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Kamulammal Avergal, Zamindarini of Bodinaickanur Vs. Athikari Sangali Subba Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1918)35MLJ11
AppellantKamulammal Avergal, Zamindarini of Bodinaickanur
RespondentAthikari Sangali Subba Pillai and ors.
Cases ReferredBhaskarappa v. Collector of North Canara I.L.R.
Excerpt:
.....and effect of this document the tenants contend that by this document they obtained a right for all time to come to cultivate whatever extent of land they liked and wherever they liked, and to pay only rs. and an indefinite promise to allow the mannadies to cultivate wherever and whatever they liked is not a grant which the law will recognise as conferring a heritable right. there can be no question that until the present suits were brought the tenants have not been asked to pay anything like the amount no ,v claimed against them. i am satisfied that by consent of parties the printed copy was put on the file instead of the original. it appears from the district manual that the collector recommended the retention of this village in the hands of government for the time being as it was..........45 of the act enables a landholder to recover from a person unlawfully in possession of ryoti land rent in the revenue court. when sections 45 and 163 are read together with the explanation to section 6, clause 2, it is clear that a claim for rent against persons within the estate who occupy ryoti land either by legal right or otherwise must be instituted in the revenue court. therefore even if it is found that the defendants are not regular tenants, the jurisdiction of the revenue court will not be ousted. but i think that in this case having regard to the pleadings and to the defence raised by the defendants there is hardly any room for doubt that the defendants are tenants. we asked the learned vakil for the respondents to state the exact position he contended for his clients. if.....
Judgment:

Seshagiri Aiyar, J.

1. The same point arises in all these Second Appeals. Second Appeals Nos. 1307 to 1340 arise out of suits by the landlord for rent in the Revenue Court. Second Appeals Nos. 1341 to 1370 are from suits by tenants against the landlord to set aside Revenue sales. The first group of cases relates to the rent of fasli 1318. The second group of cases relates to sales for the rent due for fasli 1321. The landlord is the Zamindarini of Bodinaickanur. The tenants are known as Mannadies and reside in the village of Agamalai within the Zamindari. The plaintiff by which expression I refer to the landlord throughout this judgment sued for rent on the ground that Agamalai is within her Zamindari, that she is the landlord and that defendants are her tenants. The plea of the Mannadies is that the plaintiff is not their landlord, that from time immemorial, they have been paying a Bill Mukta amount of Rs. 50 a year known as porppuguthagai, that the said payment was not made by them in the capacity of tenants, that consequently this suit brought in the Revenue Court does not lie and also that the claim for rent is barred by limitation.

2. The Deputy Collector found against most of the contentions of the defendants, but he held that the suit was barred by limitation, that the defendants were not tenants and that consequently the plaint should be returned for presentation to the Civil Court, The judgment was practically confirmed in appeal by the District Judge. Some of the points raised by the tenants are not supported by any documents filed in the case. The courts below have drawn largely from the District Manual of Madura compiled by Mr. J.H. Nelson in arriving at their conclusions. Even this compilation does not help us in finding a solution for many points of antiquarian interest which have been raised by the defendants.

3. Before considering the points argued before us, I may state that we have been assisted a great deal in our task by the well arranged and clearly thought out judgment of the Deputy Collector. The points which have to be considered in deciding whether the Revenue Court or the Civil Court has jurisdiction are these :--(a) Whether the village in which the properties in question are situated is part of an estate, (b) whether the plaintiff is a landlord; (c) whether the lands in respect of which rent is claimed is a ryoti land; (d) whether the defendants are tenants; (e) and lastly what is the amount of rent payable in respect of the holdings of each of the defendants

