Nedunuri Kameswaramma Vs. Sampati
Subba Rao [1962] INSC 146 (17 April 1962)
17/04/1962 HIDAYATULLAH, M.
HIDAYATULLAH, M.
DAS, S.K.
SHAH, J.C.
CITATION: 1963 AIR 884 1963 SCR (2) 208
CITATOR INFO :
F 1977 SC 27 (7,8)
ACT:
Pleading-Written statement not traversed-Relevant
issue not raised but material evidence led by parties-Effect-Construction of
document, when involves issue of law-Karnikam service inam Dumbala Dharmila
inam-Madras Permanent Settlement Regulation of 1802 (Madras Regulation 25 of 1802)
Madras Karnams Regulation 1802 (Madras Regulation 29 of 1862)-Madras Hereditary
Village Offices Act, 1895 (Mad. III of 1895). The Madras Proprietary Estate's
Village Service, Act, 1894 (Mad. II of 1894) s. 17.
HEADNOTE:
The appellant filed a suit for ejectment of
the respondent from 4 80 acres of jeroyti land and for mesne profit, which was
based on a kadapa executed by the respondent in 1951;
agreeing to pay an annual rent, and to vacate
the land peacefully at the end of the year of tenancy. Similar kadapas,were
executed in earlier years. The respondent denied that the land was jeroyti land
and alleged that-,' it was a part of Dharmila inam land granted to his
predecessors more than 100 years ago though muchilakas were taken every year,
and claimed kudiwaram rights for himself.. He contended that the appellant had
only melwaram rights which she had lost as they 209 became vested in the
Government after the Estate Abolition Act. The appellant did not seek
permission of the court to file a rejoinder to the pleas of the respondent, and
the trial proceeded without raising any issue with regard to the subject of
Dharmila inam. The trial court found that the land was originally karnikam
service inam, which was resumed by the Zamindar in 1925 and regranted as
jeroyti land. On appeal a ground was raised that the respondent was prejudiced
because the decision was given without any pleas or issue that the land was a
Karnikam service inam. The first appellate court found against the respondent
but the High Court held that the suit deserved to be dismissed on the short
ground that the decision of the two courts below proceeded on a matter not
pleaded or raised as an issue; and held further that the land was a Karnikam
service inam and dismissed the suit.
The appellants came up by special leave to
the Supreme Court. The questions are : (a) whether the suit should be dismissed
on the ground of want of proper plea by the appellant in answer to the written
statement and (b) whether the decision that this was not a Karnikam service
inam is proper in the circumstances of the case.
Held, that since each party went to trial
fully knowing the rival case and led all the evidence not only in support of
its own contentions but in refutation of those of the other side, it cannot be
said that the absence of an issue was fatal to the case, or that there was that
mistrial which vitiates proceedings, and the case could not be decided on this
narrow ground.
After the passing of Madras Act II of 1894,
Karnamas were to be paid in cash and s. 17 of the Act enabled the
enfranchisement of lands granted on favourable terms to the Karnamas. Such
lands could be granted for village service either by the State or by the
proprietor. The gist of s. 17 was that lands granted for the remuneration of
the Karnamas were to be resumed by the State if granted by the State, and by
the proprietor, if granted by the proprietors and the second proviso to s. 17
was not limited to village artisans.
or village servants doing private service but
embraced other village servants like Karnamas and others.
Held, that from 1903 to 1925 the suit land
was treated as held on Karnam service inam liable to be resumed by the
Zamindar, that in all the subsequent documents, it was described as jeroyti
land, and that the land was held as Karnikam service inam on the date of
resumption, and that 210 it was granted as jeroyti land after resumption of the
Karnikam service inam.
Held, also, that a construction of document;
(unless they are documents of title) produced by the parties to prove a
question of fact does not involve an issue of law, unless it can be shown that
the material evidence contained therein was misunderstood by the Court of fact.
Held, further, that a concession made by
counsel either by mistake or by ignorance on a point of law is not binding on
the client.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 233 of 1960.
