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Kakarlapudi Janikiramaraju and ors. Vs. Gedala Appalaswami and ors - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1507 to 1540 of 1950
Judge
Reported inAIR1954Mad772
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100, 101 and 115; Tenancy Law; Madras Estates Land Act, 1908 - Sections 3(2); Madras Estates Land (Amendment) Act, 1945; Limitation Act, 1908 - Schedule - Articles 142 and 144
AppellantKakarlapudi Janikiramaraju and ors.
RespondentGedala Appalaswami and ors.
Appellant AdvocateP. Somasundaram and ;S. Ramamurthy, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Cases ReferredState v. Gulam Mahaboob Khan
Excerpt:
madras estates land act (i of 1908) section 3 (2) (e)-- 'village'--meaning of--same as that of 'village' in section 3 (2)(d)--absence of explanation 1 immaterial--post-settlement mokhasa lands--given in exchange for pre-settlement inams taken away by zamindar--enfranchised by inam commissioner--enfranchisement 'ultra vires'--lands continue as part of mokhasa ;the simple test in applying section 3 (2)(e) of the madras estates land act (i of 1908) is to see whether the grant of a village was of the whole village by boundaries. if so, it is a 'whole inam village' and an estate. it is now well settled that even if the grant does not include minor inams, it is none the less of a 'whole village'.;'whole inam village', 'whole village', and 'a village' have acquired a recognised technical.....1. these civil revision petitions arise out of the judgment of the learned district judge in a batch of civil miscellaneous appeals confirming the two judgments of the district munsif made in two batches of suits. the first batch of eleven suits was filed by seven sets of inamdars against different sets of defendants for ejectment and recovery of arrears of rent in respect of certain lands in kirla village. the other batch consisting of 23 suits was filed by other inamdars against the defendants therein for ejectment and recovery o rent in regard to some lands in alamanda village.among other contentions, the defendants in both the batcnes of suits pleaded that the said two villages were estates within the meaning of section 3(2)(e) of the madras estates land act (hereafter called the.....
Judgment:
1. These civil revision petitions arise out of the judgment of the learned District Judge in a batch of civil miscellaneous appeals confirming the two judgments of the District Munsif made in two batches of suits. The first batch of eleven suits was filed by seven sets of inamdars against different sets of defendants for ejectment and recovery of arrears of rent in respect of certain lands in Kirla village. The other batch consisting of 23 suits was filed by other inamdars against the defendants therein for ejectment and recovery o rent in regard to some lands in Alamanda village.

Among other contentions, the defendants in both the batcnes of suits pleaded that the said two villages were estates within the meaning of Section 3(2)(e) of the Madras Estates Land Act (hereafter called the Act), and that in any view they being parts of permanently settled zamindari, the plaintiffs were landholders within the meaning of the Act. On those pleas, they contended that the civil courts had no jurisdiction to entertain the suits. The District Munsif, and on appeal the District Judge, accepted their contentions and returned the plaints for presentation to the proper court. Hence the above revisions.

2. The facts admitted or found may be briefly stated. The lands in question formed parts of 316 acres comprised in title deed No. 1178 of Kirla village and title deed No. 1351 of Alamanda village Kakarlapudi Appalaraju, the predecessor-in-interest of the plaintiffs in both the batch of suits, owned a pre-settlement inam of approximately 28 acres in the village of Alamanda granted to him by the Raja of Vizianagaram. In 1808 the then Rajah of Vizianagaram granted the whole inam villages of Alamanda, Kirla and Sirikipalem on Mukhasa tenure to the plaintiffs' predecessor-in-interest.

In December 1813 the Raja took away the pre-settlement inam and granted to the inamdar an extent of 316 acres in exchange. Out of the said extent, 286 acres were situated in Alamanda village and 30 acres in Kirla village. One of the questions of fact raised was whether these 316 acres of land were part of the mukhesa villages granted in 1808. Both the courts found that they were carved out only out of the villages already granted in inam. The prevailing impression then was that the Raja could resume the lands at his pleasure. Indeed, whenever a Raja died and a successor stepped in, the inams were resumed and restored to the inamdars. This was effected by a kind of attachment.

