1. This is an appeal from the judgment of the District Judge of Cuddapah in a suit brought by the plaintiffs, who were the registered holders of the Karnam's office in this particular Inam Village, to recover from the Shrotriemdars certain lands which, they contend, were emoluments of the Karnam's office. The District Judge has found, and his finding has not been and could not be seriously disputed, that these lands were Karnam's Inam and that they were excluded from the Shrotriem lands when the Shrotriem Inam was confirmed by the Inam Commission. Prima facie, the title to these lands was undoubtedly before the enfranchise merit in the holders of the Karnam's office for the time being. The Karnam's office was a hereditary office, and these lands were annexed to the office for its emoluments and the holders of the office for the time being were entitled to them. The District Judge has, however, found in this casa that the plaintiffs' suit is barred by limitation on the ground that these lands have, for a very long time, been in possession of the Shrotriemdars. On the other side, reliance is placed upon the fact that the Shrotriemdars have all along been making payments of Rs. 25 annually to the Karnam in office, and the Shrotriemdars have not proved by affirmative evidence that they were trespassers and in possession as such. Having regard to the fact that this was a Karnam's Inam and to the annual payments to the Karnam for the time being and to the fact that they might very well have got into possession by some arrangement as to management owing to the incapacity of the Karnam, we think that the District Judge, has placed the onus on the wrong side, and that the onus is strongly upon the Shrotriemdars to show that their possession was not permissive but adverse and they failed to discharge that onus., It is not necessary to rely on the oral evidence on either side which, in a case like this, is often exceedingly inconclusive. There is a document, Exhibit PI, which throws considerable light upon this case. It is an order by the Settlement Officer for the enfranchisement of the Karnam's Inam, and it affords evidence of certain transactions of which other evidence is not forthcoming. It is found by the Settlement Officer that, for 21 years from 1877 to 1898, Narasinga Row was the Karnam, that, under Regulation VI of 1831, he sued the Shrotriemdars for possession of these very lands and that he obtained a consent judgment in a summary suit in a Revenue Court. It is said that this was never executed because all the Shrotriemdars were not parties, but the fact that many of them consented to the restoration of the lands goes far to support the case for the plaintiffs that their occupation was permissive. We have been referred to Exhibits K and L, but they do not help us. Exhibit K is simply a takid from the Tahsildar to the Shrotriemdars telling them to see that the Karnam, who had acted during the suspension of the holder of the office, should be paid by the principal Karnam for his work out of the Inam Taram. Similarly Exhibit L is a receipt given by the acting Karnam to the Karnam for such a payment. It is said on the other side that it is unlikely, if there had really been a lease and if the possession had been permissive, the Shrotriemdars would have been allowed to continue in possession for such a small payment as Rs. 25 annually. There is no doubt some force in this contention,, but the facts of the case are very obscure, and, as we have said, we do not think that this is sufficient to rebut the inference which arises from some of the outstanding facts that the detendants' possession was permissive.
2. The other question is that of misjoinder or non joinder. It is said that this suit ought to have been brought by the mother of the plaintiffs, who was the daughter of Narasinga Bow, the last Karnam. That is a complete misconception. The office under the Madras Regulation II of 1894 devolves upon the next male heirs. Therefore this woman, the plaintiffs' mother, never succeeded to the office At the time of the enfranchisement, the plaintiffs were minors, but the office had been registered in their names, omitting their elder brother, who was entitled to some other Karnam's office and was held not capable of holding two Karnam's offices at the same time. The plaintiffs were minors and the effect of the registry was only to keep alive their claims to the office as soon as either of them became capable of filling it. In these on concomitances the Karnam's Inam was enfranchised, but it was in their favour. As we have said, up to the time of enfranchisement, the lands were annexed to the Karnam's office and enjoyed by the holder of the office for the time being, who was the only person who had any right to them. In a Full Bench case in Pingala Lakshmipati v. bommireddipalli Chalamayya 17 M. L, J. 101. overruling, several other oases, and following the judgment of Bhashyam Aiyangar, J., in Gunnaryan v. Kamakchi Ayyar 26 M. 339, it was held that 'the enfranchisement diaannexes the Inam from the office, converts it into ordinary property and releases the reversionary rights of the Crown in the Inam, but does not confer on the persons named in the title deed any right in derogation of those possessed by other persons in the Inam at the time of the enfranchisement.' Applying that to this case, the result is that the land which had been an endowment of a hereditary office came to be held by the family which was entitled to the office. The registered holders of the Inam were plaintiffs and there can he no doubt that they would have been entitled to sue to recover the Inam before the enfranchisement. We do not think that they ceased by virtue of the enfranchisement to represent the Inam for the purpose of recovering it. As we hold that the possession was permissive on the date of the suit, there will be no question of limitation. As regards the question of mesne profits, Mr. Venkatarama Aiyar has pointed out that, on the date of the enfranchisement, the plaintiffs' elder brother was a major and would have been entitled to sue to recover the Inam and also to recover mesne profits, and that so far as mesne profits are concerned, time should be considered to have run as against him and against the plaintiffs also, and, therefore, their claim for mesne profits must be considered to be barred except as to three years before the suit. We accordingly give judgment for possession with mesne profits for three years before suit and subsequent mesne profits until delivery of possession.