Appeal by special leave from the judgment and
decree dated September 4, 1958, of the Andhra Pradesh High Court in Second
Appeal No. 633 of 1955.
A. Ranganadham Chetty, A. V. Rangam and T.
Satyanarayana for the Appellant.
K.Bhimasankaram and I. V. R. Tatachari for
the Respondent.
1962, April 17. The Judgment of the Court was
delivered by HIDAYATULLAH, J.-This is an appeal with special leave against a
judgment in second appeal of the High Court of Andhra Pradesh, by which a suit
filed by the appellant was ordered to be dismissed, thus reversing the
judgments and decrees of the two Courts below.
The suit was simple, but as it went on from
appeal to appeal, it has widened out. It was filed by the appellant for
ejectment of the respondent from 4.80 acres of jeroyti land bearing R. S. No.
186/1-2 in Nedunuru Village and for mesne profits. 'The suit was based on
kadapa executed by the respondent agreeing to pay an annual rent of 58 bags of
paddy and a sum of Es. 38/towards 211 thirwa and cesses, the appellant
undertaking to pay the jeroyti tax. The respondent agreed to vacate tile land
peacefully atthe end of the year of tenancy is kadapa is Ex. A1 dated April 4,
1951. Similarly,yearly kadavas were 'executed in earlier and 1948 were also
produced in the case.
The respondent, however, raised many pleas.
He denied that the land was jeroyti land, alleged that it was part of a
Dharmila inam land bearing R. S. No. 186/1-2, that the inam was granted to the
appellant's predecessors more than 100 years ago, that the respondent's
ancestors were ryots of that land from the very beginning, though muchalikas
were taken from them every year and were executed by him and also his
predecessors out of ignorance and under threats. The respondent claimed the
kudiwaram rights for himself and averred that the appellant had only the
melwaram rights which she lost, as they became vested in the Government after
the Estates Abolition Act. He, therefore, contended that the appellant was now
entitled only to a right to compensation, but had no right to the kudiwaram or
the right to bring the present suit. The respondent also alleged that the
appellant's husband who was a karnam had himself made entries in the Adangal
accounts which he maintained, showing the suit land as Dharmila inam.
The appellant did not seek permission of the
Court to file a rejoinder to the pleas of the respondent, but must be taken to
have denied them. it appears that in the trial her stand was that this was not
a Sarvadumbala inam but a karnikam service inam, i.e., an inam in lieu of wages
for village service, which was resumed by the Zamindar of Pithapuram, who
granted a jeroyti patta (Ex. A-5) on September 1, 1925 to Vakkalanka Venkata
sub. barayudu, the predecessor of the appellant. The question which was thus
tried by the District Munsif, 212 Amalapuram, embraced an issue as to whether
the suit land was a Dumbala Dharmila inam before 1925 and had continued till
the Estates Abolition Act was passed and enforced, or whether it was a Karnikam
service inam granted by the Zamindar of Pithapuram, who could and did resume it
in 1925 regranting the land to Vakkalanka Venkatasubbarayudu. It is clear that
if the suit land was a Dharmila Dumbala inam, the appellant would have bad only
melwaram rights, which she must be deemed to have lost under the Estates
Abolition Act, and consequently the respondent would now be considered to have
become a ryot. If the suit land was a Karnikam service inam, then the
resumption by the Zamindar of Pithapuram in 1925 would be valid and the regrant
to Venkatasubbarayudu would make him a tenant and the respondent, a sub-tenant
liable to ejectment according to the terms of the kadapa executed by him.
Unfortunately, by reason of the fact that the pleas on the subject of Dharmila
inam were exclusively raised in the written statement, which pleas were not
traversed by the appellant, the issue framed was :
"whether the suit land is Dharmila inam,
and if no, whether the suit in ejectment is maintainable ?" The issues
whether the land was a Karnikam service inam and whether there was valid
resumption and a valid re-grant, were not framed. Before the District Munsif,
Amalapuram, however, parties led their evidence on the issue, as if it embraced
all the other issues not specifically framed.