At the time of the inam settlement, in spite of the strong opposition offered by the Zamindar, the said extent of 316 acres was treated as a pre-settlement inam and was confirmed to the inamdars on a quit rent of Rs. 127. Since that time, the inamdars were paying the said quit rent to Government and also a kattubadi of Rs. 300 to the Zamindar. It does not appear that there was any reduction in the kattubadi payable to the zamindar in view of the fact that the said extent of 316 acres was treated as pre-settlement. Presumably no such deduction was made and the entire kattubadi was being paid to the Zamindar.

3. On those facts the courts below held that the grant of the year 1808 was that of whole inam villages and therefore were estates within the meaning of Section 3(2)(d) of the Act. They found that the enfranchisement proceedings and issue of title deeds by the Inam Commissioner in respect of the said extent of 316 acres would not change the character of the said extent. As they formed part of the estate, the learned Judges held that notwithstanding the issue of title deeds by the Inam Commissioner, they continued to be part of the estate. They further held that the said extent being a part of a permanently settled zamindari, the plaintiffs would be landholders within the meaning of the Act, In the result they came to the conclusion that the civil court had no jurisdiction to entertain the suits.

4. Learned counsel for the petitioners raised before us the following points:

1. The zamindar did not grant in Inam the whole villages in 1808; but the grant comprised only parts of the villages.

2. The extent of 316 acres given in exchange did not form part of that grant.

3. The decision of the inam commissioner enfranchising the extent of 316 acres & issuing title deeds was binding on all the parties and not having been set aside within the prescribed time, it is not open to the tenants, inducted into possession after the Act came into force to question the same.

4. The Government acquired a right by adverse possession to the said extent and therefore it ceased to be part of the zamindari before the Act came into force.

5. At the outset we may mention that this court's revisional jurisdiction is rather limited and it is not open to us to reopen the concurrent findings of fact arrived at by the courts below. We shall therefore proceed on the basis of the facts found.

6. The argument of Mr. Vedanthachari may be summarised thus: The main part of Section 3(2)(d) of ths Act deals with the grant of the whole area of a village. The explanation to that clause introduces a fiction and says that even if a grant was not covered by the main part of the section, it would be an estate if a named village was granted, notwithstanding that it did not include certain lands in the village which had already been granted on service or other tenure or had been reserved for communal purposes. But for the explanation the main part of the section would not take in such a grant.

As the explanation was not added to Section 3(2)(e) of the Act the connotation of the words "one or more villages" in that clause would be similar to that given to the words "inam village" in the main part of Clause (d). The Supreme Court of India, it was said, defined the "inam village" in the main part of Clause (d) as an entire area of that village and, therefore, that definition would equally apply to the word "village" in Clause (e). To put it differently, though a grant of a named village is an estate within the meaning of clause (d) notwithstanding the fact that it did not include certain lands in the village already granted to others, it would not be an estate under clause (e).

7. To appreciate this argument it would be necessary to consider the decisions given on the interpretation of Clauses (e) and (d) of Section 3(2) of the Act and also the circumstances under which explanation No. 1 was added to Clause (d). The relevant provisions of the Act read as follows:

" 'Section 3(2)(d)': Any inain village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.

'Explanation (1)': Where the grant as an inam is expressed to be of a named village, the area which forms the subject-matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes.

(e) any portion consisting of one or more villages of any of tile estates specified above in Clauses (a), (b) and (c) which is held on a permanent under-tenure."

8. It is not disputed that if the grant in question was of a village within the meaning of Clause (e) it was not held on a permanent undertenure. The leading case on the question of the definition of a village is found in -- 'Narayanaswami Naidu v. Nalam Subrahmanyam', AIR 1916 Mad 263 (A). There the facts were, the zamindar of Nuzvid made a rent free grant of Venkatapuram agraharam to Bala Venkateswara Swami. But there were certain minor inams in that village which appear to be of three classes -- arcliaka inams, village service inams and dharmadhaya inams. Though it does net appear whether the grant to the temple of the village was made first or the minor inams were granted first, it was contended that inasmuch as there were minor inams in the same village, the said Venkatapuram agraharam was not a village. In dealing with that contention Wallis C. J. and Srinivasa Aiyangar J. made the following pertinent observations at page 264:

"The definition in Sub-sec. 2, Clause (d) was obviously intended to exclude from the definition of "estate" what are known as minor inams, namely particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries. The latter are known as 'whole inam villages'. The existence of 'minor inams' in whole inam villages is very common & if these inam villages do not come within the definition of 'estate' almost all the agraharam, shrotriam and mokhasa villages will be excluded. This certainly cannot have been the intention of the legislature. These minor inams are generally granted for services to. be rendered to the village or to the owner and that seems to be the nature of the minor inams in this ease. In all the documents, the temple is described and the owner of the whole village and in these circumstances the burden is upon the plaintiff to show that the grant was only of the revenue of a portion of the lands in the village and he has not put in evidence the inam register which would have supported his case if true."

