Varada Bhavanarayana Rao Vs. State of
Andhra Pradesh & Ors [1963] INSC 68 (25 March 1963)
25/03/1963 GUPTA, K.C. DAS 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. 1Madras 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 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 presumption
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.
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 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 subjectmatter 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 subjectmatter 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 subsequently 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 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 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 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 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 langi age
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 parties 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.
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