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Adavikolanu Seshagiri Rao Vs. Sri Rajah Venkataramayya Appa Rao Bahadur Zamindar Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1938Mad295
AppellantAdavikolanu Seshagiri Rao
RespondentSri Rajah Venkataramayya Appa Rao Bahadur Zamindar Garu and ors.
Cases ReferredSrinivasamoorthy v. Venkatavarada Aiyengar
Excerpt:
.....were therefore perfectly justified in finding a case of abandonment of right and change in the character of possession whatever may be the nature of the original possession, whether resumption proceedings were legal or illegal. the government ware not resuming the mokhasa qua zamindar but as government in the exercise of their undoubted power vested in them, that they ware conscious of this is clearly proved by exs. 123 the argument thus based on the question of express trust must therefore fail......thus an 'alienated land' within the meaning of the preamble to the madras regn. 31 of 1802 and the right of resumption inhered in the government by virtue of the power reserved under clause 4, madras permanent settlement regn. 25 of 1802. this position cannot seriously be disputed especially after the recent pronouncement of the privy council reported in secretary of state v. sobhandri appa rao between 1802 and 1860 the zamindari of nidadavolu has a chequered history. it was being badly mismanaged by the zamindars for the time being and came into the possession of the government three times. in 1831, the government was in management of the zamindari through the court of wards. they found that the kattubadi payable by the mokha-sadars was in arrears. under the law then prevailing, it was.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a suit for the recovery of possession of l/36th share in a mokhasa known as Thimmaraogundem situated within the geographical limits of Baharjalli Pargana in Nidadavolu zamindari. Both the lower Courts dismissed the suit as barred by limitation. Defendants 1 and 2 and their predecessors-in-title, the zamindars, got Into possession of the said mokhasa nearly a century ago and from 1856, at any rate for nearly 70 years, they have been in open, continuous and undisturbed possession of the same and enjoying the property in their own right. It was alleged that their original entry into the land was as trustees; they were never divested of their possession as such trustees and no question of limitation arises. To appreciate the points' in controversy between the parties, it is necessary to set out a few relevant facts.

2. The village of Thimmaraogundem was admittedly a pre-settlement mokhasa (vide Ex. A) and subject to a kattubadi of Rs. 960-0-0 at the date of the Permanent Settlement of the zamindari. It is thus an 'alienated land' within the meaning of the Preamble to the Madras Regn. 31 of 1802 and the right of resumption inhered in the Government by virtue of the power reserved under Clause 4, Madras Permanent Settlement Regn. 25 of 1802. This position cannot seriously be disputed especially after the recent pronouncement of the Privy Council reported in Secretary of State v. Sobhandri Appa Rao Between 1802 and 1860 the zamindari of Nidadavolu has a chequered history. It was being badly mismanaged by the zamindars for the time being and came into the possession of the Government three times. In 1831, the Government was in management of the zamindari through the Court of Wards. They found that the kattubadi payable by the mokha-sadars was in arrears. Under the law then prevailing, it was open to the landlords to realize arrears of rent due to them without resorting to Courts of law by distraint of personal property or by attachment of the farms and tenures of defaulters and realizing all rents there from. The Court of Wards chose to adopt the latter course with reference to the suit mokhasa. They therefore attached it and this was in pursuance of the power conferred by Clause 6 of Section 34, Madras Regn, 28 of 1802. It is to this clause one has to look for the definition of the legal relationship between the zamindar and the mokhasadar and the nature of their rights and obligations. The material provisions of Clause 6 relevant for the purpose of the present discussion runs thus :

The proprietors or farmers of land to whom such arrear may be owing shall have power to attach the farm or other tenure of such defaulters, and to manage the same by their own agents, until the rent due, and the further rent which may become due after attachment, with interest upon the whole arrear at the rate of one per cent per mensem, may have been liquidated; but in such cases of attachment, proprietors, or farmers, shall not exact more from the cultivators of the soil, and other descriptions of inferior tenantry, whose rents for the current year may have been payable to the defaulters, than the defaulters would have been entitled to receive from them if the attachment had not taken place ; and in the event of the defaulters making good the arrear due from them, with interest at the rate of one per cent, per mensem, at any time within the current year, the attachment shall be withdrawn, and an account rendered to them of the receipts and disbursements, during the continuance of such attachment.

