Gondumogula Tatayya Vs. Penumatcha
Ananda Vijaya Venkatarama Timma Jagapathiraju [1962] INSC 66 (20 February 1962)
20/02/1962 DAS, S.K.
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.
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 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 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 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 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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