1. Appeal Suit No. 148 of 1910 is an appeal by the defendants Nos. 1 and 3 from the decree in Original Suit No. 17 of 1909 on the file of the lower Court, and the plaintiffs have filed an objection memo. Appeals Suits Nos. 154 and 155 are cross-appeals by the plaintiffs and defendants Nos. 1 and 2, respectively, in Original Suit No. 16 of 1909 on the file of the lower Court. These suits are closely connected with each other and refer to certain items of land, which were originally classed as 'karnam manibham' or karnam service inam in the village of Sathamangalam, and have been recently enfranchised by the Revenue Authorities in the names of defendants in Original Suits Nos. 16 and 17 of 1909. The plaintiffs in both the suits are the present karnam of the village and his minor son, They sue both for the kudivaram and melvararm rights in the items and contend that they should not have been enfranchised in the names of any of the defendants in the two suits.
2. The District Munsif has clearly made certain mistakes of law in his judgment. In paragraph 19 in his judgment in Original Suit No. 16 of 1909, he applies the ruling in Venkatanarasimha Naidu v. Damdamudikatyya 20 M.k 299 to the suit land, whereas that ruling has only application to lands in zemindaris and not to lands like the suit lands which are service inams. The ruling in Marapu Tharulu v. Telukula Neelakanta Behara 2 M.L.T. 470 applies to an inam of this kind.
3. Another mistake which the District Munsif has made is that he seams to think that the possession of a tenant or his alienee becomes adverse to that of the landlord as soon as the tenant executes a document, which shows that he claims an adverse title. This is the principle on which the District Munsif has held in Original Suit No. 16 of 1909 that the plaintiffs have lost the kudi right in the items covered by that suit and have not lost it in the items covered by Original Suit No. 17 of 1909. In coming to these conclusions, the District Munsif has clearly overlooked the ruling in Srinivasa Ayyar v. Muthusami Pillai 21 M.k 246 where it is clearly laid down that 'a tenant repudiating the title under which he entered becomes liable to immediate eviction at the opinion of the landlord, but that until the landlord indicates that he intends to exercise his option, the tenancy subsists.'
4. The District Munsif, in my opinion, is further mistaken in his finding of fast on issue No. 2, which raises the question whether the original grant of the service inam, consisted of the rent of the land only or of the land itself free of assessment. According to the plaintiffs' case, the inam was granted by the Carnatic Kings. There is no document to evidence the original grant. The earliest documents, which have been properly proved and which have any reference to these lauds, are Exhibits B and B-l, Jamabandi Chittas for Faslis 1211, 1212. There were prepared long after the original grant. In these documents, the suit lands are described as Kanakku Subbier's rent-free inam. Exhibit B-2 is an extract from the Olugu account for Fasli 1215, which merely shows the areas of the plots and the measurements. Exhibit B-3 is the inam statement put in by Sabbier for Fasli 1217 and shows the total extent of the lands in cawnies together with assessment. Then later on, we get Exhibits M and C which are respectively extracts of the inam statement and the Inam Register of the village which were prepared in 1853. These documents give the same extent and assessment of the lands. In column 6 of Exhibit C, reference is made to the Chittas of Faslis 1212 and 1217, and it is said that the grant is tax-free.
5. The District Munsif has assumed that the land itself must have formed the subject of the grant, because these documents describe the suit land as an inam, and contain no mention of the fact that only the assessment of the land constituted the inam. The District Munsif in coming to this conclusion has overlooked the rulings which he himself quotes in paragraph 19 of his judgment from which it is clear that prima facie such inams should be taken to be assignments of the State share in the lands, i.e. of the assessment only. Ha has also overlooked the-caution contained in the preamble to the Madras Inams Act VIII of 1869, in which it is remarked that 'the terms of title-deeds granted by the Inam Commissioner in many cases appear to convey more extensive rights than could be legally given.' The Act, therefore, provides that anything contained in any title-deed shall not be deemed to define, limit, infringe or destroy the rights of any description of holders or occupiers of the land or to affect the interests of any parson other than the inam holder under the title-deed.
