1. This is a batch of nine appeals. The same point arises in all the appeals. The plaintiff's suit is for a declaration that the Record of Eights made under Chap. XI of the Estates Land Act is incorrect in several particulars. The 1st defendant is the Rajah of Pithapuram, the other defendants are the tenants of the plaintiffs. Several issues were raised in all the cases and they were found by the Subordinate Judge in favour of the plaintiffs. The 1st defendant alone appealed against the decree of the Subordinate Judge. The tenants who were found not to have any occupancy right in the lands did not appeal against the decree of the Subordinate Judge. The District Judge has reversed the decree of the Subordinate Judge and dismissed the plaintiffs' suit. The plaintiffs have preferred these second appeals.
2. The main question in these appeals is whether the suit lands were included in the assets of the Pithapuram Zamindari at the time of the Permanent Settlement so as to form part of the estate. The suit lands were enjoyed before the Permanent Settlement of 1802 by Desapandyas. Despandya is described in the Fifth Report on East India Affairs, Vol. III, page 24, thus:
The next revenue officer of rank, and of the same class with the desmook, though of greater utility and sometimes of more extensive local jurisdiction, was the despandeah cannongoe, or provincial register. To ensure the honest full discharge of a very important trust, a russoom of two and a half per cent, on the revenue, ascertained by his own vouchers to have been collected throughout the country was assigned to the public register, his heirs, and deputies in perpetuity.
3. At the time of the Permanent Settlement the Government abolished these offices and added the russoom of two and a half per cent, of the total collections to the peishcush of the Pithapuram Zamindari. The District Judge holds that by including the russoom in the peishcush or permanent zummah payable by the Zamindar, the lands in the possession of the Desapandyas became part of the Zamindari. Mr. Rama Rao for the appellant contends that the documents relied upon by the District Judge for his finding, Exs. II, III and IV, have been misconstrued by him and they do not bear out the inference drawn from them.
4. Ex. II is the kabuliyat executed by the Zamindar of Pithapuram on 6th May, 1903. That all lakhiraj and alienated lands were excluded from the Zamindari is clear from the following recital:
Exclusive of lakhiraj lands (lands exempt from the payment of public revenue) and of all other alienated lands paying a small quit rent (which quit rent unchangeable by me is included in the assets of my Zamindari or estate).
5. It is urged for the appellants that the lands in the possession of the plaintiffs are such alienated lands. There is no evidence that these lands were granted as manyams by the Zamindar. It is admitted that the Desapandyas held these lands from long before the date of the Permanent Settlement. An attempt was made by the 1st defendant to show that these lands were granted by him after the Permanent Settlement but that is found against by the lower Courts and no serious attempt was made before me to dispute that finding. Mr. Krishnaswami Aiyar attempted to justify the 1st defendant's contention by showing that the Zamindar recognised the persons in possession of the lands owned by the Desapandyas as inamdars and appropriated the pension paid for the maintenance of the Desapandyas who were thrown out of office. Assuming it was so, that would not make the lands grants by the Pithapur Zamindar. The question is whether the Government, by including the russoom in the amount payable by the Zamindar to the Government, made the lands in the possession of the Desapandyas part of the estate of Pithapuram. What appears from Ex. IV is the Government added what was payable to the Desapandyas for their collection of the revenue to the amount payable by the Zamindar and made him collect the revenue; in other words, the Government was entitled only to 97 1/2 per cent, after deducting 2 1/2 per cent, due to the Desapandyas for collection and when their services were dispensed with the 2 1/2 per cent was added to the amount payable by the Zamindar.
6. When the Government dispensed with the service of the Desapandyas they proposed to give them a pension for life. This is clear from Ex. III, letter to the Collector, dated 8th December, 1802:
The Governor in Council, at the recommendation of the Special Commission, has been pleased to abolish the office of Desapandya in the 1st Division of Masulipatam and to incorporate the russooms of that office with the permanent assessment. Considerations of indulgence to the individuals filling the office of Desapandya induced the Commission to recommend that pensions for life should be granted to the individuals; that recommendation having been approved, the Commission desire you will furnish them with a list of the Despandyas and the amount of the annual pension you will propose should be granted to each.
7. The contention of the 1st defendant is that the pension was received by the Zamindar and he allowed the Deshapandy as, whose services were dispensed with, to be in occupation of the lands in their possession and is based on a statement contained in Ex. B. But the Zamindar did not resume the Desapandya inams. He entered into a compromise with the holder of the inams, and agreed to take their pensions and allow them to enjoy their lands as usual. There is no evidence as to what really happened at the time. No accounts have been produced by the 1st defendant to show how much was received in respect of pensions and what arrangements were made with the persons in occupation of the lands. It appears that the Desapandya inams were mixed up with the Karnam inams and Mr. Chenchal Rao separated the Karnam inams from the Desapandya inams but did not make any settlement as regards the Desapandya inams. The concluding sentence in his report is, 'Of course by deducting it from our accounts, we do not confer any new power on the Zamindar to resume their land without their consent or the decree of any judicial tribunal.' It is clear that nothing was done with regard to them at the time of the inam settlement.