4. As regards the 1st question, the Deputy Collector was of opinion that Agamalai is part of the Bodinaickanur estate. The District Judge has differed from him mainly on the ground that the sannad relating to Bodinaickanur has not been exhibited in the case. The original of the sannad undoubtedly was not filed. But, it is clear that both parties agreed that a copy of it printed in a Privy Council record may be exhibited in the place of the original. The District Judge says that the sannad was not mentioned as an exhibit in the list of documents in the Lower Court's judgment. His opinion was that the Deputy Collector without exhibiting the document, perused it and used it irregularly in arriving at a conclusion on the question whether Agamalai was within the Bodinaickanur Zamindari. The learned District Judge is clearly under a misapprehension on this question. What happened was that the printed book was put in before the Deputy Collector. He marked that portion of it relating to the sannad as Ex. 62 and put his initials thereunder. Apparently the printed copy was returned to the party without getting a certified copy filed under O. 14, R. 9 of the Code of Civil Procedure. This is undoubtedly an irregularity which has apparently misled the District Judge. But there is no ground for saying that the copy of the sannad was not exhibited before the Deputy Collector. Apparently the District Judge is of opinion that a copy should not have been allowed to be filed. If he thought that the original should be referred to, he should have given the parties an opportunity of producing it having regard to what took place in the court below. Before us, the vakil for the tenants conceded that the copy exhibited is a true copy of the original sannad. We also find, on referring to the printed book that this same copy was filed as an exhibit on a previous occasion in the Munsif's Court. We suggested to the vakil for the respondent that if he desired to have an adjournment in order that the original may be compared with the copy we were willing to grant him time. But the learned vakil said that there is no necessity for the original being sent for. The copy having been exhibited with the consent of both the parties it was not open to the District Judge to have rejected the sannad. The Appellate Court has no doubt large powers in rejecting documents on the ground of their not being relevant. But on the question whether the original should have been produced and whether the lower court was justified in putting on the file a copy, I do not think the appellate court had any right to reject a document exhibited. The reason of the rule is that if one party objected to the copy going in, the other party could have taken steps to produce the original. As was pointed out by the Judicial Committee in A. B. Miller, Official Assignee of the Estate of Ramkishen Das v. Babu Madho Das (1896) I.R. 19 A 76 while the appellate court has jurisdiction to reject a document on the ground of its not being relevant, it has no right to object to a document on the ground of insufficiency of proof. This principle was recognised in Padman v. Hunmantha (1915) 29 M.L.J. 807. Uppara Hanmantha v. Samacharlu (1916) 1 M.W.N. 9. Chimnaji Govind Godbole v. Dinkar Dhondev Godbole I.L.R. (1886) B. 320 and Akbur Ali v. Bhyea Lal Jha I.L.R. (1830) C. 666. Mr. Justice Benson and Mr. Justice Sundaram Aiyar after reviewing all the authorities on the question point out in Sri Rajah Prakasarayanim Garu v. Venkata Rao I.L.R. (1912) M. 160. ' consent or want of objection to the reception of evidence which is irrelevent cannot make the evidence relevant. But consent or want of objection to the wrong manner in which relevant evidence should be brought on record of the suit disentitles parties from objecting to such evidence in a court of Appeal.' I entirely agree with this statement of the law and hold that the District Judge was wrong in not having considered the sannad which was admitted in evidence by the Deputy Collector. On perusing the sannad, it is clear that Agamalai is one of the villages within the ambit of the Bodinaickanur Zamindari. That was the view taken by the Deputy Collector and I agree with him. Therefore the first requisite is satisfied, namely, that the suit village is part of an estate.

5. On the second point it is not easy to follow the tenants' allegations. In their written statement they say that the village originally belonged to the Travancore Government, that during that reign, the Mannadies themselves were landlords and paid a sort of quit rent to the Travancore Government, that after the British Government assumed sovereignty over this part of the country their rights as landlords continued to subsist, that consequently when the village became a part of the Bodinaickanur Zamindari, the Zamindar could have been assigned only the right of collecting poruppuguthagai or quit rent which was all along being paid by the Mannadies first to the Travancore Government and then to the British Government. There is nothing in the documentary evidence produced before us to support this contention. The reference in Nelson's District Manual does not support the contention that the defendants were landlords. Even if they had any special rights under the Travancore regime, unless they were recognised or continued by the British Government, they are not entitled to it. Secretary of State for India v. Bai Raj Rai I.L.R. (1915) B. 625 On the other hand there are two unimpeachable documents which show that the British Government did not recognise any proprietary rights in the Mannadies. Ex. N. is of the year 1802. It gives a list of the names of the Mannadies as cultivators and regards the Government as landlords, Ex. N (1) is to the same effect. In both these documents Agamalai is mentioned as being within the Bodinaickanur Palayapat. The Jamabandi account Ex. O (1) gives the boundaries of the village and speaks of a Nattamai as the lessee of the village. ' Apparently the village was not given to the Bodinaickanur Zamindars until the year 1834. In Ex. BB which is a statement recorded by the Tahsildar in the course of an enquiry regarding boundary disputes between the Zamin village of Agamalai and the neighbouring Government village it is stated that the village belonged to the Bodinaickanur Zamindari. Apparently by this time the Government had granted the village to the zamindars.

