1. The facts of the case, so far as they are relevant to the present second appeal, are very simple. The plaintiff is the proprietor of Devabhumi village. His suit is for possession of the suit lands and for arrears of rent. He alleged that the lands formed the emoluments of a barber's service inam, that the Government resumed the inam in 1916, and granted him a patta and that when the defendant refused to pay the rent demanded of him he gave him a notice to quit and filed this suit. The defendant, amongst other things, contended that the suit lands did not form part of the barber's service inam and that the plaintiff had on no account any right to eject him. Various issues were raised in the case but the main issue was:
Whether the plaintiff has the right to eject the defendant.
2. The District Munsif found that the lands formed part of the barber's service inam and that the plaintiff proved his right to eject the defendant. His conclusion on the latter point was mainly based on the ground that in the case of inam grants, the grant was of both the varams and that the defendant had adduced no evidence to show that the inam consisted only of the melvaram right. He further supported his conclusion by referring to the fact that
the Government also appeared to have dealt with the land as inam
in its resumption proceedings. He there fore came to the conclusion that the Government has a right to resume the grant and give patta to the plaintiff. A decree was, therefore, given in plaintiff's favour.
3. In appeal the learned Subordinate Judge held that in law there is no presumption that an inam grant is a grant of both the varams, that each case has to be judged on its merits and that in this case it was not proved by the plaintiff that the original grant was by one who owned the kudivaram right and that the kudivaram right was included in the grant. He, therefore, held that the plaintiff was not entitled to a decree. The learned Subordinate Judge also held that the Government's resumption proceedings will not in any way bind the defendant. The District Munsif's decree so far as it related to the recovery of possession was, therefore, reversed.
4. In second appeal the plaintiff-appellant first argued that the resumption proceedings of the Government in 1916 obviously related to a resumption of both the varams and that under Section 3, Reg. 6, 1831 and the Board's Standing Order 55, 01. 3, it is not now open to the Court to reopen the question and find out the nature of the original grant. We are not satisfied that these provisions in any way support the appellant's contention. No authority has been cited in justification of the argument. The defendant was not a party to the resumption proceedings. There is nothing to show, as pointed out by the learned Subordinate Judge, that
either the resumption or the grant of patta was made after notice to the defendant.
5. It appears to us that when the right of Government to resume an inam is questioned, the Government or its assignees will have to substantiate the right. The real question for consideration is: What is the nature of the original inam grant? Was the original grant by one who owned the kudivaram right and did the grant include the kudivaram right? According to the decisions of the Privy Council there is no presumption that an inam grant is a grant of both the varams; each case has to be decided on its facts and the merits; see Chidambara Sivaprakasa v. Veerama Reddi A. I. R. 1922P. C. 292 and since the appellant claims the right to eject, he has to prove that the kudivaram right was included in the original grant. The decision in Nainapillai Marakayar v. Ramanadan Chettiar A. I. R. 1924 P. C. 65 is inapplicable to the present case as the defendant does not admit that he came into possession of the lands as a tenant.
6. The suit lands form a pre-settlement inam. It was originally in the possession of a barber but though the lineal descendants of that barber are alive the lands have been in the possession of the defendant and his ancestors for a very long time. The defendant had been making money payments to the plaintiff, which payments, however, do not form the basis for this suit. How the defendant or his ancestors came into possession is not explained. The only evidence with regard to the nature of the grant is the gudikat account. It does not show that the land itself constituted the emoluments of the service. The learned subordinate Judge refers to the evidence regarding the nature of the grant in para. 9 of his judgment. We agree with his conclusion based on the evidence that the plaintiff has not proved that the Government has a right to resume the lands and give him a patta. The appellate Court's decree is, therefore, right.
7. We may note that the respondent before us has sought to support the lower Court's decision on other grounds also, relying on Venkata Suryanarayana v. Venku Naidu A. I. R. 1926 Mad 1155 and the defendant's adverse possession against the plaintiff for over 12 years; but, as we are of opinion that the decision of the learned Subordinate Judge, on the ground on which he has based it, is right, we did not hear his supplemental arguments. The second appeal is dismissed with costs.