Twice the case was reopened to give the
respondent a chance to lead more evidence, though even so late as that, no
attempt was made to get the issue modified or the proper pleadings to be made.
After the District Munsif decreed the suit, a ground was raised before the
Subordinate Judge, Amalapuram in appeal that the respondent had been 213
prejudiced, because the decision was given without any plea or issue that this
was a Karnikam service inam, which decision lay at the root of the decree. The
learned Subordinate Judge in the appeal before him held that the absence of the
issue regarding the Karnikam service inam had not prejudiced the respondent, who
had himself set up a case of Dharmila inam and had also met the case of a
Karnikam service inam and had filed documents and led evidence in refutation of
the other case. He upheld the decision of the District Munsif that this was a
Karnqkam service inam, and be confirmed the decree passed by him. On second
appeal, the learned single Judge in the judgment under appeal held that the
suit deserved to be dismissed on the short ground that the decision of the two
Courts below proceeded on a matter not pleaded or raised as an issue. He,
however, went on to consider whether the land in question was a Sarvadumbala
Dharmila inam or a Karnikam service inam, and came to the conclusion that the
two Courts below were wrong in holding that it was a Karnikam service inam. He,
therefore, allowed the appeal, and ordered the dismissal of the suit.
In this appeal with special leave, only two
questions arise, and they are (a) whether the suit should be dismissed on the
ground of want of proper pleas by the appellant in answer to the written
statement, and (b) whether the decision that this was not a Karnikam service
inam is proper in the circumstances of this case.
On the first point, we do not see how the
suit could be ordered to be dismissed, for, on the facts of the case, a remit
was clearly indicated. The appellant had already pleaded that this was jeroyti
land, in which a patta in favour of her predecessors existed, and had based the
suit on a kadapa, which showed a sub-tenancy. It was the respondent 214 who had
pleaded that this was a Dharmila inam and not jeroyti land, and that he was in
possession of the kudiwaram rights though his predecessors for over a hundred
years, and had become an occupancy tenant. Though the appellant had not
mentioned a Karnikam service inam, parties well understood that the two cases
opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam
service inam. The evidence which has been led in the case clearly showed that
the respondent attempted to prove that this was a Dharmila inam and to refute
that this was a Karnikam service inam. No doubt, no issue was framed, and the
one, which was framed, could have been more elaborate ; but since the parties
went to trial fully knowing the rival case and led all the evidence not only in
support of their contentions but in refutation of those of the other side, it
cannot be said that the absence of an issue was fatal to the case, or that
there was that mis-trial which vitiates proceedings. We are, therefore, of
opinion that the suit could not be dismissed on this narrow ground, and also
that there is no need for a remit, as the evidence which has been led in the
case is sufficient to reach the right conclusion.
Neither party claimed before us that it had
any further evidence to offer. We therefore, proceed to consider the central
point in the case, to which we have amply referred already.
The appellant examined four witnesses and
respondent, seven in support of their respective cases. The High Court and the
two Courts below did not rely upon the oral testimony at all. In view of this,
it is not necessary to refer to the evidence of these witnesses, except where
the proof of a document is to be considered. The decision in this case
therefore, depends upon the documents produced by the two parties in proof of
their own contentions. These documents stand divided 215 two kinds : (a) those
in which the inam is described as Dharmila inam and (b) those in which it is
described as Karnikam service inam. Some of these documents do not appear to
have been properly proved. There are, besides, many documents which were filed
in the case but which are difficult to connect with the land in dispute. The
last category will obviously have to be excluded from consideration. The most
important document, of course, is the jeroyti patta (Ex. A-5) granted by the
Zamindar of Pithapuram on September 1, 1925, because if the. land was held for
Karnikam service from the Zamindar, then it is admitted that it could be
validly resumed and re-granted by the Zamindar. The attempt of the respondent,
therefore, which succeeded before the High Court but which had failed before
the two Courts below was to show that the land was a Sarvadumbala inam, which
could neither be resumed by the Zamindar of Pithapuram nor regranted by him.