9. These observations were made by the learned Judges of great experience and they stood the test of time till a different note was struck in the year 1943 by another Divisional Bench of this court in a, case arising under Section 3(2)(d) of the Act. But the definition of 'whole inam village' given in this decision has always been accepted and applied to cases arising under Section 3(2)(e). The simple test is whether the grant was of the whole village by boundaries. If so, it is an estate. On the other hand, if the grant was of a particular extent of lands in a village, it is a minor inam. In -- Lakshminarasimham v. Veerabhadra', AIR 1924 Mad 589 (B), the same principle was applied without any discussion.

The facts in that case disclose that in the year 1747 the village of Arungolanu was granted as mokhssa by the then holder of the zamindari. The village consisted of 1781.85 acres ayacut, 542.54 acres poromboke and 50 acres 91 cents minor iinams. The learned Judges assumed without any dismission that the said grant was of a whole village and an estate within the meaning of Section 3(2) (e), notwithstanding the existence of the minor inams. Chandrasekhara Aiyar J. in -- 'Seshagirl Rao v. Ramayya', AIR 1945 Mad 503 (C), held that a village was an estate within the meaning of Section 3(2)(e) though there were minor inams- The learn-ed Judge on the facts found that the grant was of the villages excluding the dharmadayam and service inams and therefore were estates within the meaning of Section 3(2) (e).

A clear and lucid exposition on the question of the definition of a "village" in Section 3(2)(e) is found in -- 'Bapiraju v. Vallayya'. AIR 1943 Mad 213 (D); the judgment of a Division Bench of this Court consisting of Horwill and Bell JJ. In that case the village of Vakapalli was granted in inam. There were certain minor inams in the village which were enfranchised by the Government as being pre-settlement inams. Though there was no direct evidence, it was assumed that the village was granted subsequent to the creation of the minor inams. It was contended that as there were pre-existing minor inams, the grant could not have been of the whole village. In dealing with the argument, the learned Judges made the following observations :

"The terms 'whole inam village', 'whole village' and 'a village' have a recognised' meaning as referring to the grant of a village in contradistinction to the grant of a minor inam. These words have therefore acquired a technical meaning and are not to be construed narrowly according to their strict etymological meaning."

The learned Judges considered the decisions cited bearing upon the construction of Section 3(2)(d) of the Act and distinguished them on their facts and then they proceeded to state:

"Even if these decisions had said much more expressly than they have that the grant of a village from which minor inams were excluded was not a grant of the whole village within the meaning of Section 3(2)(d) as amended in 1936, we should still be of opinion that as far as the interpretation of Section 3(2)(e) was concerned, there was no difference of judicial opinion. The distinction between a whole inam village and a minor inam had always been clearly borne in mind in the decisions under this sub-section; and it has never been held that merely because the grant did not include minor inams it could not have been of the whole village."

10. We respectfully agree with the observations of the learned Judges which is only a restatement of the pre-existing law which got a temporary setback in view of the recent decisions of this court. So far as Section 3(2)(e) is concerned, the law is settled and is based upon a sound principle and we do not see any reason to ignore it or to take a different view except for compelling reasons.

11. We will now proceed to consider the vicissitudes through which the interpretation of the word "village" in Section 3(2)(d) has passed. As we have already stated "whole inam village", "whole village" and "a village" have a recognised meaning, as referring to the grant of a village in contradistinction to the grant of a minor inam, and that the existence of minor inams would not in any. way make the grant of a village anytheless the grant of a whole village. It was so decided in -- 'AIR 1913 Mad 263 (A)'. That view was expressed in 1916 and it held the field till a contrary view was expressed by another Division Bench of this Court in -- 'Tula-Bandu Ademma v. Satya-dhiana Thirthaswamivaru', AIR 1943 Mad 187 (E).

