1. These appeals arise out of suits brought by Rajah Parthasarathi Appa Rao, zamindar of one-third share of the zamindari of Nidadavolu. All the suit villages are situate in the Amberipetta pargana of the zamindari. The plaintiff files these suits for a declaration that the Government is not entitled to enfranchise certain service inams in these villages on the ground that they are included in the assets of the zamindari and not excluded from them at the time of the Permanent Settlement and that the right of resumption is in the zamindar and not in the Government. So far as the inamdars are concerned, the plaintiff alleges that he is entitled to resume the lands, whenever their services are not required and that he gave notice to them to quit the suit lands. Similar questions have arisen before us in connexion with a number of zamindaries in the Kistna District. Those cases are S. As. Nos. 648 to 832, 974 to 1058 of 1927, and other connected second appeals, and the questions of law arising in those cases were elaborately discussed by us in our judgments in those second appeals and I will have to refer in the course of this judgment to our earlier judgment. The Subordinate Judge of Ellore who tried the suits dismissed them and the plaintiff appeals.
2. Two important questions arise in suits of this kind: (a) On whom does the burden of proof lie? Is it for the zamindar to prove that the suit lands were included in the assets of the zamindari at the time of the Permanent Settlement; or is there a prima facie presumption that the lands being within the ambit of the zamindari are included in the assets of the zamindari; or is it for the Government to prove that they were excluded from the assets of the zamindari at the time of the Settlement? On this question it is unnecessary for me to repeat what I have said in my former judgment, but as that judgment has not been reported, it may be convenient to summarise what I have said therein. In the printed copy of that judgment I discussed this matter at pp.13 to 16. I there showed that, though at first sight it looks as if the decision of the Judicial Committee in Secretary of State v. Kirtibas Bhupati 1914 42 Cal 710 is in favour of the zamindar and to throw the burden of proof upon the Government, that case relates to Sukinda and Madhupur estates in Orissa and it somewhat resembles the decision in Secretary of State v. Raja of Venkatagiri 1922 44 Mad 864, which relates to Venkatagiri and connected Zamindaries in this Presidency. These estates have a special history of their own, and the rule of presumption in respect of all zamindaries cannot be inferred from these cases. The general rule is laid down in the decision in Secretary of State v. Jyoti Prashad Singh 1926 53 Cal 533. According to that decision it is for the zamindar to show that the suit lands were included within the zamindari in spite of the fact that they are within the geographical limits of the zamindari. Accordingly I held that the burden of proof is in such cases always on the zamindar. (b) Question of limitation.-This question was discussed by me at pp. 21 to 27 of that judgment. There I held, (1) that in a suit by a zamindar against Government for a declaration that an enfranchisement by the Government is not valid and binding on the zamindar the period to be applied is not 12 years. In this matter I differed from an unreported judgment of Wallace and Thiruvenkatachariar, JJ., in Appeal No. 355 of 1922; (2) in general Article 120 will apply to such suits; (3) where the Zamindar was a consenting party to the inam proceedings and raised no objection, Article 14 may apply; but where the Zamindar had not appeared before the Inam Commissioner and had taken no part in the proceedings and files a suit on the footing that the proceedings are ultra vires then the effect of the order of the Inam Commissioner is not such as to make it necessary for the Zamindar to set it aside, and therefore Article 14 does not apply to such cases. A further question was discussed as to when exactly the cause of action begins, assuming that the period of limitation is six years under Article 120. I held that where the Zamindar took no part in the proceedings and studiously kept himself aloof and afterwards files a suit for a declaration on the ground that the proceedings are ultra vires, the cause of action does not actually arise until he is injuriously affected by the enfranchisement, i.e., until there is a definite refusal by the inamdars to perform the services for which the inams were originally granted. This portion of my judgment is at pp. 21 to 23. I made observations to the effect that, even if quit-rent is collected by the Government from the inamdars directly or indirectly through the Zamindar giving 10 per cent to the Zamindar as commission and in the meanwhile the inamdars continued to render service to the Zamindar, this does not necessarily compel the Zamindar to sue though, if he likes he may sue, i.e., it does not give rise to a compulsory cause of action for a declaratory suit though it may afford an optional cause of action for a declaratory suit. A compulsory cause of action arises when for the first time he is injuriously affected by the enfranchisement.
3. Once such a compulsory cause of action arises, a suit brought more than six years from that date would be barred: Ambu Nayar v. Secretary of State 1924 47 Mad 572. In the last case, it was held that one cannot evade limitation by making a second application to the Government and bringing a suit within six years from the rejection of the second application. Here I may mention that in most of the cases with which we were concerned in those second appeals the Zamindar did not appear before the Inam Commissioner. The only exceptions to the statement were the Mokhasa of Kondaparva and the Gampalagudam estate. In the case of Kondaparva the Mokhasadar was present and agreed to the enfranchisement. I held that he was barred under Article 14: (see p. 27). As to Gampalagudam estate except as to one village (Amumalalanka) the Zamindar agreed to the lands being enfranchised (p. 27 of the former judgment) and I held that the suits were barred under Article 14 also. In all the other cases I held that Article 14 did not apply and Article 120 applied. Now in the suits before us it is unnecessary to discuss the question whether Article 14 applies because in the view I am taking, even if Article 120 applied, except in the case of three villages all the suits would be barred by limitation. What happened in these cases is this. The notification by the Government was on 1st October 1909, and the date fixed under Section 19 of Act 2 of 1894 was 1st July 1910. The Zamindari was then the subject of a litigation. The Zamindar appellant Rajah Parthasarathi Appa Rao filed a suit for the recovery of the one-third share of the Zamindari. The matter went up to the Privy Council where the Zamindar finally obtained a decree for one-third share: vide Narasimha Appa Row v. Parthasarathy Appa Row (1913) 37 Mad 199. It is admitted before us that during all this litigation the estate was being managed by a Receiver. The Receivership terminated in 1916 and the plaintiff's share of the estate was made over to him in the same year : vide the deposition of P.W. 1. When the enfranchisement notice was given to the Receiver, the Receiver actually sent his tenadar to appear before the Inam Commissioner and make a statement. In most of the cases in which he appeared he had no objection to the enfranchisement but wanted the kattubadi on the inams to be excluded from enfranchisement. Afterwards no document was produced to make out the case for exclusion of kattubadi with the result that even kattubadi was not excluded. (The remaining portion of His Lordship's judgment is not necessary for purposes of this report.)
Madhavan Nair, J.
4. On the general question of 'Burden of Proof and Limitation' arising in cases of this description, I have already expressed my opinion in detail in the separate but concurring judgment which I delivered in Second Appeals Nos. 648 to 832 and the connected second appeals. The arguments now addressed to us have not persuaded me in altering the views therein expressed. In the appeals before us, I agree with my learned brother on the question of limitation regarding the applicability of Article 120, Lim. Act, to the facts of the case and also on the merits, and have nothing to add.