PETITIONER: GONDUMOGULA TATAYYA Vs. RESPONDENT: PENUMATCHA ANANDA VIJAYA VENKATARAMA TIMMA JAGAPATHIRAJU(AND DATE OF JUDGMENT: 20/02/1962 BENCH: DAS, S.K. BENCH: 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. 325 JUDGMENT:
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.
