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Tota Varahaliah and ors. Vs. Sree Rajah Vatsavaya Venkata Suryanarayana Jagapathiraju Bahadur Garu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1924Mad117; 75Ind.Cas.465
AppellantTota Varahaliah and ors.
RespondentSree Rajah Vatsavaya Venkata Suryanarayana Jagapathiraju Bahadur Garu and ors.
Cases ReferredKuppu Reddi Nookayya v. Mandaluka Bheemanna
Excerpt:
madras estates land act (i of 1908), section 3 - inam granted prior to 1802, whether estate--presumption. - .....in the interval, before it was produced again on the hearing in the lower appellate court, this entry appears to have been made in the 'remark' column. strictly speaking, therefore, the entry in the 'remark' column is not a part of the record in the case, and, if the present appellants wished the lower appellate court to treat it as part of the record, a special application should have been made to that effect. nothing of the kind appears to have been done, and, although we are told that the learned subordinate judge's attention was drawn to this 'remark' column, he makes no reference to it, and it may quite well be that he declined to consider it in the absence of such a special application. we can see no reason for interfering with the lower appellate court' finding of fact as to.....
Judgment:

1. The only quest on for our disposal in this appeal is whether the suit lands formed part of an 'estate' within the meaning of Section 3 of the Madras Estates Land Act, so as to oust the jurisdiction of the Civil Court. Both the lower Courts have found that it did not, and after a long argument on both sides we see no reason for interfering with that decision. We must take it as a fact that the suit lands were granted as an inam in the year 1798, at any rate, before 1802. This was not disputed before the lower Appellate Court; and the case proceeded on the assumption that it was so. The argument there adduced by the defendants, the appellants before us, was that, in spite of this fact, the lands should be treated as part of the estate, because it was not shown that the rentals on them had been deducted from the assets of the zemindari for the purpose of assessing peishcush. The lower Appellate Court has considered this aspect of the case and has come to the conclusion that, although the Circuit Committee's accounts prepared with a view to the assessment of peishcush, would only extend to two years before 1798, the date of the grant, yet, nevertheless, it must be found as a fact that the lands were excluded from the assets of the zamindari in calculating peishcush. This we take to be the conclusion arrived at, at the end of paragraph 7 of the lower Appellate Court's judgment.

2. Mr. Ramadoss for the respondents has drawn our attention to a recent decision of this Court reported in Kuppu Reddi Nookayya v. Mandaluka Bheemanna 73 Ind. Cas. 733 : (1923) M.W.N. 176 : 17 L.W. 712 : A.I.R. (1923) (M) 454 : 44 M.L.J. 91, from which it would appear that the lower Appellate Court might have approached the consideration of the evidence from a point of view much more favourable to the respondents than he did. The learned Judge in that case held that the fact of grant prior to 1802 afforded, at any rate, strong evidence that the lands so granted were excluded from the Permanent Settlement. It may be that this is a rebuttable presumption. But we think it is quite clear that the lower Appellate Court has not found the presumption to be rebutted in the present case. In fact, it has arrived at the conclusion it has, while practically throwing burden of proof on the appellants. We can see no reason for questioning this finding.

3. The learned Vakil for the appellants has laid great stress on an entry in the 'Remark' column in Exhibit II, the B Register of the village, to the effect that the enfranchisement of these properties was cancelled in 1920. The learned Subordinate Judge referred to the enfranchisement but has not referred to the cancellation. The reason appears to be this: When Exhibit II was originally filed in the First Court there was no such entry in the 'Remark' column. The register, being a public document, appears to have been returned to the party producing it after the disposal of the case by the First Court and, in the interval, before it was produced again on the hearing in the lower Appellate Court, this entry appears to have been made in the 'Remark' column. Strictly speaking, therefore, the entry in the 'Remark' column is not a part of the record in the case, and, if the present appellants wished the lower Appellate Court to treat it as part of the record, a special application should have been made to that effect. Nothing of the kind appears to have been done, and, although we are told that the learned Subordinate Judge's attention was drawn to this 'Remark' column, he makes no reference to it, and it may quite well be that he declined to consider it in the absence of such a special application. We can see no reason for interfering with the lower Appellate Court' finding of fact as to exclusion of the suit lands from the zemindari and we must dismiss this second appeal with costs.

4. We see no reason to interfere with the lower Appellate Court's order as to costs.

5. The Memorandum of Objections is dismissed with costs.


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