Sadasiva Aiyar, J.
1. Plaintiff is the appellant. He is the Zemindar of Gannavaram (one of the Nuzvid Zemindars). The suits out of which this appeal and the connected appeals and, certain connected revision petitions have arisen were brought by him (not as Zemindar but as a ryotwari owner of certain lands under the Government) for recovery of the arrears of the rents of the lands from his tenants. The suits were brought in the District Munsif's Court of Gudivada. The. District Judge on appeal returned most of the plaints in these suits on the ground that the tenants are entitled to treat the plaint lands as situate in an 'Estate' under the Madras Estates Land Act and that the suits ought to have been filed in the Revenue Court.
2. The principal contentions argued before us are found in the grounds 3, 4 and 11 of the memorandum of second appeal which are as follows:
3. The lands in dispute having been dealt with at the time of the Inam Commission as inam lands in which the Government possessed the reversionary interest and having been enfranchised in favour of the then holders, the Lower Appellate Court should have presumed that these lands were excluded from the Zemindari at the time of the Permanent Settlement.
4. It being a pure question of fact, whether the full rental value of these lands was included or not in the assets of the Zemindari at the time of fixing the peishcush, the Lower Appellate Court should have addressed itself to this question of fact and decided it on the evidenca or ordered a further enquiry if necessary.
11. The Lower Appellate Court has misunderstood the legal effect of such a resumption and the regrant to the plaintiff under a seri patta on the rights of the defendants, assuming that they were holding the lands at the time of the resumption.
3. In 1859, the Inam Commissioner seems to have thought that he had jurisdiction to deal with these Ranuva Service inam lands and he issued the title deed Exhibit O and three similar title deeds to the four Inamdars.
4. The first and second paragraphs of the title deed (O) are as follows:
On behalf of the Governor-in-Council of Madras I acknowledge your title was Zamindar's service Inam situated in the village of Chorajudi in Taluk at Gallopalli in the District of Masulipatam, claimed to be of acres of one hundred and ninety four of dry lands held for rendering service to the Zamindar.
This Inam is confirmed to you and your successors, subject to the existing quit-rent of Rs 166-12--5 per annum to be held without interference so long as the conditions of the grant are duly fulfilled.
5. The 1st paragraph clearly admits that the service to be rendered was to the Zamindar. The quit-rents mentioned in the 2nd paragraph was payable to the Zamindar and not to the Government. That it is a pre-settlement inam is admitted. I cannot find anything in this title deed to indicate that the Government possessed any reversionary interest in these lands. The statement in the 3rd ground of the appeal memoranda that the lands were enfranchised in favour of the then holders is not supported by this title deed. Exhibit O can therefore only be treated as a document which recognised the grant in Inam of these lands which grant had been made by the Zamindar before the Permanent Settlement.
6. In the Privy Council case in Secretary of State for India v. Kirtibas Bhupati Harichandan Mahapatra I.L.R. (1869) Cal. 710, the question of the nature of Chaukidari Chakran Service under a Bengal Zamindar and the right of the Government to resume and assess the lands as Inam to the service holders were considered. At page 727 their Lordships say 'the lands in dispute admittedly lie within' the ambit of estates settled with the plaintiffs ancestors.' The respondents are the Zamindars and as such they have the prima facie title 'to use the language of the Board in Rajah Saheb Prahlad Sein v. Maharajah Rajendra Kishore Singh (1914) 12 M.I.A. 292 to the full enjoyment of every parcel of lands within their Zamindaris for which they pay revenue to Government. It rests on the defendant to show that. when the Zamindaris were confirmed to the, plaintiffs' ancestors it was' subject to, reservations in respect of any lands which gave Government the power of resuming and assessing it.'
7. Having regard to the nature of the service to be performed by the Inamdars in this case (namely the guarding of the Zamindars treasury and the escorting of the money remittances sent by the Zamindar to the Government treasury, I think that the learned District Judge was justified in finding on the evidence that the service was personal or private to the Zamindar and that as the burden of proving that the income therefrom was not included when fixing the Jama at the Permanent Settlement was on the plaintiff (who sets up the Government's right to resume the Inam) and as sufficient evidence has not been adduced to prove the negative proposition it must be held that the lards were not Lakhiraj lands. See Sri Baja Parthasarathi Appa Rao Bahadur v. Secretary of State I.L.R. (1913) M. 620.