6. The next document of importance is Ex. 6. That is a takeed from the Collector to the Tahsildar in which the latter officer is asked to inform the Zamindar ' that he himself may collect from the 5 th instalment the teervai due in respect of the aforesaid land belonging to the zamindars and that, for realising the kist due for the 4 instalments from the ryots who ploughed his said land, if the Zamindar distrains their property according to law and sends the yadast to the Huzur, the Commissioner will be ordered to put the same to auction, realise the money and pay it (to the Zamindar),' This was on the 7th of March 1836. By this time the Government had completely severed their connection with the village; they had no doubt intended to directly deal with the Mannadies because as was stated in Nelson's District Manual the Government wanted to have control over these hill-tracts as they were places of refuge for bandits. The same authority points out that the Collector, Mr. Hurdiz tried the experiment for one or two years to come to some settlement with the Mannadies and that he ultimately gave up the task and handed over the village to the Zamindars. This is all the evidence available in the case regarding the history of the village. There is practically no evidence on the side of the defendants to substantiate their contention that they were themselves the landholders. There is the unquestioned fact that the Eruvadees have recognised the Bodinaickanur Zamindars as their landlords. There is no reason for supposing that the Mannadies occupied a different position towards the Zamindar from the Eruvadees. I must hold with the Deputy Collector that it has been established that the Bodinaickanur Zamindars are the landholders.

7. The third question is as to whether the land is a ryoti land. Section 23 of the Estates Land Act enacts that where the question is whether the land is old waste or ryoti land the presumption is that it is a ryoti land. But this is a presumption which can be rebutted. The question as to whether the land in respect of which rent is claimed is ryoti land has not been considered by the Courts below and although there is this presumption in favour of the landlord I am not prepared to hold at present that these lands are ryoti lands. That is a question which will have to be considered by the Court of 1st instance.

8. The fourth question is whether the defendants are tenants. Mr. K.V. Krishnaswami Aiyar argued that where the lands are within a zamindari and they are ryoti lands if a person is in possession of them he can be proceeded against in a Revenue Court, Section 163 of the Estates Land Act provides for ejectment of a trespasser by a Civil Court. On the other hand Section 45 of the Act enables a landholder to recover from a person unlawfully in possession of ryoti land rent in the Revenue Court. When Sections 45 and 163 are read together with the explanation to Section 6, Clause 2, it is clear that a claim for rent against persons within the estate who occupy ryoti land either by legal right or otherwise must be instituted in the Revenue Court. Therefore even if it is found that the defendants are not regular tenants, the jurisdiction of the Revenue Court will not be ousted. But I think that in this case having regard to the pleadings and to the defence raised by the defendants there is hardly any room for doubt that the defendants are tenants. We asked the learned vakil for the respondents to state the exact position he contended for his clients. If we reject the interesting but unfounded theory that the Mannadies were themselves landlords, we hive to see that their status is otherwise. It was suggested rather faint-heartedly that they may have been Inamdars. There is not a scrap of paper to support this. Then it was argued that under Ex. J they acquired a permanent right to be on the land not necessarily as tenants but as hiving a sort of under-tenure on payment of a favourable quit rent.

9. Now as regards Ex. J a document on which apparently the Deputy Collector and the District Judge have relied, I may at once say that I see no reason for holding that it is not receivable in evidence. It purports to have been written by a clerk of the Collector's Office and he boldly quotes a statement of a Karnam who in the discharge of his duty compiled a list and the descriptive memoir added to the list. It was admitted that excepting for the heading which says 'that this is an account of the village taken from the statement of Chinnayya Asari, Karnam of the village,' the rest of it is a verbatim report of the Karnam himself. I think that this is receivable in evidence as being an official record compiled in the course of business, under Section 84 of the Evidence Act.