It was held in that case that unless every bit of land in the village was included in the grant, the grant could not be of the village and the land granted could not. have formed an estate. That decision was followed in -- 'Suri Reddi v. Agni-hotrudu', AIR 1943 Mad 764 (P) and others. As the said decisions upset the prevailing view and caused confusion in the titles obtained on that view, the legislature intervened and added explanation (1) to Section 3(2)(d) by the Madras Estates Land (Amendment) Act II of 1945. The reasons for the amendment were stated as follows:

"Under Section 3(2)(d) of the Madras Estates Land Act, 1908, as amended by the Madras Estates Land (Third Amendment) Act, 1938, an inam village of which the grant was made, confirmed or recognised by the British Government is an estate. In a recent case the Madras High Court held that unless the grant was of a whole village it will not be an estate within the meaning of the section. In many cases although the grant was expressed to be of a village, certain small areas therein, which were already enjoyed on service tenures and the like were not included in the grant. Such villages were, however, treated as estates and the ryots therein were regarded as having acquired permanent rights of occupancy. In order to protect their rights, the Government considered that Section 3 (2)(d) should bs amended so as to make it clear that inams of the kind referred to above are estates within the meaning of that section."

It is obvious from the explanation that the amendment was intended to restore the well-settled law disturbed by the decision in -- 'AIR 1943 Mad 187 (K)'. The wording of the explanation brought out the intention of the legislature. Under the explanation, when the grant of an inam was expressed to be of a named village, it would be an estate notwithstanding that it did not include certain lands in the village which had already been granted on service or other tenure or had been reserved for communal purposes. This explanation is in accord with the definition of a "village" given in -- 'AIR 1910 Mad 263 (A)'. The explanation is a device adopted by the legislature to render the meaning of the section intelligible.

It is added to clear up difficulties or obscurities in the section; in other words, the meaning of the words "inam village" in Section 3(2)(d) is explained and made clear by explanation CD added to that clause. If so read, the cloud cast on the technical meaning all along attached to the expression "inam village" is dispelled. Under the definition of "inain village" as explained, a "named village" would be an inam village notwithstanding certain minor inams. Subsequent to the amendment, the question again came to be considered by another Division Bench of this Court in -- 'Venkanna v. Lakshmipatiraju', AIR 1946 Mad 409 (G), where the learned Judges found on the evidence that there was a subsequent grant of a part of the same village and therefore held that the first grant could not have been of the whole village.

Therefore, after the explanation, the legal position was this: The whole village could be granted either by name or by including the entire extent within the boundaries of a village. In case a named village was granted, the existence of minor inams in the village before such grant would not make it anytheless the grant of the whole village. This result would flow not by reading Explanation (1) separately from the main part of Clause 3(2)(d) taut by reason of the fact that explanation (1) declared the correctness of the preexisting law.

12. We shall now proceed to see whether the recent judgment of the Supreme Court in -- 'Dist. Board, Tanjore v. Noor Mohamed', AIR 1953 SC 445 (H) had in any way and to any extent expressed a contrary view to the aforesaid statement. Mr. Vedanthachari strongly relied upon that judgment and contended that by reason of that decision we should hold that the view expressed in -- 'AIR 194S Mad 213 (D)' was no longer good law. It would therefore be necessary to consider that case in some detail. Their Lordships were dealing with the grant of a definite extent in the village of Kunanjari in the Tanjore district. Two blocks, one a major block and the other a minor block were allotted to two different persons under two Separate grants. The boundaries of this village included both the areas. The village of Kunanjari was not granted in express terms but definite extents were granted to different individuals.

On the facts so found, the Supreme Court held that the grant being of specific blocks was not an estate within the meaning of Section 3(2)(d) of the Act. But the learned counsel relied upon certain observations made by Mahajan J. in his judgment and contended that his Lordship defined "whole village" in the main part of the section and that definition if applied to the "village" in Section 3(2)(e) would lead to the conclusion that unless tne entire area within the boundaries of a village was grant-ed in inam, it would not be & grant of a "whole village" or "a village" within the meaning of Section 3(2)(e). The observations relied upon read as follows :

"The question for decision is whether the grant in this case to the predecessor-in-interest of the appellant was of a whole inam village, and if the grant did not incorporate the whole village area, whether the grant was so expressed as to be of a named village and any area excluded from it had been already granted on service or other tenure or reserved for communal purposes within the meaning of explanation I.