8. It is not shown that the District Judge failed to consider any of the material evidence in the case before he arrived at his conclusions on the facts, those conclusions being, that the lands were not Lakhiraj at the time of the. Permanent Settlement and that the correct inference to be drawn from the nature of the services is that the services were personal and private to the Zamindar and did not partake of a public character.
9. Further in the judgment Ex. P in the suits of 1897 between these same parties, the following statement appears in paragraph 26. 'The service tenure held by them was created for the purpose of doing the private work of the Zamindar and the grant was not for the performance of any public service.' This finding of fact seems also to be res judicata in the present suits. I am therefore of opinion that the contentions in the 3rd and the 4th grounds of the appeal memorandum cannot be accepted.
10. Coming to the 11th ground of the appeal memorandum, it is clear from what I have already stated that the right of resumption of the inam was vested in the Zemindar and not in the Government (See Section 4 of Regulation 25 of 1802 and Sri Baja Parthasarathi Appa Rao Bahadur v. Secretary of State I.L.R. (1913) M. 620. The acts of the Government in 1903, therefore which professed to resume the lands as if they had been excluded from the Permanent Settlement are of no legal efficacy.
11. In the present case the Zamindar himself clearly resumed the lands when the inamdars executed the relinquishment deeds (D series) between 1889 and 1895 in his favour, expressing their inability to perform the services thereafter he having accepted such relinquishment deeds, the Inam then came to an end See Baja Kishen Datt Bam, v. Baja Mumtaj All Khan I.L.R. (1879) Cal.209 and the lands became ordinary ryoti lands of the Zemindary estate. The Zamindar seems to have had for some years subsequently no clear ideas as to the legal effect of his own resumption of the lands, for he seems to have continued to call them Ranuva Navukari Inam lands and to have let them as such on temporary leases to the old inamdar's sub-lessees. The Zamindar's ideas about his rights cannot however alter the nature of the lands or his legal rights therein.
12. By the year 1895 then, all the lands had become ordinary ryoti lands in the Zamindari but nobody had acquired any occupancy rights therein. In fact, the Zamindar sued the Inamdar's lessees and obtained decrees in ejectment against them, ejected them in execution of such decrees and then relet the lands on temporary leases. (See Exhibits P 1, 2 and D series).
13. Then we get to the documents (Exhibit G series) which are of very great importance. Exhibit G is a Yadast dated 15th March 1902 sent by the Tahsildarto the Zamindar.
14. The material portions are as follows : 'Petition No. 178 dated 3-10-01 put in by you that the Ranuva Navukari (militia service) inams in the village of Chorajudi should be specified in your name was received Pattas bearing Nos. 938, 940, 941 and 942 were granted by the Inam Commissioner for the Inam land of acres 448-15 cents mentioned in the said petition. By this it is evident that the said inams are the inams granted before the bara fasli i. e. fasli 1200) and are not subsequent inams. 'When the Inamdars cannot do the service and when you do not require any service you have no authority at all to get the said inams relinquished in your favour by the Inamdars. You have no such authority with respect to the inams subsequent to the bara fasli and not at all with respect to the previous inams. When the inams are Service Inams granted previous to fasli 1200, the Government only have the right to resume the said inams, and nobody else has any right. 'It is therefore hoped that the reply will be sent immediately why the Government should not resume the lands mentioned in your petition.' Then on 28-5-02 a reminder G 1 was sent by the Tabaildar to the Zamindar and we are. led to infer that negotiations went on between the Zamindar and the Government Eevenue Officer about the Government's rights to treat ,the lands as ryotwari lands and to impose full assessment thereon and the Zamindar seems to have been persuaded by the Bevenue authorities to admit the claims of the Government and to treat himself as a ryotwari tenant of the lands under the Government. The Collector wrote to the Board of Revenue on 1-6-1903 that the lands may be charged full assessment less the Jodi which was payable to the Zamindar. The. Board of Revenue passed proceedings G. 6 on 29-7-03 accordingly. The Tahsildar finally sent the Yadast (Exhibit G 3) on 24-9-02 to the Zamindar of Gunnavaram in which he says that the Board of Revenue had resumed the lands covered by the inam title deeds 938, 940, 941 and 942 and ordered the levy of full assessment less the Jodi and that inams will thereafter be treated as ryotwari lands. The Zamindar evidently accepted this decision of the Board. Then Exhibit G 4 dated the 30th March 1904 says that it had been decided that the seri patta for the lands will be granted in the Zamindar's name. It is not denied that the Zamindar has since then treated the lands as his private ryotwari lands and has been letting them on temporary leases to the defendants and others. It seems to me clear that from about the end of 1903 by arrangement between the Zamindar and the Government the lands which till then were part of the permanently settled estate were taken out of that estate. The Government's right to impose full assessment having been accepted by the Zamindar who was the only person then interested in contesting the right of the Government to impose full assessment and the order of the Board of Revenue having become final through the Zamindar's not having sued within one year (See A. 14 of the Limitation Act) to set aside that order of the Board imposing full assessment on these lands could no longer be treated as permanently assessed. I am unable to accept the argument of Mr. Ramadoss that the area of a permanently settled estate cannot be diminished or increased even by agreement between the Zamindar and the Government, when the rights 'of third persons are not affected thereby.