The learned single Judge in the High Court
treated the finding, that prior to 1925 what existed was a Karnikam service
inam, as a finding of law open to him to consider in second appeal. After a
painstaking examination of the documents filed by the parties, he came to the
conclusion that there was no such thing as a Dharmia Karnikam service inam. He
held that the Zamindar had no power to resume this land under the second
proviso to s. 17 of the Madras Proprietary Estates' Village Service Act, 1894
(11 of 1894) or to re-grant it on jeroyti patta. In this appeal, it is argued,
at the outset, that the learned single Judge, in substance, reversed a finding
of fact and that he was not entitled to do so under s. 100 of the Code of the
Civil Procedure.
A Construction of documents (unless they are
documents of title) produced by the parties to prove a question of fact does
not involve 216 an issue of law, unless it can be shown that the material
evidence contained in them was misunderstood by the Court of fact. The
documents in this case, which have been the subject of three separate
considerations, were the Land Registers the Amarkam, and Bhooband Accounts and
the Adangal Registers, together with certain documents derived from the
Zamindari records. None of these documents can be correctly described as a
document of title, whatever its evidentiary value otherwise. We do not,
however, wish to rest our decision on this narrow ground even if right, because
the legal inference from the proved facts may still raise a question of law.
Before we examine for ourselves the various
documents in the record of the case we wish to determine the exact point which
the evidence has been held to establish. The term "Dharmila" is not a
term of art, but is a convenient expression to describe those inams which are
post-settlement as distinguished from those that are pre-settlement. Under s.
11 of the Estates (Abolition and Conversion into Ryotwari) Act, 1948 (26 of
1948 , every ryot in an estate shall, with effect on and from the notified
date, be entitled to a ryotwari patta in respect of all ryoti lands.
The Act abolishes all rights and interests in
an estate belonging to any land holder, and the word "estate"
includes an inam estate within the meaning of s. 3(2)(d) of the Estates Land
Act. Another consequence of the notification is to extinguish the relationship
of the land holder and ryot from the notified date. To avoid the consequences
of the Estates (Abolition and Conversion into Ryotwari) Act, both sides claim
the benefit of s. 11 of that Act, the appellant claiming occupancy right on the
strength of the patta read with the provisions of the Madras Estates Land Act
as amended in 1936, and the respondent, on the strength of the averment that
the appellant 217 and her predecessors held an inam estate having only the
meluwaram rights, which got extinguished. Whether the one or the other is
right, therefore, depends upon whether the appellant held an inam or was merely
a pattadar and thus an occupancy tenant now entitled to be a ryot, and the
respondent was merely a sub-tenant. It is from this point of view that the
evidence of documents in the case should be viewed.
Before considering this evidence, it is
necessary to refer to the provisions of the three statutes, which will clear the
ground for our findings. The Madras Permanent Settlement Regulation of 1802
(Madras Regulation 25 of 1802) was passed to fix for ever a moderate assessment
of public revenue not liable to be increased under any circumstance, to ensure
to the proprietors of lands the proprietary right of the soil. Under that
Settlement, instruments fixing the demand were to be delivered to the
proprietors, and they, in their turn, were to execute Kabuli at accepting the
assessment. Where a part of the Zamindari etc. was sold either in invitum or by
private negotiation, the assessment on the separated lands bore the same
proportion to the actual value of the separated portion, as the total permanent
jama on the Zamindari bore to the actual value of the whole Zamindari. The
Zamindars, were required to furnish true accounts for this purpose. Section II
of the Regulation provided that the Zamindars or landholders should support the
regular and established number of karnam in the several villages of their
respective Zamindaries. These karnams were to obey all legal orders, but were
removable only by a sentence of a Court of Judicature. Simultaneously, the
Madras Karnams Regulation of 1802 (Madras Regulation 29 of 1802) was passed to
provide for the efficient establishment of the office of a karnam, so that
authentic information and accounts might be had. This Regulation provided for
the 218 establishment of karnam for each village if the revenue was 400 pagodas
or more, but it was possible for a karnam to be appointed for two or more
villages where the revenue was less. The office was hereditary except for
proved incapacity of the successor. Lists of karnams and of villages under each
had to be deposited in the Collectorate.