In other words, the grant must either comprise the whole area of a village or must be so express-ed as tantamounts to the grant of a named village as a whole even though in fact it does not comprise the whole of the village area. In this latter case in order to come within the scope of the definition it must fulfil the following conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as much by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure; or (c) that it had been reserved for communal purposes."

13. These observations do not, in our view, bear out the interpretation put upon them by the learned counsel. The learned Judge does not say that the main part of the section and the explanation should be read separately and that the main part takes in only a grant of the entire area of the village and the explanation covers a case of a grant of a named village. As we have already stated, the explanation elucidates the meaning of the main part, and if so elucidated, the main section itself takes in not only the grant of a named village but also the grant of a whole area in the village. That that was the meaning of the learned Judge is made clear by the later observations made at page 590 to the following effect:

"In --' 'Janakirama Sastri v. Jagani Gopalam',

(I), it was observed 'any inam village' in Section 3(2) means 'a whole village granted in inam and not anything less than a village, however big a part it may be of that village.' In my opinion, this is the true construction of Clause 3(2)(d) and the explanation has a similar meaning. It clarifies the point that notwithstanding the exclusion of certain lands in which the grantee has a reversionary interest from the grant, nonetheless it remains a grant of a whole village provided it is so expressed."

14. The other learned Judge, Chandrasekhara Aiyar J. also expressed much to the same effect. At page 592 his Lordship observed :

"It appears more probable that there were two grants under one paravangi to two different persons, the bigger area of 39, V. 17M. including the poromboke in favour of Venkatachala Mudah, and the smaller area of OV. 15M. in favour of Chinna Appu Moopan, both being personal grants at tiie inception. Consequently there was no grant of a whole inam village or of a named village, smaller areas having been carved out therefrom prior to the date of the grant on service or other tenure, and the remaining part still being recognised and treated as a revenue unit with a nomenclature of its own."

15. The learned Judges do not either expressly or by implication hold that the main part of the definition should be read 'de hors' the explanation, and that if so read, it takes in only a grant of an entire area in a village and not a grant of a named village. Indeed, the learned Judges treated the main part and the explanation as one see-tion and the explanation as elucidating the scops of the section. We therefore cannot agree that the Supreme Court held that but for the explanation and the explanation as elucidating the scope hi a grant of a whole village as laid down in 'AIR-1916 Mad 263 (A)'.

If they intended to lay down any such principle, it is impossible to conceive that Chandrasekhara Aiyar J. who decided the case in 'AIR 1945 Mad 603 (C)', holding therein that the grant of a whole village notwithstanding the existence of a few minor inams and porombokes was an estate within the meaning of Section 3(2)(e) would not have noticed his own judgment and overruled or otherwise explained it. The same view was expressed by the Pull Bench in a recent judgment in -- 'L. P. A. Nos. 61 and 62 of 1949' not yet reported--'Bhavanarayana v. Venkatadu', Since reported in, (PB) (Ji. There, there was a grant of a village where there existed already minor inams of the extent of 43 acres 15. cents, one of them batavarthi and two devadayam inams. The learned Judges held that the village was an estate. After tracing the history of the explanation, Govinda Menon J. observed:

"It is now settled law that by reason of the amendment made in 1945 which added an explanation to Section 3(2)(d) of the Madras Estates Land Act and numbered as explanation (1) a grant con-stitutues an estate if it is expressed to be a named village irrespective of the fact that some of the lands in the village had already been held on inams or servise grants or were reserved for communal purposes."

We therefore hold that the addition of an Explanation to Section 3(2)(d) or the decision of tlie Supreme Court on the interpretation of that clause has not in any way affected or shaken the settled law on the subject of the interpretation of the word "village" in Section 3(2)(e) of the Act.

16. In the present case both the District Munsif and the District Judge found on the evidence that the villages named Alamanda, Kirla and Siriki-palem were granted in 1808. That finding is borne out by the evidence in the case. It is not therefore open to us in revision to question the same. But as arguments were addressed at some length on the question of fact, we shall also express our view on the question of fact. The history of these villages is recorded in earlier decisions of this court. The first decision is -- 'Vizianagaram Maharajah v. Sitaramarazu', 19 Mad 100 (K). There the Rajah filed a suit for possession of the aforesaid three villages granted by his predecessor to the ancestors of the defend ante on the ground that the villages had been granted on service tenure and that he was entitled to resume them. It was held that he had no right to resume them. The following passage appears at page 102 of the report :

"Up to that date the defendant's predecessor had held the villages under an instrument of 1308 (XII). That instrument styled a mokhasa patta, declares that the grantees shall enjoy the village hereditarily. Except in the use of the word mokhasa there is no reference to any service. The grant is an absolute one, free of rent and evidently intended to be in perpetuity."