6. It was contended for the plaintiffs that because Exhibit B-3 and the subsequent documents, Exhibits M and C, show the assessment on the land was fixed, the assessment alone could not have constituted the inam; because if that were so, the inamdars would have been entitled to collect that assessment only and nothing more from the occupiers, whereas the defendants admit that they have been paying half the produce as melvaram to the inamdars, i.e., plaintiffs. This contention, however, entirely overlooks the fact that there is nothing to show that any assessment was fixed on the lands at the time of the original grant. It is true that even the earliest documents, B and B-l, refer to 'panams' which seem to be the assessment on the land, but these documents are as recent as 1802 and the grant was made long before that time. It is a matter of common knowledge that money assessments were not in existence in early times in this district. It is probable that, in the time of the Carnatic Rulers, the State took as its share a portion of the produce, and that the grantees of the inam continued to take that share, although money assessments were fixed for lands in the village subsequently and the assessment which inam lands would be liable to, if not rent-free, was at that time entered in the registers. The argument of the plaintiffs' Pleader, that because a money assessment is mentioned in the accounts and because the plaintiffs have admittedly not been receiving that assessment but melvaram from the occupiers, the land must, therefore, have been granted as service inam, entirely falls to the ground. When the State share in land was granted as inam, the State had no longer any concern with the occupiers or kudivaramdars of the lands, and there was, therefore, no necessity to refer to them in the old accounts. The area and description of the land was entered in the accounts; the assessment it would bear if the assessment had not been granted as inam was also entered and the name of the inamdar was then entered. No other entry was necessary. No presumption arises from such entries that there were no kudivaramdars on the land having occupancy-rights. The State had nothing to do with these men after granting its share in the land to the inamdar, who had to make his own arrangements to get his share from the occupiers. There was no necessity, therefore, for the State account to refer to these occupiers at all.
7. Plaintiffs also rely on two old documents, Exhibits P and P-l, to show that the ancestor of Subbier was a cultivating tenant of the suit land at one time. I hold that these documents have not been proved to be public documents or to have come from proper custody and I reject them. The District Munsif himself has not based his judgment upon them. The burden of proving that the land itself constitutes the inam lies heavily on the plaintiffs, and not only do the admissible documents, which they rely on, not establish this fact, but it is clear from the 1st plaintiff's admission in Exhibit VII that he had no idea of putting forward such a case when he made the statement, Exhibit VII, on the 8th August 1905. It was only subsequently, when he learnt that the Revenue Authorities were going to enfranchise the inams in favour of the kudivaramdars, that he changed his attitude and contended that he was the owner of the kudivaram and not merely a melvaramdar as he admitted in Exhibit VII.
8. Further in his evidence, the 1st plaintiff admits, as pointed out in paragraph 29 of the District Munsif's judgment in Original Suit No. 16 of 1909, that he does not know how the defendants or their ancestors got into possession of any of the suit lands. The defendants in Original Suit NO. 16 have been dealing with the kudi right as their own under Exhibits VI series so long ago as 1872. The mere fact that they refer to their right in the land as 'Olavadai right' in Exhibit VI-b cannot be taken as an admission that they had no occupancy-right and were tenant sat-will, for, there is evidence to show that there is some doubt as to what the ryots mean by the expression 'Olavadai right.'
9. I should also observe that Exhibits O series, on which the District Munsif relies to prove the plaintiffs' right to the kudivaram right throw, no light on the subject. P.W. No. 1, the hakdar the village, admits in his evidence that land-cess pattas like Exhibit O series, are always issued to the mdvaramdar whether he has a kudi right or not.
10. In both the suits, I hold that the plaintiffs have not proved their title to the kudivaram right and are not entitled to cost the defendants from possession.
11. It was contended by the defendants' Vakil that as the inams are enfranchised and as a separate salary has been fixed for the karnam, the plaintiffs are entitled to nothing and that the inam, title-deeds have been rightly issued to the defendants. This contention is, However, clearly untenable and there is nothing in the Land Estates Act to support it. The effect of the enfranchisement of a service inam is clearly laid down in Gunnaiyan v. Kamatchi Ayyar 26 M.k 339. When it is enfranchised by the imposition of a quit-rent, the resumption by Government simply consists of so much of the assessment as is equal to the quit-rent, neither the land nor the assessment in excess of the suit rent being resumed. The enfranchisement only converts the inam into ordinary property. The inam title-deeds should clearly have been granted in this case to plaintiffs' family, who were the grantees of the inam and not to the occupying tenants. I agree with the District Munsif that it was not necessary for the plaintiffs to join the Inam Commissioner as a party to the suit or to pray in this suit for the cancelment of the Inam Commissioner's order. All that need be determined in these suits is the relative rights of the plaintiffs and the defendants in the suit lands. The plaintiffs are at liberty to obtain from the Revenue Authorities the grant of the necessary title-deed enfranchising the inam in their names.