3. As there is no finding on the 5th issue we have decided to call for a finding on that issue on the evidence on record, and also for a finding as to the rate of mesne profits as to which fresh evidence may be taken. Findings should be submitted in two months. Seven days are allowed for objections.
4. In compliance with the above order in the judgment, the District Judge of Cuddapah submitted the following
1. I am directed to record a finding on the evidence on record on the fifth issue: 'Whether the plaintiffs are entitled to the madava rights claimed in the plaint schedule for the plaint lands or any of them' and also on the issue 'What is the rate of mesne profits to which the plaintiffs are entitled per year.' On this issue the parties were allowed to adduce farther evidence.
2. The issue as to mesne profits can be easily disposed of. Plaintiff witness No. 5, the 2nd plaintiff's uncle, says that during the three years before suit and the three years after the institution of the suit, the net income of the lands has been Ra. 75-0-0 per annum. The 1st defendant, in the witness box, says the net income has been about Us. 70 to 75, not more than Rs. 75. There is no more evidence. I find that the rate of mesne profits to which the plaintiffs are entitled per year is Rs. 75.
3. The other question is not so easy. The madava right is claimed only for item No. 8, i e., wet Paimash number 17. The plaintiffs aver that this land is entitled to irrigation, under the Dasabandham channel. The defendants now admit this, though nothing is said about this in the written statements. But the plaintiffs in their schedule have described the channel as No. 3 channel and the defendants in their written statements deny that plaintiffs are entitled to any right in that channel, and some of the defendants specifically say that No. 3 channel is a private channel belonging to the Shrotriemdar. Defendants Nos. 6 and 7 say that there are two channels for the wet Inams, namely, Dasabandham channel and their own channel, and the Dasabandham channel ceased to flow, and, therefore, the defendants alone are entitled to the private channel.
4. The question, therefore, seems to be whether the No. 3 channel is a private channel of the Shrotriemdars or whether it is the Dasabandham channel.
5. I do not think the documentary evidence throws much light en this question. It shows that the land is double crop wet, but it does not show that the source of irrigation is No. 3 channel. Exhibit I requires some consideration. This is a maintenance deed and it shows that Vengamagari Madi, the Paimash number in question, is under No. 3 channel. But the defendants point out that the land referred to in Exhibit I is dry land and they say that the grant of the madava right in that case was a mere matter of grace in favour of a relation. They also point out that the source of irrigation for the wet land referred to in Exhibit I is the river channel and they want me, therefore to infer that the river channel is the Dasabandham channel as distinct from the No. 3 channel. But I do not think it is safe to draw that inference. It cannot be presumed that the river channel is the Dasabandham channel.
6. The defendants rely upon Exhibit XIV, an endorsement given by the Tahsildar stating that the Dasabandham channel is in a ruined condition, but that endorsement is scarcely sufficient by itself. The facts contained therein should be properly proved. Moreover, that Dasabandham channel is one that feeds the blacksmith Inam lands and may be a different channel.
7. It is necessary, therefore, to examine the oral evidence to determine the question. The parties do not seem to have made a real effort to thresh out this question properly. P. W. No. 1 in examination in chief says that the Dasabandham channel irrigates the wetland. In cross-examination he says that this channel is otherwise known as No. 3 channel. He is the only witness on the side of the plaintiffs who speaks about this matter.
8. Defendants' witness No. 1 is 1st defendant. He says that the channel which now runs through the Shrotriem is their own channel and not a Dasabandham channel. In November 1903 the Dasabandham channel, he says, became ruined and silted up on account of floods and is not in use now. Then he refers to Exhibit XIV. With regard to Exhibit I he says that number 77 therein is a mistake for 73.
9. In cross-examination he says that the Shrotriemdars were given Dasabandham Inam by the Sircar and they are still enjoying that Inam which was granted for keeping the channel in good repair He says the Sircar gave them notice to repair the channel and they spent about Rs. 2,000 but the repairs are not complete, but the Inam has not been resumed. He says the Dasabandham channel is in the river itself and the private channel starts from the bank of the river, and that is how it was not silted up at the time of the flood.
10. There is no other evidence on this subject.
11. The plaintiffs claim madava right in No. 3 channel only for item No. 8. They assert that No. 3 channel is the same as Dasabandham channel. Exhibits I, IX, X, XI show that in connection with the irrigation of Vengamagari Madi, which is partly wet and partly dry cultivated wet, three channels are mentioned, t. e., No. 3 channel, a river channel, and a Dasabandham channel. Bat considering the unsatisfactory nature of the evidence it is not possible to say if these are three separate channels or branches of the same channel or the same channel under different names. P. W. No. 1 swears that the Dasabandham channel is otherwise known as the 'third channel.' The 1st defendant tries to meet this by saying that the Dasabandham channel is out of repair, but I do not think he has proved it properly. The alleged notices issued by Government have not been produced. Under these circumstances, I find that plaintiffs are entitled to the madava right in No. 3 channel as claimed in the plaint for item No. 8 alone.
12. This appeal coming on for final hearing after the return of the finding of the lower Court upon the issues referred by this Court for trial, the Court delivered the following
13. We accept the finding and allow mesne profits at Rs. 75 perannum, and declare that plaintiff is entitled to madava right as regards item No. 8 from channel No. 3. These provisions will be incorporated in our decree.
14. Respondents will pay the costs throughput.