3. Therefore this provides a statutory remedy for the discharge of the tenants' obligations to pay rent. There is no transfer of property nor is there a right to call for a transfer of property. The only right conferred, is to manage the property until the amount due or to be due is discharged. No right of disposal over the property is given. But for the statutory power, the landlord would have no right to enter on the land. The possession of the tenant is thus displaced by virtue of the statute. It is not therefore by virtue of any confidence reposed by the mokhasa-dars in the zamindar that possession is taken but in opposition to and in derogation of his rights as owner to remain in possession. The relationship thus created by the attachment can in no sense be one of a trustee and cestui que trust. This then is the legal relationship which subsisted between the zamindar and the mokhasadar flowing from and out of the attachment of the mokhasa with a right on the part of the Government in exercise of their sovereign power to resume it. The zamindari itself was sold for arrears of peshkush in 1843 and regranted to the zamindar in 1845. Again in 1851 the zamindari was sold for arrears of peshkush and came into the possession of the Government and remained with them till 1860. Daring this time the Government took serious steps to set right the affairs of the zamindari. They found that considerable arrears of kattubadi were payable to the zamindar not only with reference to the suit mokhasa but also with reference to 31 other mokhasas. So far as the suit mokhasa was concerned, as the learned Subordinate Judge points out,

the village became a bechiraku village and in fact not even Rs. 200 could be realized by the rents of the village whereas the kattubadi was Rs. 987-9-0.

4. The Government decided on resuming this mokhasa and other mokhasas unless the mokhasadars came to terms in regard to the arrears. The Collector gave notices in 1856 to the mokhasadars of this village as well as the mokhasadars of other villages. From Exs. 13 and 13-A, it is clear that some of the mokhasadars adjusted the matter with the Government and others did not, and in regard to those that failed to adjust, the Government decided to resume them and incorporate them with Government land. One of such mokhasas which the Government chose to resume and incorporate with the Government property was the suit mokhasa. The Collector points out that in spite of notices and proclamations the mokhasadars failed to appear. There were arrears of over Rs. 18,000 due in respect of this mokhasa. Having regard to the then state of the village, as pointed out by the learned Subordinate Judge, the mokhasadars did nod care to appear and lay claim to the village. The Government accordingly resumed it and made it part of the Government property, but still the obligation to pay the kattubadi remained. As the Government were then considering themselves as the owners of the zamindari, they wrote off the arrears. But when the sale of the zamindari was set aside, the question was as to what to do with the village. Having regard to the fact that they had to pay this large amount of kattubadi to the zamindar they granted the village unconditionally to the zamindar along with the zamindari in 1860. The result of these resumption proceedings and the grant to the zamindar was to put an end to any relationship or obligations created by the attachment of mokhasa in 1831. The zamindar from 1860 was holding the mokhasa in his own right free and discharged of all claims of the mokhasadars. The accounts of the zamindari maintained by the karnams, who belong to the family of mokhasadars, seem to be almost decisive of the fact that the resumption was acquiesced in and the old relationship came to an end: vide Exs. 12 and 14 particularly the latter which shows that after 1860 there was no debit of kattubadi or any adjustment of the income therefor in the zamindari accounts.

5. Both the lower Courts, after a consideration of the entire evidence, the probabilities of the case, the surrounding circumstances that prevailed at or about the time of resumption, and the subsequent conduct of the parties, found that the resumption proceedings were with the knowledge of the mokhasadars and they acquiesced in the same and abandoned 4hair right to the mokhasa. The conduct of the zamindars was also in consonance with this view. In 1884, an attempt was made to recover possession of the mokhasa but it failed. Subsequently, there were two litigations launched (O.S. No. 9 of 1890 on the file of the Sub-Court, Ellore, and O.S. No. 88 of 1895 on the file of the District Munsif's Court of Ellore) for recovery of possession of the zamindari. In both the litigations the zamindar set up exclusive title. In the judgment in the second litigation it was distinctly found that the arrear due to the zamindar was discharged long prior to the suit. After the dismissal of these suits, no further attempt was made until 1927 for a period of 30 years when the present suit was launched. Thus for over a period of 70 years, the zamindars have been in possession and enjoyment of the suit mokhasa in their own right. The conduct of the parties at any rate up to 1884 has been on the footing that the resumption proceedings ware valid. Again after open disclaimer by the zamindars of the title of the mokhasadars and setting up their own hostile title, the previous state of affairs was allowed to remain and the zamindars ware allowed to continue in undisturbed possession of the same for over 30 years. A clearer case of abandonment of right cannot be found and it is highly inequitable that the mokhasadars should be entitled to disturb 'the lengthened enjoyment or the immunity' to which they have been tacit parties. Both the Courts were therefore perfectly justified in finding a case of abandonment of right and change in the character of possession whatever may be the nature of the original possession, whether resumption proceedings were legal or illegal.