12. In the result, I hold that in both the suits, the plaintiffs are entitled to the melvaram right and to collect melvaram from the defendants at the same rate as they have been hitherto collecting it subject to the payment to Government of the quit-rent fixed when the inam was enfranchised.
13. The District Munsif has disallowed the plaintiffs' costs on the ground that it was the misleading statement of the 1st plaintiff in Exhibit VII which led to the mistake committed by the Inam Commissioner and to the necessity for these suits. I am unable, however, to take this view. I think the plaintiff's original statement, Exhibit VII, represents what is really the fact, viz., that he and his son are only melvaramdars of the suit land. The mistake in the issue of the inam title-deeds has been made by the Officers of the Inam Department. Although the plaintiffs have claimed too much in these suits by setting up a title to the land itself as well as to the melvaram, the defendants have also unreasonably opposed the plaintiffs' claim by contending that they had a right to nothing. I think the fairest way, therefore, would be to allow the plaintiffs proportionate costs throughout and direct the defendants to bear their own costs throughout.
14. In the result, the decrees of the lower Court will be modified in accordance with the above findings and in other respects they are confirmed and the appeals and the memorandum of objections dismissed.
15. The parties appealed to the High Court.
(In Second Appeals Nos. 325 and 326 of 1911).
16. So far as the principal question in Second Appeals Nos. 325 and 326 of 1911 is concerned, we see no reason to differ from the finding arrived at by the lower Appellate Court; the expression 'Sudda inam' occurring in the documents referred to by the Appellate Court does not show that the inam consisted of the land itself and not merely of the melvaram. The meaning of the expression is merely that there was nothing payable to the Government in consideration of the inamdar's possession of the land. It is argued that the finding with regard to plaintiff's share of the profits cannot be sustained in law. The Appellate Court did not deal with the question in its judgment, but merely said that the memorandum of objections was dismissed. The District Munsif evidently intended to award the amount spoken to by Chokkalingam Pillay, the 2nd witness for the defendant. That witness stated that both kudivaram and melvaram together amounted to 10 Kalams per acre. The District Munsif evidently made a mistake in making the calculation and thought that 10 kalams was the yield per cownie (which is about 1 1/3 acres). The decree, therefore, with respect to the melvaram due to the plaintiff must be corrected by awarding 15 1/2 kalams a year in Original Suit No. 16 of 1909 and 18 1/3 kalams in Original Suit No. 17 of 1909. The price of a kalam, was taken to be Rs. 5. The amount due to the plaintiff will be calculated at that rate.
17. The plaintiff will also be entitled to a decree for the melviram from the date of the suit until the end of Fasli 1321. The lower Appellate Court will males as inquiry as to the amount due to the plaintiff for the period subsequent to the date of the plaint and pass a final decree for the amount found due. With this modification, these second appeals are dismissed with costs.
(In Second Appeals Nos. 311 and 399 of 1911).
18. Mr. Ananthakrishna Aiyar for the appellants in these cases argues that the plaintiffs are not entitled to any decree at all. His contention is that, when the Government enfranchised the lands, the plaintiff's interest in them ceased. In substance, his argument amounts to this: that the Government resumed the inam and made a fresh grant of the inam to the defendants at the same time enfranchising the inam. This is absolutely unsupported by the evidence on record. Exhibit III shows that the Government merely gave up the right of resumption that it possessed and did not resume the inam. The result of the enfranchisement, therefore, was that the title rested where it was before. Prior to the enfranchisement, there can be no doubt that the 1st plaintiff as karnam was entitled to the melvaram in the lands. That title was not in any way disturbed by the enfranchisement. These second appeals are also dismissed with costs.