1. The Subordinate Judge has discussed the evidence at some length and in arriving at a finding he has allowed himself, not unnaturally, to be influenced by the decisions of this Court laying down that the presumption in inam grants is that it is the melvaram alone that is granted, The decisions he refers to have since been overruled by the Judicial Committee: vide Suryanarayana v. Patanna 48 Ind. Cas. 689 : (1919) M.W.N. 463 and Upadrashta Venkata Satrulu v. Divi Seetharamudu 61 Ind Cas. 304 . We are, therefore, unable to accept his finding. We must ask the Subordinate Judge to return a fresh finding on Issues Nos. 3 and 4, in the light of the observations contained in the judgments of the Judicial Commit tee. No fresh evidence will be taken. Finding is to be submitted within six weeks and seven days will be allowed for filing objections.
2. In compliance with the order contained in the above judgment, the Additional Temporary Subordinate Judge of Guntur submitted the following.
3. Finding--As per remand order, I submit findings on the following Issues Nos. 3 and 4:
(3) Whether the plaintiffs are entitled to eject the defendants from the suit land.
(4) Whether the defendants have occupancy rights in the suit land.
2. Issue No. 3 relates to plaintiffs' right to eject the defendants from suit land and Issue No. 4 to defendants' alleged rights of occupancy in the said land.
3. Suit land is a minor inam granted as serva dumbala, free of tax, to one Elavarti Koverlu Acharlu by a Zemindarni of Chilakalurpet. The original sanad granting the inam has not been filed. According to the decisions of the Judicial Committee in Suryanarayana v. Pafanna 48 Ind. Cas. 689 : 29 C.L.J. 153 and Upadrathta Venkata Sastrulu v. Divi Seetharamudu 61 Ind Cas. 304 , sited in the order of remand, there is no presumption in inam grants that it is the melvaram alone that is granted. As stated in page 45 Page of 37 M.L.J.--[Ed] of the latter case, there is no such presumption that the land does not include the kudivaram and that each case must be judged on its own fasts 'and in order to ascertain the effect of the grant in the present case resort must be had to the terms of the grant itself and to the whole circumstances so far as they can now be ascertained.' When the case same on for arguments for the findings, unfortunately the appellants were unrepresented, as they did nor appear by Pleader or in person, though the respondents were represented by their Vakil, who argued for them. It has to be seen on all the fasts and circumstances of this case what the landlord and the tenants have proved, in 'respect of their respective pleas on Issues Nos. 3 and 4.
4. The facts established in this case have been set out in detail in paragraphs 4 and 5 of the judgment, dated 3rd August 1918. In the present ease, the original sanad granting the inam has not been filed. Lease Exhibit A, dated 1818, shows that even to long ago, the suit land was leased to tenants. There is no reliable evidence that ever since the landlords have been cultivating the lands. On the other hand, the later leases, Exhibits A1, dated 1853, A2, dated 1874, and A3, dated 1883, show that the suit land was being leased out and as shown in paragraph 4 of the former judgment, defendants' family have been in continuous possession of suit inam for over 50 years at least, since Exhibit A1, dated 1853, and none of those leases contains any clause for surrender of the land by the end of the lease period. On the other hand, Exhibit B shows that in 1603, when a prior inamdar made a demand on the tenants asking them to take fresh Cowle by four days, she stated that on default she would collect rent of the land according to seri, but made no claim that she would eject them. Respondents urge she would have claimed eviction, if the landlords had the right to eject. These are the several circumstances on which the tenants rely in support of their alleged right of occupancy to suit land. The only circumstance in favour of the appellants is that the rent has not been uniform but varying. But, as shown in paragraph 5, this variation has not always been in favour of the landlord. Respondents plead that this single circumstance would not prove the landlord's right to eject.
5. Under the above circumstances, on Issue No. 3, I find that the plaintiffs have not proved their right to eject the defendants from the suit land, and on Issue No. 4 that defendants have established their occupancy rights in the suit land.
4. This second appeal same on for final hearing on the 19th and 22nd October 1920 after the return of the findings of the lower Appellate Court.
5. Messrs. P. Narayanamurthy and B. Somaya, for the Appellants.--The plaintiffs are entitled to eject the defendants on the strength of the ryotwari pattah issued by the Government. The effect of the resumption is that, the occupancy rights of the tenants have been wiped out. The owner or landlord has the right to evict tenants as in ryotwari lands. Subramania Ayyar v. Onnappa Goundan 61 Ind. Cas. 697.
6. Mr. V. Ramadoss, for the Respondents.--The tenants had acquired occupancy rights at any rate from 1818, and up to the date of the issue of the ryotwari pattah in 1912, they continued to enjoy such rights. The Government only resumed the right of the inamdar. The tenants' rights are not affected. That right was not resumed by the Government. The judgments in Subromania Ayyar v. Onnappa Goundan 61 Ind. Cas. 697 do not lay down broadly that the issue of a ryotwari pattah in all cases extinguishes occupancy rights.
7. We accept the finding. In effect it somes to this, the inam was granted before 1800 by a Zemindar: it was a perpetual grant: whether there were tenants on the land at the time of the grant is not dear; bat that there tan hardly be any doubt that as early as 1818, the land was in the occupancy of tenants, and from 1853 of the present defendants.