The grant filed in that case is not produced in the present case. In the ordinary course of things, it should have been in the possession of the plaintiffs: The summary of the grant recorded in '19 Mad 100 (K)' would show that three named villages were granted to the inamdars hereditarily. The villages came up again for judicial consideration in --'Sultan Bahadur of Vizianagaram v. Collector of Vizagapatam', AIR 1915 Mad 535 (L). It was a suit tiled by the Rajah for getting the lands covered by the grants separately registered and to have separate assessment imposed on them. The High Court held that the Madras Assessment of Land Revenue Act (1 of 1876) applied to the grantees and dismissed the suit. The terms of the grant and the nature of the tenure are given in the judgment. At p. 535 It is stated :

"By a deed, dated the 1st June 1808, the predecessor of the present plaintiff granted a mokhasa patta to three individuals of three villages without reserving any rent."

At page 536 the learned Judge proceeded to state :

"Now the three villages have been enjoyed for the past sixty years subject to the payment of this kattubadi without any question being raised about it, and we must take it, that the tenure on which they held is that they should hold the land subject to an annual payment of this kattubadi of Rs. 300 and that in effect there was a regrant of the three villages in 1853 .... .. (the) terms are : that they should enjoy the villages on a payment of Rs. 300 kattubadi annually, leaving the zamindar to pay the proportionate peskash which, as the mere fact of the institution of this suit shows, is probably a considerably larger sum."

It is therefore clear from the aforesaid two decisions that the plaintiffs in this case were asserting that they were holding the villages permanently under the grant of 1808 on the payment of a kattubadi of a sum of Rs. 300 and that fact was recognised and accepted by decisions.

17. The Inam Registers, Exs. D. 1 and D. 2 in respect of the inams in the village of Kirla and Alamanda also support the fact that the inam villages were granted in 1808, Ex. D. 1 is a register of inams in the village of Kirla and Ex. D. 2 is the register of inams in the village of Alamanda. Exs. D. 1 & D. 2 relate to the extent of land given in exchange to that of the presettlement inams. In Col. 21 the history of the villages & the contentions of the parties who appeared before the Deputy Collector are recorded.

That also shows' that the common case of the zamindar and the inamdars was that the villages were granted in inam as mokhasas and the disputes centred round only on the question whether the exchange was true. The Deputy Collector's observations also proceeded on the basis that Alamanda and Kirla were two mokhasa villages. On the evidence adduced in the case the courts below came to the conclusion that the villages of Alamanda and Kirla were granted as mokhasas in the year 1803. We do not think we are justified in interfering in revision with the findings based on evidence. Further we are also satisfied that the findings are correct on the material placed before the courts.

18. It is then contended that the village is not an estate witnin the meaning of Section 3(2) (e) as the pre-existing minor inams are not of the categories mentioned in explanation (1) of Section 3(2)(d) of the Act. Under explanation (1), a named village grant--ed in inam would be an estate though the grant did not include certain lands in the village which-already had been granted on service or other tenure or have been reserved for communal purposes. In the present case, the pre-settlement inam is of approximately 28 acres and it is a personal inam. it is contended with some force that "other tenure" in the Explanation must be read 'ejusdem generis' with "service" and therefore that personal inams would not come within the meaning of the expression "other tenure".

Though Explanation (1) is not part of Section 3(2)(e), as we have already stated, there is no reason why the principle embodied in explanation (1) should not be applied to the expression "village" in Section 6(2)(e) as after all explanation (1) only declared what has all through been the settled law in the State. The question, therefore, is whether a named village would be an estate within the meaning oi Section 3(2)(e) if there were other minor personal inams carved out of it prior to the grant of the village. We are relieved of the duty of deciding this question as recently a Full Bench of this court expressed their opinion on the same in -- 'AIR 1951 Mad 415 (J)'. Govinda Menon J. observed as follows:

"If we consider the history of the legislation, viz.. Madras Act 2 of 1945, and the evils which it sought to remedy, then there will be no difficulty whatever holding that the legislature did not intend to restrict the minor inams to the group of service inams alone. What was intended was that the tenants in a whole inam village ought not to be deprived of the right of occupancy which they would have if it were an estate by the mere fact that some portions of the village had already been granted on some minor inam. We are also not able to see that there is any other class of inams which are of the same genus as personal inams. We therefore feel that the restrictive interpretation sought to be put upon the words 'other tenure' would nullify the beneficient effect of the amendment."

