1. These appeals arise out of two suits filed by the plaintiff in the District Munsif's Court of Nuzvid, to eject the defendants who are alleged to be his tenants.
2. The land in dispute is situate in Arugolanu Mokhasa within the ambit of the Nuzvid Zemindari. It is alleged to have been exchanged for patta lands held under Government pattas. The defendants pleaded inter alia that the Civil Court had no jurisdiction to entertain the suits as the land forms part of the estate within the meaning of the Estates Laud Act. The District Munsif found the 5th issue, namely, whether the suit village is an estate, in favour of the defendants, and dismissed the plaintiffs' suits on the ground that the land in question was part of an estate within the meaning of the Estates Land Act. On appeal the Subordinate Judge held that the village in which the suit land is situate forms part of the Nuzvid Zemindari and is an 'estate' as defined in Section 3, Col. 2 (e) of the Estates Land Act, that the character of the land has not changed by reason of the exchange referred to in the plaint, and that the plaintiff is, therefore, a landholder. He returned the plaints for presentation to the Revenue Court and against those orders the plaintis has filed the present appeals.
3. The land in dispute was admittedly part of the Nuzvid Zemindari. The village of Arugo-lam in which the land is situate appears to have been granted as Mokhasa in 1747 by the then holder of the Zemindari Jaggannatha Appa Eao. The original grant has not been produced but the terms of the grant can be gathered from Ex. I which is an extract from the Inam Register. The Ina/m is classed as 'personal Inam The Aiakat is said to be 1781-85, Poramboke 542-54 and the Inams 50 acres, 91 cents Under the column of the description of Inam, the entry is Bhata Vrilti. The original grantees were Desapandayas. It is admitted before us that Desapandayas were the persons who were doing the duty of, collecting the revenue. Under the heading of tenure, the entry is : 'The tenure is Ghatbhagam now also settled on the same tenure on produce 450-0-0.' The grant is said to be hereditary by prescription and is said to have been granted by Jaggannatha Appa Rao in Fasli 1156 or A.D. 1747. The East India Company acquired the Government of the Circars in 1768 and the grant, therefore, was one made not only before the permanent Settlement but before the acquisition, by the Company of the Government of the Circars. 'Ghatur Bhagam ' is defined in Wilson's Glossary as the fourth part of the annual crop received by Government from the holders of certain alienated lands. In Sri Rajah-Sobha-nadhri Appa Eao Bahadur v. Sri Rajah Venkatanarasimha Appa Rao. Bahadur 26 M. 403 the tenure known as Mokhasa has been defined as one which is created by an assignment of village or land to an individual either rent free or at a low quit rent on conidtion of service.
4. It is argued for the appellant that the grant was on favourable quit rent which means something less than the actual mehvaram which the landlord would be entitled to but for the grant and that in case of Ghatur Bhagam Vokhasas, the grant was on condition that only a fourth of the produce was paid to the Zemindar, that the very fact that the Mokhasa was granted for Bhata Vritti, that is, service, and that the grantees were Desapandayas or Collectors of Revenue shows that the benefit to the grantees by reason of the grant of the Mokhasa was the difference between the rent which would ordinarily have been paid and the fourth which the grantees have to pay. It seems to us to be clear that the grant being a pre-Settlement grant, it would not form part of the Zemindari unless it can be brought under any of the clauses of Section 3, Clause (2) of the Estates Land Act, and for this purpose it is necessary to see whether at the time of the Permanent Settlement, this pre-Settlement Inam was treated as part of the Zemindari assets and the income taken into account for the purpose of the grant of the sanad. In this connection, reference has to be made to Regulation XXV of 1802. Section 4 of the Regulation runs as follows: 'The Government having reserved to itself the entire exercise of its discretion of cuntinuing or abolishing, temporarily or permanently, the articles of revenue included, according to the custom and practice of the country, under the several heads of salt and saltpetre of the Sayar, pr duties by sea or land - of the bakari, or tax on the sale of spirituous liquors and intoxicating drugs--of the excise on articles of consumption--of all taxes personal and professional, as well as those derived from markets, fairs or bazaars--of lakhiraj lands (or lands exempt from the payment of public revenue), and of all other lands paying only favourable quit rents, the permanent assessment of the land-tax shall be made exclusively of the said articles now recited.'