8. Further, on the facts stated by the Subordinate Judge and on his conclusions, we draw the inference that before the Inam Commissioner issued Exhibit F in 1860, the tenants had acquired a right of occupancy. The Subordinate Judge holds that they continued to enjoy the right down to the year 1912, when the Government granted a ryotwari pattah to the plaintiff in respect of the land. It should be stated that in Exhibit F issued by the Inam Commissioner, there was a clause to this effect:
This inam is tax free, and confirmed for two lives only, but it is not otherwise transferable and on the expiration of the limited term above mentioned it will lapse to the State.
9. On the expiry of the two lives without direst lineal descendants, the Government issued the ryotwari pattah in favour of the plaintiff, who was the nearest reversioner to the last male holder; we are clear that the plaintiff should not be regarded as a stranger. The grant to him has the same effect as if it were made to the last male-holder.
10. Now the question is whether the plaintiff is entitled to eject the defendants. The argument strongly pressed before us related to the effect of the grant of the ryotwari pattah by Government. Reliance was placed on the judgment of Sadasiva Aiyar, J. in Second Appeals Nos. 1473 to 1475 of 1917 [Subramania Ayyar v. Onnappa Goundan 61 Ind. Cas. 697, for the proposition that the grant of the ryotwari pattah put an end to the occupancy right of the defendant. Before examining the case cited, we shall consider the principle underlying this proposition.
11. There can be no doubt that the right which an occupancy ryot has is an interest in property. If that is so, ordinarily that right cannot be put an end to by a person holding a co ordinate interest in that property, or by those who acquire or resume such right. Neither the person to whom the right of the landlord passes, nor the person who acquires the tenant's right, can voluntarily terminate the right of the other, nor the fact that the Government standing in the shoes of the landlord purported to grant a ryotwari pattah can make any difference, What the Government resumed and could have resumed is only the right of the inamdnr. They had given him the option in 1860, to convert the inam into a free-hold. In case he failed to exercise the option, they promised as a matter of grace to continue the inam to two more lives. Neither the act of resumption nor the promise to continue the inam for two lives affects in any way the rights of the tenants. The Government never purported to resume that right. By Act VIII of 1668, the Government removed the misconception which was widely entertained that the grant of an inam pattah by the Government affected the rights of tenants or of third parties. That declaration of policy is equally applicable to the present case and is in accordance with the first principles of jurisprudence. In exercising the right of resumption as against a part-owner of a land, the resumer cannot interfere with the rights of the other part-owner. In continuing as a matter of grace the inam for two more lives and in subsequently resuming the inam, the Government could not and did not terminate or resume the rights possessed by the tenants.
12. Now as regards the decision quoted, Mr. Justice Spencer, the other learned Judge, based his conclusion on facts. Sadasiva Aiyar, J., found that the tenants were not on the land when the grant was made, but that they acquired rights of occupancy subsequently. There may be cases where the acquisition by prescription of rights of occupancy will be terminated by the resumption of the inam. For example, if the grant was for a fixed period or for a specified life or lives, then the acquisition of an adverse interest in the property may not affect the right of the grantor who is entitled to the property on the termination of the life or at the end of the period, The intermediate acquisition of prescriptive rights could not prejudice his paramount rights. Examples of this kind are to be found in the acquisition by prescription against widows and other life-estate owners, Swaminatha Mudali v. Saravana Mudali 40 Ind. Cas. 581 is an illustration in point. In that case, there was a grant for 99 years. It was held that the acquisition of occupancy rights during that period did not affect the rights of the Government, when it sought to resume the land at the end of the period. This case does not support the proposition for which Sadasiva Aiyar, J., quoted it, Hattikudur Narain Rao v. Andar Sayad Abbas Sahib 28 M.L.J. 44, another of the cases which the learned Judge relied on, proceeded on the principle that the provisions of Section 116 of the Evidence Act can in certain cases be also applied conversely. We do not think that Ammu v. Ramakishna Sastri 1 Ind. Dec. (N.S.) 429 and Subbaraya v. Krishnappa 12 M. 422 enunciate any principle derogatory of the rights of persons against whom no resumption was in terms made or indicated, Therefore, if Sadasiva Aiyar, J, intended to lay down that in all cases of prescription, even when the owner of the property in respect of which the adverse holding takes effect is the absolute grantee of the inam, and that in all cases, where there is a resumption of the inam by Government and the issue of a ryotwari pattah, the rights of the tenants are wiped out, we are unable respectfully to occept the proposition.
13. Moreover, in the recent Privy Council decision in Seturatnam Aiyar v. Venkatachala Goundan 56 Ind. Cas. 117 their Lordships of the Judicial Committee held that it is possible to acquire even against a ryotwari pattadar rights of occupancy, It, therefore, does not necessarily follow that the Government by granting such a pattah intended to put an end to the rights of tenants already existing.
14. We are of opinion that the fact that the plaintiff obtained from Government a ryotwari pattah did not enable him to eject the defendants. In this view, the second appeal fails and is dismissed with costs.