Elaborate provisions were made for the duties
of the karnams, the accounts and registers they had to maintain, to the
accuracy of which the karnams were compelled to swear.
In 1894, the Madras Proprietary Estates'
Village Services Act, 1894 (11 of 1894) was passed to make, better provisions
for the appointment and remuneration of the karnams among others. The Act was
extended to certain classes of village officers by whatever designation known
locally-viz., (1) Village Accountants.
(2) Head Villages.
(3) Village watchmen or police officers.
On the extension of the Act or any portion
thereof to the office of a village accountant in any estate, s. 11 of
Regulation 29 of 1802 and Madras Regulation 99 of 1892 were to ceased to be in
force. "Estate" was defined to include any permanently ,settled estate
or any portion of permanently settled estate separately registered or any inam
village or any portion consisting of one or more villages of any of the estates
specified earlier held on permanent under tenure. "Village-office"
was defined to mean in respect of any estate, an offence in such estate to
which the Act or any portion thereof was extended and "Village officer"
meant a person holding or discharging the duties of such office Chapter III of
the Act then provided for the imposition of a village service coos, its amount
on 219 apportionment and the method and incidents of its levy.
This was to provide funds for payment of
remuneration to the village servants who, prior to the Act, were often
remunerated by grant of lands. Section 17 then provided :
"17. If the remuneration of a village
office consists in whole or in part of lands, or assignments of revenue payable
in respect of lands, granted or continued in respect of or annexed to such
village-office by the State, the State Government may enfranchise the said
lands from the condition of service by the 'imposition of quit-rent under the
rules for the time being in force in respect of the enfranchisement of
village-service-inams in villages not permanently settled or under such rules
as the State Government may lay down in this behalf, such enfranchisement shall
take effect from such date as the State Government may notify:
Provided that the said' enfranchisement shall
be applicable to all lands or assignments as aforesaid even though, at the time
this Ac t comes into force they may not be devoted to the purpose for which
they were originally granted ; and provided further, that any lands or
emoluments derived from lands which may have been granted by the proprietor for
the remuneration of village-service and which are still so held or enjoyed may
be resumed by the grantor or his representative." The section dealt with.
the enfranchisement of two kinds of lands : (a) lands granted the State to be
enfranchised by the State, and (b) : lands granted by the proprietor to be
enfranchised by the proprietor. Previously, in fixing. the peishkush of 220 the
Zamindar, due regard was given to the expenses of the office of a karnam, and
they were excluded from the assets of the Zamindari. An adjustment of the
peishkush was allowed by the Act.
From the above, it will be seen that after
the passing of Act II of 1894 the karnams were to be paid in cash and the Act
enabled the enfranchisement of lands granted on favourable terms to the
karnams. The lands granted by the State were to be enfranchised by the State
and those granted by the Zamindar by the Zamindar. The learned single Judge was
of the view that the lands granted or held by way of remuneration for the
performance of the village office such as that of a karnam could only be
enfranchised by the State Government and not by the Zamindar; who had nothing
to do with such lands. The action of the Zamindar in this case in 1925 to
resume the lands and to re-grant them by a jeroyti patta was thus said to be
entirely without jurisdiction. It was held that if these lands were originally
Dharmila inams, they could not be resumed by the Zamindar, nor re-granted, and
the learned Judge was of the further view that there was no such thing as a
karnam service inam.
The words of s. 17 of Act II of 1894 quite
clearly show that lands could be granted for village service either by the
State or by the proprietor. The title of the Act is "Proprietary Estates'
Village Service". The words "village service" are used in the second
proviso to s. 17. Much distinction cannot, therefore, be made between villageofficers
and village servants, as is made in the Madras Hereditary Village-Offices Act,
1895 (III of 1895). We do not think that the second proviso is only limited to
lands granted by the proprietors to village artisans or village servants such
as the astrologers and the purohits. Even in the Hereditary Village Offices
Act, the term "office" is used not only in 221 the title but in
connection with artisans and village servants. The gist of s. 17 thus was that
lands granted for the remuneration of the karnams were to be resumed by the
State if granted by the State, and by the proprietor, if granted by the
proprietor.