15. Whether in the case of an impartible estate a diminution could be made by agreement between the then holder of the estate and the Government so as to affect the rights of the succeeding Zamindars after the enactment of the Impartible Estates Act need not be considered in this case as the Gunnavaram estate is admittedly a partible estate. The plaintiff in this case was the sole owner of the Zamindari including the plaint lands in 1903. He was entitled to agree to the imposition of full assessment on the plaint lands provided the then existing rights of no other person and no rights of any other such person existed then. When full assessment was imposed therefore under those circumstances these lands ceased in my opinion to form part of the permanently settled Zamindary estate. Tvhe learned District Judge says that the arrangement between the Zamindar and the Government, 'might estop the Government from selling the plaint land as part of the estate should arrears of peishcush arise and that the arrangement might estop the Zamindar in any claim between him and the Government as to its nature.' But he proceeds to say that this could not affect the rights of third parties, that is, the tenants who were cultivating the lands in 1903. But those tenants had no rights then which could be affected by the acts of the Zamindar and of the Government in taking away these lands out of the lands included in the Permanent Settlement, except the right to enjoy the lands under their prior leases till 1904 and that right of enjoyment was fully exercised by them till the 1st of July 1904 and was in no way affected or intended to be affected by the arrangement between the Zamindar and the Government. The learned District Judge was not justified in treating the lands as continuing to be parts of the permanently settled estate till the Estates Land Act came into force on 1-7-1908 and in their granting to the defendants who had come on as the tenants of ryotwari lands the benefit of Section 6 of the Madras Estates Land Act. In this connection I have to notice that while in the muchilikas C to C 27, C 47, C 57 and C 58 executed between the years 1893 and 1899, the lands are. described as Ranuva Inam lands, in all as Ranuva Inam lands, in all the muchilikas executed after the Government and the Zamindar had agreed to treat the land as Government, ryotwari lands (see Exs. C 28 to C 46, C 48 to C 56, C 59 and G 60, that is after the year 1903, the lands are described mostly as the plain-, tiff's, savaram lands or 'own' lands. No provision of any Statute Law has been pointed out (and I have not been myself able to find any) which prevents a Zamindar from consenting to the Government imposing ryotwari assessment on the whole or portions of his zamindari lands provided the existing rights of others in such lands are not affected thereby. Some reliance was placed by the Respondent's learned Vakil on the form, of the sannad issued to Zamin dars before 1870 (see the standing orders of the Revenue Board Vol. II page 153.) The second paragraph has the words. 'The British Government... has resolved... to fix for ever a moderate assessment of public revenue on such lands which shall never be liable to change under any circumstances.' It is clear that the first two paragraphs of this sanad are not the, operative part thereof. The second paragraph at the end says that the Government have resolved to secure the free exercise of the religious institutions and domestic usages of their ancestors 'to the Government's native subjects.' Farther the rights granted to the Zamindars were the latter's private rights as is indicated by some other words in that same paragraph namely, that the Government was resolved to institute Courts of Judicature for the protection of these valuable rights. The Zamindar's privata rights however valuable, can be surrendered to the Government unless such surrender is prohibited by Statute Law. It is significant again, that this paragraph (two) of the old form of sanad has been omitted from the new form of sanad (page 154) as inappropriate to a title deed.
16. In the result I would hold that the suit is cognisable by the District Munsif and setting aside the order of the District Judge returning the plaints for presentation to the Revenue Courts. I would remand the suits for rehearing of the Appeal No. 429 of 1914 presented to it, and for fresh disposal on the other points raised in the appeal grounds in the memoranda presented to the District Court other than the questions by the 3rd and 4th issues framed in this suit. This judgment governs all the connected cases, one of the results being that similar orders will be issued in C. M. A. Nos. 237 to 246.