5. The contention of Mr. Ramadoss is that the Mokhasa being a pre-Settlement inam granted on favourable quit rent, it must have been excluded by Section 4 at the time when the revenue of the aemindari was taken into account for the purpose of the Permanent Settlement and that, even if it was included, it could nob affect the rights of the Mokhassadars as such inclusion would be opposed to the provisions of the Permanent Settlement Eegulation. Reliance has been placed on Kuppu Beddi Noolcayya v. Bheemanna 78 Ind. Cas. 788; (1928) M.W.N. 176 : 17 L.W. 712; (1928) A.I.B. (M.) 164 : 44 M.L.J. 91. In that case the Zemindar of Pittapur granted in 1880 an Inam of certain lands in the Zemindari. It was made free of Kattubadi and purported to be sarva dumbala or absolute. It was held that the Inam was not part of the Pittapur Zemindari as'it was a pre-Settlement Inam excluded from the assessment of the Zemindari. Oldfield and Bamesam T. after referring to Eegulation XXV of 1802, were of opinion that in view of the unqualified terms of Section 4 there was no relevancy in the enquiry whether the Indira was in fact included in the assets of the Zemindari on which the peishcush was fixed with regard to the Circuit Committee's accounts prepared before 1786. In another Second Appeal, Varhaliah v. Venkatasuryanarayana 75 Ind Cas. 465; (1923) M.W.N.732 : 18 L.W. 324; (1924) A.I.U. (M.) 117, Ayling and Odgers, JJ., held that though the fact of an Inam having been granted prior to 1802 raised a presumption that the lands granted were excluded from the Permanent Settlement, that presumption was capable of being rebutted. As pointed out by their Lordships of the Privy Council in Secretary of State for India v. Bajah of Venkatagiri 26 M. 403, the draft of Section 4 can by no means be commended for preciseness or lucidity. Objection is now taken by Mr. Ramadoss that, even assuming that the income from this Mokhasa was taken into account for the Permanent Settlement, it should be ignored because of the express provisions of the Eegulation. The effect of Section 4 was considered by their Lordships of the Privy Council at p. 875 of the report. After pointing out that, so far as the actual settlement of the Venkata-giri Zemindari was concerned, the Government fixed a definite specific assessment on the whole Zemindari irrespective of the particular assests derived from each particular unit of property within the estate, their Lordships observe : 'The question now is whether the action of the Government was, in view of the provisions of Eegulation XXV of 1802, valid or otherwise. As already stated, Counsel for the appellant have strongly argued that, in view of the provisions of Section 4 of that Eegulation, excluding Lakhiraj lands (or lauds exempt from the payment of public revenue) and all other lands paying only favourable quit rents from the permanent assessment of the land tax, it was not competent for the Governor-in-Council to grant sanad of the character that is in issue in this case.' Their Lordships of the Privy Council were of opinion that the question had to be decided with reference to Sections 3 and 4 of the Act and the conditions of the sanad and thjtt where the sanad contained no reference to Lakhiraj lands, Section 4 could have no application and the assessment fixed upon the Zemindari by virtue of the arrangements adopted in 1802 was upon a basis quite different from that provided in Section 4 of the Regulation.
6. The question, therefore, in this case cannot be decided without reference to the terms of the sanad granted by the Zemindar and to what actually took place at the time of the Permanent Settlement. We are of opinion that where, at the time of the Permanent Settlement, lands which the Government might have excluded from assessment by reason of the various grounds set forth in Section 4 of the Eegulation were as a matter of fact included in calculating the assessment payable by the Zemindari, and where both the Government and the Zemindar from 1802 have acted on the footing that the Inam forms part of the Zemindari, the tenants who were subsequently introduced into the property have no right to question the acts of the persons entitled at the time of the sanad to enter into those arrangements.
