayya & Ors [1953] INSC 12 (26 February 1953)
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.]
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 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
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 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, 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 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.
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