17. The Memorandum of objections in these appeals relate to the District Court's orders as to costs. As the District Court's orders have been wholly set aside it is unnecessary to deal with the objection memoranda.
18. C.R.P. Nos. 365 to 369/15 and 58 to 64 of 1915 are allowed and the Subordinate Judge's orders in these suits directing the plaints to be presented to the Revenue Court will be set aside and the Court of First Instance will be directed to dispose of these suits itself.
19. C.R.P. Nos. 676 to 680 of 1914 and 49 to 54 of 1915 will stand dismissed with costs.
20. Costs in the C.M. As. and the other C.R.Ps. incurred hitherto will abide.
21. The first point taken before us in this second appeal is that the learned Judge has not decided as a question of fact what ought to have been so decided but has considered himself bound by the decision in 88 Mad. 620 to hold that the services of the Inam are such as to make it certain that the whole meivaram interest in the land was taken into consideration for the purposes of Permanent Settlement. For the respondent, our attention is invited to paras. 7 and 9 where a number of Exhibits are considered. It is unfortunate that the District Judge did not realize that the question of the nature of the services was one of the points for determination within the meaning of Order 41 Rule 31 and state it accordingly. From the fact that he has not done so, I am strongly inclined to think that he considered the above decision to have disposed of that question all the more so as it was on appeal from his Court. In para. 8 he refers to the fact that the District Munsif has well discussed the duties in his judgment and accepts his conclusion drawn, but I cannot find anywhere a decision on the question whether-those duties were so personal and private to the Zemindar as to lead to a presumption in one direction. Still less, do I find any examination of the evidence to see if that presumption is rebutted or strengthened. He states only two questions. The firsb is whether the resumption of the Inam by the Government even though acquiesced in by the Inamdar i.e., the Zemindar would have the effect of converting the land into Ryotwari. This assumes that the consent of the Inamdar would affect the position which is the very point in issue for if it was an excluded Inam, the right of Government to resume on the admitted discontinuance of the duties would be unaffected by the consent or refusal of either the Inamdar or the Zemindar cnlyto safeguard his collection's, and assumes that a presumption of inclusion would arise. Having raised that presumption he passes away from the question altogether and considers the effect of resumption and of the consent of the Zemindar. He then goes to the question what rights. had the tenants in 1903 and it is to decide that question that he examined the evidence in the case and not for the purpose of answering the important question of inclusion. In ray opinion he should have examined the evidence and not relied on a presumption unless the evidence was inconclusive.
22. In Venhatarangayya Appa Bow v. Appalaraju (1970) 20 M.L.J. 728 a case from the same district the learned Judges had to deal with a case of minstrel service, a much more private serviee than that in this case and slated the presumption of inclusion strongly but they remitted it to the District Court for a finding whether the land was Lakhiraj and in 38 Mad. at p. 624 the question is stated to be purely one of fact. I have dealt with this point at length because I find myself unable to agree with the view expressed by my learned brother that he should accept the finding of the Lower Appellate Court, and the further view that the finding is correct. On this latter point, I desire to express no opinion, I have a great dislike to deciding questions of fact on presumptions where there is evidence and I differ with my learned brother in thinking it prima facie unlikely that Government would have consented to exclude these service Inams at the time of Permanent Settlement. I should require more evidence as to the nature of the armed police force available at that time to guard, the revenue two-thirds of which belonged to Government and I think care should be exercised lest one unconsciously applies one's knowledge of conditions existing at present to a state of affairs fifty years before any organsied police force came into existence. There is however no necessity to express an opinion on the point or to call for a finding as I agree with my learned brother that these lands have become Eyotwari by agreement between Government and Zemindar. Like my learned brother, I express no opinion whether an agreement made after the Madras Estates Lands Act would operate in the same manner or whether it would have had any effect if the lands in question had been held by tenants having at the time rights of permanent occupancy and if so, what effect. Such questions do not arise here. But I can see no reason why apart from those considerations a Jamindar or Inamdar should not be at liberty to agree to waive his special rights and submit to ordinary ryotwari assessment. The Zamindar has clearly done so and he accepts the position. I therefore agree with, the order proposed by my learned brother.