7. Reliance has been placed by the Subordinate Judge on the fact that at the time of the Inam Settlement an attempt was made to enfranchise the whole village but that after some enquiry the Government gave up the attempt and the matter went up to the Secretary of State with the result that the enfranchisement proceedings were given up. It is argued that the fact that the Government gave up enfranchising the village after so much correspondence shows that the income of the village must have been included in the assets of the Zemindari. It was stated before us that the order of the Government at the time of the 'Settlement was subpoenaed for but that the order was not filed owing to objeetions taken by the Board of Revenue. As it appeared that copies were obtained by the Zemindar and were filed in other proceedings relating to the same village, and as Ex. II which is a judgment of the Subordinate Judge of Masulipatam in the A.S. No. 466 of 1912 relating to another portion of the same village and where the Government order is referred to, was filed without any objection in both the lower Courts, we thought it desirable in the interests of justice to call for the Government Order No. 2374, dated 24th December, 1861. The order of the Government and the connected papers have now been produced. The letter from Mr. Taylor, the Inam Commissioner, to the Government, dated July 23rd, 1860 refers to the Mokhasas of the old Masulipatam District and it states that the full value of the' Mokhasas in the Nuzvid Zemindari was included in the accounts of the Permanent Settlement. After dealing with the several reports he states as follows : ''It was necessary to devote the most careful scrutiny to the above references as the original nature of these Mokhasas, and the circumstance of their being included in the assets of the Zemindaries had not been generally understood. The villages of the Zemindari Estates are distinguished on the back on the permanent Kaul as Sen (i.e., under the direct management of the Zemindar] Mokhasas and Aggraharams. But this distinction affords no ground for classing the Mokhasas with the Lakairaj lands excluded by the sanad; whilst a different conclusion is fully established by the accounts upon which the Permanent Settlement was based, and which ought to explain the terms of the Kaul. Should the Government concur in the justice of these observations, I submit we possess no reversionary interest in the Mokhasas nor can we claim to derive a quit-rent by their enfranchisement.' The Government on the llth of August 1860, after referring to' Mr. Taylor's letter, were of opinion that as the question was one of importance, the letter of Mr. Taylor should be referred to the Board of Revenue for report. An exhaustive enquiry was made by the Board though the Collector and the Board of Revenue agreed with the opinions of the Inam Commissioner and the Collector that Mr. Taylor was right and the Mokhasas could not be enfranchised, On the 24th of December 1861 the Government passed the following order :' In their order of llth August 1860, No. 1335, the Government referred to the Board of Revenue for report a letter from the Inam Commissioner relating to the Mokhasa villages of the Zemindaries in the old Masulipatam District. Mr. Taylor was of opinion that these villages were not excluded from the assets of the estates, as had usually been supposed, and that, therefore, they would not come under his operations.
8. 2. The Board were at first doubtful on the matter and resolved to refer the subject for enquiry by the Collector. The result is now submitted with the proceedings recorded above.
9. 3. Mr. Thornhill has conclusively shown that Mr. Taylor was correct in his surmise and the Board now agree both with him and the Inam Commissioner that Government cannot claim the reversionary right to the villages, and, therefore, that the rules for redeeming that right are inapplicable to them.
4. In this view the Government Concur.
10. It is now clear that these Mokhasas were not excluded from the Zemindari at the time of the Permanent Settlement and that they were treated as part of the Zemindari. They are, therefore, part of an 'estate' within the meaning of the Estates Land Act and Civil Courts have no jurisdiction.
11. As regards the exchange alleged by the plaintiffs, we do not think that it would, even if true, change the character of the plaint lands. It has not been shown that the consent of the Zemindar had been obtained. The question is concluded by the decision of their Lordships of the Privy Council in Parthasarathy Appa Rao v. Raja Bommadeva Satyanarayana 49 Ind. Cas. 818 : 42 M. 855 : 17 A.L.J. 278 : 86 M.L.J. 273 : 9 L.W. 411 : 98 C.W.N. 678 : 21 Bom. L.B. 622 : 26 M.L.T. 82. 30 C.L. 382; (1919) M.W.N. 496 : 46 I.A. 88 . The acts of the Inam Commissioner are not by themselves sufficient to affect the Zemindar : [see Sobhanadri Appa, Rao v. Gopalakrishnamma 16 M. 84 : 5 Ind. Dec. 731.]
12. It is argued that the plaintiff is not a landholder within the meaning of Section 3, Clause (5) of the Estates Land Act as he is a minor Inamdar in a Mokhasa. It has been held by a Full Benoh of this Court in Brahmayya v, Ackirazu 70 Ind. Cas. 615 : 45 M. 716; (1922) M. 280 : 21 M.L.T. 91 : 43 M.L.J. 229; A.I.R.(1922) (M) 378 that such an Inamdar is a landholder within the meaning of the section. This decision is binding on us.
13. The decision of the District Munsif and the Subordinate Judge are right. The appeals fail and are dismissed with costs.