6. In this connexion I may point out that that view taken by the lower Appellate Court, that the resumption by the Government is not legal is wrong. The Government ware not resuming the mokhasa qua zamindar but as Government in the exercise of their undoubted power vested in them, that they ware conscious of this is clearly proved by Exs. 13, 13-A and 14. The resumption by the Government is thus valid and the mokhasadars had no right to question it and the plaintiff has no cause of action to sustain this suit. Mr. Lakshmanna's first concern was to attempt to displace the concurrent findings of both the Courts that mokhasadars were aware of and acquiesced in the resumption and abandoned their right to the mokhasa. His main argument is that Ex. 6 does not refer to resumption at all, and that the learned Subordinate Judge erred in relying on it for his finding. It will be seen that the learned Subordinate Judge relied on Ex, 6 for the purpose of shewing that the Government from the time they got into possession wanted to have the arrears adjusted with the proprietors of the various mokhasas and the plaintiff's predecessor-in-title was sent for and called upon to adjust the arrears. This is taken as one of the circumstances for probabilizing the accuracy of the statement in Ex. 13-A that the mokhasadars were given notice of resumption and that the regular procedure has been followed and coupled with other circumstances, he therefore inferred as a fact that the mokhasadars were aware of the resumption and acquiesced in the same. The learned Subordinate Judge referred to all the material documents and probabilities and arrived at the findings. Mr. Lakshmanna has not been able to convince me that the findings are wrong, and they have therefore to be accepted in second appeal. Once the findings are accepted, much of the basis for Mr. Lakshmanna'a argument disappears. However, I will notice his legal contentions. He contended that by virtue of the attachment the zamindar became an express trustee, that the property was vested in him for the specific purpose of discharging arrears and that no question of limitation would arise by virtue of Section 10, Lim. Act. I have already explained the legal effect of the attachment. The taking possession by the zamindar does not vest in him any control over the property. There was no transfer or conveyance to the zamindar in trust and therefore no vesting within the meaning of Section 10, Lim. Act: Vidya Varuthi v. Baluawami Ayyar A.I.R. 1922 P.C. 123 the argument thus based on the question of express trust must therefore fail.

7. Mr. Lakshmanna placed considerable reliance on two cases of the Bombay High Court, namely Tukaram v. Sujangir Guru (1884) 8 Bom 585 and Secy. of State v. Bapuji Mahadeo : AIR1915Bom282 and very properly refrained from taking the time of the Court by citation of numerous cases as was done in the lower Courts. The case in Tukaram v. Sujangir Guru (1884) 8 Bom 585 is distinguishable. There was a taking of vatan land by the Government at the request of rival claimants pending the settlement of a dispute. As pointed out by West J. himself, who delivered the judgment in the Tukaram v. Sujangir Guru (1884) 8 Bom 585 in a later case Shivram Dinkar v. Secy. of State (1887) 11 Bom 222 , the Government did not set up a title of their own. Here the Government resumed the property, treated it as the Government property and granted it as such in derogation of the rights of the mokhasadar. In Secy. of State v. Bapuji Mahadeo : AIR1915Bom282 a communication by the Government to a party teat they are holding some money of his in their hands was held to amount to a sufficient declaration of trust to constitute She Government an express trustee such a declaration is wanting in the present case. If there was no express trust, the bar of limitation must apply and it is not disputed that the statute of limitation does apply to a case of constructive or implied trust. Assuming that by virtue of the statutory obligation to account for the management and to deliver possession of the land a constructive trust can be raised, there has been open disclaimer of the title of the mokhasadars and the renunciation of the character of possession which will set the statute running from the date of the disclaimer of renunciation.

8. Mr. Lakshmanna placed considerable reliance on the decision in Srinivasamoorthy v. Venkatavarada Aiyengar (1911) 34 Mad 257 for the position that until a person who has token possession of the properties as trustee has divested himself of that character, no question of adverse possession would arise. But the principle of that decision would not apply to the facts of this case. There has been a complete divestment of any fiduciary character, assuming the zamindar held such. All that is necessary is that such relationship as flowed from the attachment of the mokhasa should be put an end to and the resumption proceedings did put an end to the attachment and both the zamindar and the mokhasadar treated the whole thing as at an end. Further, once it is found, as already pointed out by me, in the litigation of 1898 that the arrears have been wiped out, at any rate from that date the possession of the zamindar must be deemed to be wrongful and the cause of action would instantly accrue and the right to sue has therefore become barred. In my opinion the cause of action accrued to the zamindar even on the date of the resumption. Viewed from any stand-point, the plaintiff's claim appears to be hopelessly barred. The action seems to be purely a speculative one. The decisions of the lower Courts are right and the second appeal therefore fails and is dismissed with the costs of respondent 1. Leave to appeal refused.


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