The other two Judges concurred with this view. We are bound by this decision. In view of the Full Bench decision, it is not necessary to consider the conflict of opinion expressed on the subject by Mahajan J. and Chandrasekhara Aiyar J. or to indicate our view on the subject.

19. Learned counsel then contended that the extent of 316 acres granted to the inamdars in exchange of a pre-settlement minor inam is not a part of the mokhasa village granted in 1808. We have already held that the two villages excluding the pre-settlement inams were granted as mokhasas. The learned District Judge held on the evidence that the grants of the village included the extents covered by the inam title deeds. No permissible grounds are alleged or suggested for interfering with that finding in revision.

20. The next contention of the learned counsel is that because of the enfranchisement proceedings and the issue of title deeds in favour of the inamdars, the extent covered by the inam title deeds should be treated as pre-settlement inams and, if so treated, it would not be part of the estate. The same argument was advanced in --'Butchiramayya v. Gunduramanna', (M), and a Division Bench of this court consisting of Rajamannar C. J. and Venkatarama Aiyar J. negatived the contention. There, as here, the Rajah of Viaianagaram granted to one Poosa-pati Ramachandra Eaju lands in two villages, viz., Korukonda and Nerellavalsa, yielding an income of Rs. 750 sometime in 1791.

In 1813 the Rajah took these lands and in exchange granted to too inamdars portions of zeroyti lands in the village ol Kaniinerka yielding an income of Rs. 750. The lands given in exchange were subject of enfranchisement proceedings at the time of inam settlement in 1883. Though the fact of exchange was brought to the notice of the Inam Commissioner, the enfranchisement was made in the belief that the lands obtained by exchange were held under the same tenure as the lands given in exchange the question in that case was whether me inamdar was a landholder within the meaning of the Madras Estates Land Act. If the lands were treated as forming part of a, pre-settlement minor inam vaildly enfranchised by the Government in 1863 the Madras States Land Act would have no application. But the learned Judges after considering the relevant decisions on the subject came to the following conclusion:

"The above authorities directly apply to the present case. It must be decided, following them, 'that the character of the lands in suit which were situated in a zerbyoti village forming part of a permanently settled estate, did not cease to be such even though they were obtained by the petitioner's predecessors in exchange for lands in a pre-settlement minor inam."

21. We respectfully agree with the observations land with the conclusion arrived at by the learned Judges. If so, we should hold that the extent of land granted in exchange in the year 1808 continued to be part of the estate notwithstanding the exchange and the enfranchisement proceedings based on that exchange.

22. Even so it is contended that the order of the Inam Commissioner enfrachising the inam and issuing title deeds would be binding on the zamindar as he did not take steps to set aside the order within the period of one year prescribed under Article. 14 of the Limitation Act and there-fore it is not open to the zamindar to question, the validity of the inam proceedings or to contend that the lands covered by those title deeds are not pre-settlement inams. The same argument was open before the Division Bench in -- ' CM)', but for

obvious reasons it was not put before them.

Learned counsel contends that the said decision can be distinguished on the ground that to the inam enquiry and the order issued by the Inam Commissioner the zamindar was not a party, whereas he was a party and indeed he took an active part in the inam enquiry held in respect of the suit villages of Alamanda and Kirla. This argument ignores the scope of an inam enquiry. Sundararaja Aiyangar in his well-known book of Land Tenures in the Madras Presidency summarises the scope of the enquiry by the Inam Commissioner at page 396 of his book as follows:

"The Inam Commissioner is a deputy or agent of government for the purpose of the enfranchisement of inams, and is an officer fully empowered to investigate the rights of inamdars and to recognise on behalf of Government what rights are proved to exist in them. He can sell the reversionary rights of the Crown in accordance with the rules framed by Government, and his decision within the scope of his authority is binding upon it. The presumption is that he did not transgress the rules made by Government. Any arrangement entered into between him and the zamindar, or any statement made in the Inam Register, will not prejudice the actual right of the inamdar. His duties are hi no way prejudicial, and he has only to deal with those in possession of an inam on terms varying with the nature of the inam and cannot deal with the right of the persons entitled thereto; nor is it within the scope of his authority to determine the relationship of the 'Melwaramdar' and the 'Kudiwaramdar'. But any declaration or finding by him regarding the nature and extent of the inam will bind Government."