The land in question in this case has not
been shown to be granted at any time by the State. Resumption by the State
under s. 17 was thus out of question. The only question is whether it was a
Dharmila inam, i.e. a personal service inam granted after the settlement. or a
grant for Karnikam service. That the land was held as Karnikam service inam on
the date of resumption is amply proved by the proceedings.
The question is whether it 'was a Karnikam
service inam. On this point, the oral evidence has not been considered, and we
have thus only the documents filed by parties.
of these documents Exs. B-37 to B-43, which
are the Dharmila inam accounts of Neduru village for fasli 1290 relating to
Palivela Thana need not be considered, because it is impossible to connect them
with the suit land.
Similarly also, Ex. A-17 series, the file of assessment
receipts showing payment of taxes to Pithapuram Estate, are all after Ex. A-5,
and do not add weight to it. They also concern diverse lands, and cannot be
said to clinch the issue. Exhibits A-8 to A-11, A-14 and A-15 are the previous
Kadapas executed in favour of the appellant similar to Ex. A-1, on the suit was
based. They are not relevant to decide the controversy, except in so far as
there is an admission by the respondent that he has taken these lands on a
yearly lease. Exhibits B-4 to B-12 are the assessment receipts from the jeroyti
ryots. They do not mention the suit land, but the name of Vakkalanka
Venkatasubbarayadu is mentioned in them. They show that Venkatasubbarayudu was
paying jeroyti tax to the Estate from 1888 to 1901, which is the 222 period
covered by the, receipts. These too cannot be said to help the appellant,
because the identity of the lands again is not clear. The remaining documents
undoubtedly speak sometimes of the land as Dharmila inam and sometimes as held
for Karnikam service. The documents on which the appellant relies are divided
into two parts,, those after the patta, Ex. A. 5 dated September 1, 1925 or in
connection with the grant thereof, and those before the grant of the said
patta. Exhibit B-1 is of the year 1903, and is a certified extract of the land
register of Nedunuru village for the suit land, and there, it is clearly shown
that this was a Dharmila inam held for Karnikam service.
Exhibits B-14 and B-15 both of June 15, 1903
also show the same thing. The first is a certified extract of a statement of
Vakkalanka Venkatasubbarayudu before the Deputy Inam Collector, and the land is
described as "Paikars Mirasi in Karnam Service' " The other also
mentions it as a service inam. These documents do not bear out the contentions
of the respondents, even though Vakkalanka Venkatasubbarayudu seemed to have
objected at the time. In Ex. B-18, which is another entry from the land
registers, the land is shown as Dharmila inam for' service as Karnikam. In Ex.
A-2 of 1920-21, which is a statement of Dharmila inams and services from the
Pithapuram Estate, the inam is shown "for service", but there is a
note :
",There is no need to continue this Inam
free of service. This should be resumed and assessed, if no agreement is given.
Continue as long as the service is rendered properly.
(Signed)... .. for Raja.", and
underneath, there is another endorsement :
"Immediate steps should be taken to
resume his Inam and assess, as they are being paid money." 223 This shows
that by 1910-21 the change in law under which there was a money payment for
Karnikam service was taken note of, and the lands were asked to be resumed by
the Zamindar under s. I' of Act 11 of 1894. In Exhibits A-3 and A-4 (1923 and
1924), the Dewan again orders resumption of these lands, and in the latter,
notice was ordered to be sent through a vakil. This notice was apparently
issued in October, 1924, and the reply to it was given by Vakkalanka
Venkatasubbarayudu in Ex. B-34, where he stated that the lands were not Dharmila
Karnikam service inam. The admission of Vekkalanka Venkatasubbarayuda is used
by the respondent as an admission against himself; but it is quite clear that
Vakkalanka Venkatasubbarayudu made that statement merely to avert resumption of
the lands, which was quite contrary to the facts already stated by us. Indeed,
the Pithapuram Estate did not pay attention to it, and took a statement from
Venkatasubbarayudu on September 1, 1925 (Ex. B-35) that he was willing to have
a jeroyti patta, though he stated that his action was without prejudice to any
case that he might file in Court. Venkatasubbarayudu never filed a suit, and
accepted Ex. A-5, the jeroyti patta in 1925.