8. The contention of Mr. Krishnaswami Aiyar is that when the fuasooms or man-yams were included in the assets or peishcush of the Zamindari it must be considered that the lands became part of the Zamindari. If the lands were originally granted by the Zamindar to the Desapandya and were resumable by him no doubt this argument would be of considerable force. But from the Fifth Report, Vol. III, page 24, it is clear that the Desapandyas were in unauthorised occupation of lands and enjoyed their income. 'In lieu of this commission, however, at present there are a number of inferior Desapandyas claiming a right to free mirassi, hereditable villages, or to others held by a tenure called bilmokta or tatoodarry, at a low unalterable rent, but all these we apprehend to be improper, unauthorised alienations made by the desmooks or other officers of Government in power, to purchase greater defalcations in their own favour from the stated dues of the exchequer.' In the absence of definite evidence that the Zamindar granted these lands, it must be bold that the lands were occupied by the Desapandyas improperly and the then Government of the country were either unable or unwilling to disturb their possession, and at the time of the Permanent Settlement they were not dispossessed of their lands but were evidently allowed to be in possession and the Desapandyas whose services were dispensed with were further remunerated by pensions. In the absence of any evidence as to resumption by the Government, it cannot be said that the Government added these lands to the Zamindari or made them part of it. These lands having been held under the Government were in the nature of ryotwari lands and it is difficult to understand how the Government could by entering into an arrangement with the Zamindar convert a ryotwari holder into a ryot without his consent. It was no doubt open to the Government to dispossess the Desapandyas of the lands in their possession and to hand them over to the Zamindar. But in this case there is no evidence that they were dispossessed by the Government or that the Zamindar entered into any relations with them after the date of the Permanent Settlement. It is open to the Government to enter into an arrangement with the Zamindar to keep the ryotwari tenure as such and to give him the right to collect the revenue payable to Government, but in the absence of clear evidence it should not be lightly held that the Government made a ryotwari tenant a ryot under a Zamindar. The Government have no power in the absence of Legislative sanction to convert a ryotwari tenure into a ryoti tenure in an estate.
9. The appellant relies upon the decision of this Court in support of his contention in C.R.P. No. 199 of 1918 and S.A. No. 1826 of 1917. These two cases arose out of a dispute between Desapandya inam holders and their tenants in the Zamindari of Pithapuram. Sir William Ayling in disposing of C.R.P. No. 199 of 1918 observed : 'The inam was granted by Government prior to the Permanent Settlement and the arrangement effected between Government, Inamdar and the Zamindari at the time of the Permanent Settlement was a private arrangement which did not make the land a portion of the estate.' I respectfully agree with this observation. In S.A. No. 1826 of 1917 Ayling and Krishnan, JJ., approved of the view of the Subordinate Judge that the inams could not be brought under the category of 'estate' within the meaning of the Estates Land Act. It follows that within the ambit of an estate there could be ryotwari holdings, and in such oases the Zamindar collects the amounts due to the Government as observed by the Subordinate Judge as only an agent for the Government.
10. The absence of any evidence to show what was done after the settlement by the Zamindar in respect of these lands is strong proof of the fact that these lands were not included and made part of the estate. Exs. II, III and IV do not bear out the construction placed upon them by the District Judge. There is no evidence that any amount was paid to the Zamindar by the holders of these lands for their being in possession of them. Granting for argument's sake that the Zamindar did receive the pension payable to the Desapandyas during their lifetime, the mere fact that he received it could not have changed the character of the tenure of these lands. I hold that the finding of the District Judge that the suit lands were included in the Pithapuram Zamindari at the time of the Permanent Settlement so as to form a part of the Pithapuram Estate is not warranted by the recitals in Exs. II, III and IV and I hold there is no evidence to show that these lands became part of the Pithapuram Estate.
11. The next point urged for the appellant is that the District Judge ought not to have dismissed the plaintiff's suit inasmuch as the other defendants had not appealed against the decree of the Subordinate Judge. Mr. Krishnaswami Aiyar for the respondent contends that the Court has power to give a decree in favour of the persons who have not appealed under Order 41, Rule 33 of the Code of Civil Procedure. In this case the 1st defendant's contention is that the lands form part of the Zamindari. The contention of the other defendants is that they have got permanent occupancy right in the lands, Even though the lands form part of the Zamindari the plaintiffs' may have a right to the kudivaram as well, as the plaintiffs' right to have both varams is not inconsistent with their lands being a part of the Zamindari. There is no law against a person having a ryotwari tenure within the ambit of a Zamindari. It does not necessarily, therefore, follow that simply because the plaintiffs' lands are in the Zamindari, the tenants have occupancy right. Inasmuch as the Subordinate Judge found on the evidence that the tenants had no occupancy right and inasmuch as they did not choose to appeal against his decree it was not proper for the District Judge to have dismissed the suits. The upholding of the contention of the 1st defendant would not in any way militate against disallowing the contention of the tenants who are the other defendants. That being so, in any view of the case, I think the District Judge's judgment as regards the relief claimed by the plaintiffs against their tenants cannot be upheld.
12. In the result the appeals are allowed and the decree of the District Judge is set aside and that of the Subordinate Judge restored with costs in this Court as well as in the lower Appellate Court.