It will be seen from the aforesaid remarks that the scope of the enquiry by the Inam Commissioner was very limited and he was not given any power to decide the rights of parties 'inter so' other than the Government. He was only empowered under the rules framed by the Government to investigate the lights of persons who may for convenience sake be called "holders of pre-settlement inams." "He woutd have 'certainly no jurisdiction to enfranchise post-settlement or darimila grants made by the zamindar subsequent to 1802. Any enquiry or decision made by him in respect of post-settlement grants would be without jurisdiction. This question fell to be considered as early as 191S in -- 'Narasimharao Pantulu Garu v. Bccy. of State', AIR 1917 Mad 337 (N).

In that case certain darimila inams granted subsequent to the permanent :iett!enient were enfranchised. The learned Judges held that the enfranchisement made by the Government was 'ultra vires' and not binding on the plaintiff who filed a suit for a declaration that the said lands in possession of the karnams were not resumable by Government. Much to the same effect was stated by Seshagiri Aiyar and Burn JJ. in -- 'Vasireddi v. Secy, of State', AIR 1920 Mad 1013 (Q). There the lands were included in the assets of the zamin-dari at the time of the Permanent Settlement but they were enfranchised by the Government. The learned Judges held that the said act was 'ultra vires'. The observations made by the learned Judges in coming to that conclusion may usefully be extracted. They said :

"If the Inam Commissioner with knowledge that the lands were post settlement inams passed enfranchisement proceedings, he would have acted 'ultra vires'. Such proceedings need not be set aside under Article 14 of the Limitation. Act ........In our opinion these decisions lay down the law correctly. No doubt, as the learned Government Pleader suggested, if on investigation of the circumstances which would give jurisdiction, an officer decides facts in a particular manner and proceeds to deal with it further in the exercise of the powers vested in him, it may be contended that the order was passed 'intra vires' and that mistake as to facts of the deciding officer would not oust his jurisdiction. But where the facts are undisputed and do not give the officer jurisdiction to deal with the subject matter, his decision must be regarded as 'ultra vires'."

In -- 'The Secy, of State v. Gulam Mahaboob Khan', AIR 1920 Mad 885 (P), Abdur Rahim & Spencer JJ. accepted in principle that where the resumption was a nullity, a suit for possession was not barred by limitation. It is not necessary to multiply cases as the aforesaid principle is self-evident. An order of a Tribunal or an officer made without jurisdiction would be a nullity. In this case, as we have already stated, the Inam Commissioner had no jurisdiction to enfranchise post-settlement darimila grants. The inam in question is admittedly a post-settlement inam. The order of the Inam Commissioner was 'ultra vires' and therefore would not be binding on the parties. The fact that the zamindar took part in the Inam proceedings would not affect the question. That must have been the reason why this question was not raised before the Division Bench in -- ' (M)'.

23. learned counsel then argued that the subject-matter of the exchange had ceased to be part of the zamindari at the time when the Estates Land Act came into force in the year 1908 and had become the property of the Government by adverse possession. In support of this contention various decisions have been cited before us. But this question was not raised in the courts below. The question of adverse possession is essentially a question of fact. A party relying upon it should expressly plead and ask for an issue to be raised in respect thereof. The pleadings do not disclose any such plea. Nor there is any issue on that question.

The learned District Munsif rightly pointed out in the first batch of suits relating to Kirla village that acquisition of rights by adverse possession should be pleaded and proved by evidence as it is not a mere question of law. But there is neither a plea nor evidence in this case of any prescriptive title by the plaintiff. Even that plea raised before the District Munsif was not what is now pressed before us, namely, that the Government had acquired a right by adverse possession to the suit lands and therefore they ceased to be part of the zamindari, but that the plaintiffs, i.e., the inamdars, acquired a right to hold the said lands as pre-settlement inams. Even that plea was not raised in the appellate court.

Sitting in revision we are certainly not justified in allowing the petitioners to raise a new plea which requires elucidation of further facts. That cannot be done in appeal and obviously cannot be raised in a revision. In the result the lower courts' decision is correct. The civil revision petitions fail and are dismissed with costs.


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