In addition to these documents, the appellant
relied on Ex.A-12 an important document of 1904, which is an extract from the
Survey and Settlement Register. This land is there shown as held for karnam
service. He also relied on Ex. B.
25, but that is not a document relating to
this land.
From the above, it will appear that right
from 1903 to 1925 this land was treated as held on karnam service inam liable
to be resumed by the Zamindar. The other documents show that it was, in fact,
so resumed and a jeroyti patta was given, and in all the subsequent documents,
it is described as jeroyti land.
224 The other side relies upon some accounts
which have been summoned from the Estate. Exhibits B-28 to B-30 are the
Bhooband accounts of 1814, 1850 and 1851. They relate to some lands which are
described as dumbala inams in Chalapalli Nedunuru group., These accounts cannot
be connected with the suit land, and no legal inference can be drawn from them.
Exhibit B-36 (1906) is the Jhadta account of fasli 1316. The land in suit is
mentioned, and there is a not :
"Entered as kardam service inam but not correct.
It is a Dharmila iiiam." There is no proof why this entry was made in the
Jhadta account, who wrote it and when, and the entries are contradicted by the
action of the Zamindar between 1921 and 1925 under which these lands were, in
fact, resumed, which they would not have been if they were Dharmila inam. This
endorsement was held by the District Munsif not to have been proved. P. W. I
could not depose to this fact, and we must treat the endorsement as
inconclusive, The next is Ex. B-42 of 1892. That is a Dharmila Inam Statement
of Nedunuru Palivela Thana. The Palivela Inams, according to the remarks column
were granted for ferry service. There is an entry in the name of Vakkalanka
Venkatasubbarayudu under the heading "Shrotriem or service", and the
entry there reads :
"Dharmila Inam", but the extent of
the land and its numbers are missing, and thus, there is no satisfactory
evidence that this was the land which was described there. There is also a note
to the following effect :
"It is not known when the Inams were
granted, by whom they were granted and for what purpose they were granted. No
documents are available." 225 This document does not throw any light upon
the controversy, in view of the lack of material to connect it with the suit
land. Exhibit B-2 is the Adangal Register of Fasli 1333, and the land is shown
there as Dharmila inam. It is said that this Adanyal Register was written by
the appellant's ancestor, who was the karnam. The fact that he was the karnam
concedes a great deal of the appellant's case. The entry made by the then
karnam in a register which might not have been accurately maintained, cannot
lead to an inference that he made this entry against his own interest. In fact
these people were claiming about that time that they bad a Dharmila inam, so
that it would not be resumed, and it may be that the entry was made merely to
support a case.
Similarly, Ex. B-26 of 1920 is another
account, and might have been written with the same object. The last document is
Ex. B-28, which is a list of the dumbala inams in the Zamindari. There are no
numbers of the lands, and there is thus nothing in it to connect the list with
the land in suit.
From the above analysis of the documents, it
is quite clear that the documents on the side of the appellant established that
this was a Karnikam service inam, and the action of the Zamindar in resuming it
as such, which again has a presumption of correctness attaching to it, clearly
established the appellant's case. Much cannot be made of a concession by counsel
that this was a Dharmila inam, in the trial Court, because it was a concession
on a point of law, and it was withdrawn. Indeed, the central point in the
dispute was this, and the concession appears to us to be due to some mistake or
possibly ignorance not binding on the client. We are thus of opinion that the
decision of the two Courts below which had concurrently held this to be jeroyti
land after resumption of the Karnikam 226 service inam was correct in the
circumstances of the case, and the High Court was not justified in reversing
it.
The appeal is, therefore, allowed, the
judgment of the High Court
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