10. Now as regards the value and effect of this document the tenants contend that by this document they obtained a right for all time to come to cultivate whatever extent of land they liked and wherever they liked, and to pay only Rs. 50 per annum for such cultivation. There is no doubt the language in the document is in their favour. I may at once say that I do not agree with the contention of the learned Vakil for the appellant that this right must be confined to certain particular forest tracts and not to the cultivable portion of the village. This construction would do violence to the language of the document. The real question is whether such a comprehensive grant can convey any heritable right to the grantees. It is to be remembered that we have not any written grant. The Karnam purports to embody in this statement an oral promise said to have been made to the tenants by the Zamindar. As the grant is vague, there is no fixity of property nor fixity of tenure. That such a grant cannot confer a heritable right was laid down in Bhaskarappa v. Collector of North Canara I.L.R. (1879) B 452. Mr. Justice West points out at page 584: 'Even in the case of a grant of a definite quantity of land, but of undefined locality, two eminent lawyers Yorke and Talbot, both afterwards Lord Chancellors, said : We are of opinion that, in regard to the place where the said lands lie is not described, nor any method provided by which the same may be ascertained, such grant.... is by reason of the uncertainty thereof absolutely void in law.' Again he says ' As there must be certainty in a grant as to the area conferred, so must there be certainty as to the area, or at least as to the identity of the object occupied, if the occupation is to raise the presumption of a grant of acquiescence in definite occupation : tails enim proesumitur titulus proecessisse qualis apparet usus et possessio.' In the preseat case there is no ascertained locality; and an indefinite promise to allow the Mannadies to cultivate wherever and whatever they liked is not a grant which the law will recognise as conferring a heritable right. I must therefore hold that Ex. J did not confer a perpetual tenure in favour of the tenants. There is a further difficulty in this case and that is that even supposing that the grant was capable of conferring a permanent right, it is not available against the successors of the zamindar who granted it. It was conceded that the original grantee is dead and that there have been three generations since his time. Section 26 of the Estates Land Act provides that except in the case of grants made by a zamindar to enable the grantee to clear the jungle and to bring the waste land into cultivation, a permanent settlement of rent by a predecessor is not binding upon the successors. I do not want to say that it is not open to the defendants to show that the grant was made for the purpose mentioned in Clause 1 of Section 26, but the burden is on them to show that there was a grant of that nature and that it is binding upon the present zemindarini. But it is unnecessary for the landlord to invoke the aid of Section 26, as I have held that Exhibit J. did not confer a fixed tenure.

11. It was argued before us that even though defendants may be tenants they are not liable to pay anything more than Rs. 50 agreed to under Exhibit J. It was suggested in this Court that the defendants have acquired a limited prescriptive right to continue to hold the lands in their holding by paying an amount considerably less than what otherwise is being demanded in the present suits. There can be no question that until the present suits were brought the tenants have not been asked to pay anything like the amount no ,v claimed against them. It may be that by long payment they have acquired a right to continue that payment as argued in this Court. But that would not oust the jurisdiction of the Revenue Court. I express no opinion on the amount of rant payable by the tenants or on the question of prescription raised.

12. My conclusion is that the Revenue Court has jurisdiction to hear and determine these suits. I must therefore reverse the decrees of the court below and remit the case to the court of first instance to determine whether the land in respect of which rent is claimed is ryoti land, and what is the amount of rent payable by each of the tenants in respect of the lands in his possession.

13. It was rightly conceded before us that if these defendants are tenants, the mere fact that for a long number of years they have not paid any rent, will not bar the right of the landlord to recover what he considers to be reasonable rent. Really no question of limitation can arise under the circumstances excepting it be in respect of the particular sums claimed in the suits.

14. The costs hitherto incurred will be provided for in the revised decree.

15. In disposing of the cases the right said to have been conceded in the courts below and recorded in paragraph 41 of the Deputy Collector's judgment, will have to be borne in mind. As regards the vakils' fee in this court, we award Rs. 500 and direct that it be distributed if costs are awarded against them or in their favour, among the tenants. The costs of printing will be similarly distributed.

Napier, J.

16. I agree. The District Judge was undoubtedly in error in supposing that the copy of the sannad had not been properly exhibited in the case. I am satisfied that by consent of parties the printed copy was put on the file instead of the original. It is not suggested to us that it is not a correct copy, and indeed it must be so being a print made for the purpose of an appeal to the Privy Council. Even if the District Judge had been right, he should not in my opinion have dealt with the case without giving the plaintiff an opportunity of producing the original sannad. Where there has been a bona fide mistaken belief that a document has been properly proved and where that document is of fundamental importance for the decision of the question at issue, between the parties, an appellate court should always give the party an opportunity of producing the proper evidence. The District Judge has, however, considered the case on the assumption that the copy is a true one, and has decided that, although the village in question is within the ambit of the Zamindari, the zamindar is not a landholder in respect of it within the meaning of Section 3(5) of the Estates Land Act and that the defendants who hold possession are not ryots within the meaning of Sub-section 15 of the same section. He has accepted the theory of original tenure of this village and of its dealings by the British Government which, I think, is not supported by the evidence. He considers it proved that this village was not originally a part of the zamindari but belonged to the defendant's ancestors and that, therefore, the inclusion of it in the terms of the sannad could not affect their vested rights. During the argument on appeal the claim of the defendants was put in two ways, one on the lines of the judgment of the District Court and the other on the theory of a perpetual grant from the zamindar. I agree with my learned brother that neither of these contentions has been made out. There is nothing in my opinion, in the information gathered from the District Manuaf of Madura to support this theory of an original grant to the defendants; and whatever may have been their rights under previous Government, there can be no question that at the time of the cession Government dealt with this village as being at its own disposal unfettered by any previous grants. It appears from the District Manual that the Collector recommended the retention of this village in the hands of Government for the time being as it was situated in the hills and was occupied by lawless persons who required close observation. This proposal was accepted by the Board of Revenue who agreed with the Collector that the hill villages must-be kept under Sarkar management. In pursuance of this policy the Collector fixed the rent payable for the village at 475 pans by Jamabandi in 1802, but no period is mentioned in the document Ex. O evidencing this transaction and it is obviously a settlement for one year only. It is clear that this temporary arrangement continued for a number of years but was subsequently put an end to.

17. Exhibit VI dated the 7th March 1836 is an entry in the book containing the orders of the Collector of the Madura District. It is an instruction to the Tahsildar to inform the zamindar that he might collect teerwai from certain lands in the Agamalai village as those lands were comprised in his Agamalai village and not in the adjacent Tenkarai Government village. It recites that there had been a dispute between the Bodinaickanur Zamindar and the Government with regard to the boundary between the two villages which dispute had terminated in favour of the zamindar. And we have in Ex. BB the evidence of a witness called during that boundary dispute to prove the true boundary between the villages. It appears in the form of an attakshi given on the 1st September 1834, and the witness deposed that the land in question was in the village of Agamalai attached to the Bodinaickanur zamindari. There can be no doubt therefore that sometime before 1834 the Government had decided no longer to retain possession of this village but had granted it to the Bodinaickanur Zamindar. This grant was subsequently made permanent by the sannad of 1880, I am constrained therefore to differ from the District Judge in his conclusion on this point.

18. The next line of argument is that there had been a perpetual grant of the ownership of the village to the ryots proved by the statement of the Karnam in Exhibit J. I agree with my learned brother that this document is receivable in evidence under Section 34 of the Evidence Act. The statement is as follows : ' Coming to know that the other ryots were not able to pay poruppu-guttagai the kandetha poruppuguttagai was fixed for all time at Rs. 50 per annum, as per the oral orders of the late zamindar in fasli 61 (1852), whatever be the extent of land cultivated and wherever be the place cultivated by these ryots and the said ryots had to pay the same in the zamindar's cutcherry and it was not included in the village Jamabandi. No documents have been secured in writing regarding the said lease.' The contention for the defendant is that they thereby became the landholders, they were not tenants within the meaning of Clause 15, Section 3. With regard to the argument that they were the landholders by virtue of being 'persons owning an estate or part thereof,' I agree with my learned brother that this statement by the Karnam does not prove a grant of title to defendant's ancestors. The village is a forest tract and the cultivation is Kumati. All that the zamindar purported to do was to permit the ryots to cultivate in this peculiar manner such land as they required at a fixed rent of Rs. 50. It is admitted that in the same area there are, and have been for a great many years, a number of tenants, not descendants of the original ryots, who are known as Erewadees, and a number of grants on darkast to such persons by the manager of the zamindari during the minority of one of the zamindars have been put in (vide Exhibit VII series), and there is a mass of other evidence showing the same thing which is not disputed in this case. The existence of these other tenants made it impossible to hold that the zamindar ever purported to make a grant of ownership of any definite portion of the tract. It is clear, therefore, that the defendants are not landholders. They contend that they are not tenants as it is not shown that they hold for the purpose of agriculture ryoti land in an estate on condition of paying rent to the landholder. It is not necessary at this stage to decide the questions raised on this point. Land in a zamindari which is not excepted under clauses a, b and c of sub-sec. 16 of Section 3 is ryoti land and 8, 26 raises a presumption in favour of the zamindari. That question is one which will have to be decided. If it is found that the land in question is ryoti land it will, in my opinion, be difficult for the defendants to make out that they are not ryots. The contention has been raised before us that their liability being limited to pay Rs. 50 a year that is not rent within the meaning of the Act because it cannot be increased. During the argument I asked for any authority for this proposition or for any case in which it had been held that persons holding under a zamindar in this manner who were not land-holders themselves within the meaning of Section 3(5) were still not ryots within the meaning of Sub-section 15 and no such authority was brought to my notice. It is quite open to question whether the right to cultivate as much land as they required at a fixed rental of Rs. 50 is still binding on the estate. It may be that the defendants can show that under the provisions of Section 26, Clause (I) they are entitled to pay only this fixed rent, but it rests on them to show this, if such rent is found to be lower than the rent payable upon land of similar description in the neighbourhood (vide Section 26(3).

19. In the result I agree with my learned brother in reversing the decrees of the Lower Appellate Court and remitting the cases to the Court of First Instance to determine whether the land is ryoti land and what is the amount of rent payable by each of the tenants in respect of the lands in his possession.


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