1. These appeals relate to three service Inams, attached to the offices of Nattanmai Karnam, and Kavalgar in the Melmandai zemindari. They cannot now be localised. It appears that the Inam, Deputy Collector, under orders of the Board of Revenue, has registered them in the names of the proprietors of the zemindari (of whom plaintiff is one) showing the full assessment against each. We think that this registration undoubtedly implies (as the 'plaintiff's Vakil suggests) liability to pay to Government the whole or some portion of the assessment for the Inams: and that if, as the plaintiff contends, he is not liable to such payment, it is open to him to bring the present suit.
2. We are farther of opinion that unless it is shown (whether by direct evidence, admission or inference) that the lands are in the possession of the plaintiff, either immediately or through a tenant, they cannot be registered in his name against his will.
3. As regards the Kaval lands, item No. 3, there is a distinct finding of fact in both the lower Courts that they are in the possession of the plaintiff. We cannot say that this finding is not justified by the evidence on record, and it must be accepted. If the lands are in the plaintiff's possession, he cannot object to their registry in his name.
4. The Karnam's Inam was found by the District Munsif not to be in the plaintiff's possession. The learned Subordinate Judge has upset this finding (vide paragraph 8 of his judgment) but he bases his decision solely on what he terms the legal presumption that the plaintiff has been in possession if he does not show that any one else has been holding the lands. We do not find any ground for such a presumption, which appears to be based largely on a misreading of one document, Exhibit J. This merely shows that the plaintiff, as 2/3rds proprietor of the zemindari, objected to the holding of the Velayudapuram Mitta being entrusted with the duty of collecting quit-rent on all the zemindari Inams, merely because they happened to be situated among the 248 kottahs of wet lands which had been separated off as the Velayudapuram Mitta. This was a reasonable objection; but it does not in any way justify the presumption that the plaintiff was in possession of any of the said Inam lands. If any presumption arises as to the person who swallowed up these Inams, it is against the proprietor of the Mitta, within which they form so many 'enclaves.' The finding of the Subordinate Judge on this point must be set aside and that of the District Munsif restored.
5. So far then as these items are concerned, the matter is clear. The plaintiff is not entitled to any relief as regards item No. 3 and as regards item No. 1, the decree of the District Munsif must be restored.
6. There remains item No. 2, the Nattanmai Inam. There is no dispute as to possession here: but it is argued on behalf of the plaintiff that this item was enfranchised by the Inam Commissioner in 1365 and converted into a free-hold in favour of the Poligar (the plaintiff's predecessor-in-title), subject only to the liability to pay half the assessment as quit-rent. If so, there can be no question that the Inam Deputy Collector was precluded from dealing with it under Section 17 of Act II of 1894. Tue order of the Commissioner, as recorded in Exhibit If, is somewhat ambiguous and it is urged by the learned Government Pleader that it does not imply enfranchisement or acceptance of the Inam Deputy Collector's recommendations. A reference to the judgments of the lower Courts shows that the interpretation of this very important order has received very inadequate attention and we are, therefore, compelled to call for a finding on the following issue from the Subordinate Judge. Was the Nattanmai Inam (item No. 2) enfranchised by the Inam Commissioner in 1865, and, if so, on what terms? The finding should be submitted within two months, and seven days will be allowed for filing objections.
7. Fresh evidence may be adduced.
In compliance with the above order, the Subordinate Judge of Tinnevelly submitted the following
8. In these cases, I have been directed by the High Court to submit a finding on the following issue:
Was the Nattanmai Inam (item No. 2) enfranchised by the Inam Commissioner in 1865 and if so on what terms?
9. The plaintiff has not adduced any fresh evidence. On behalf of Government, four witnesses have been examined to show that no quit-rent was levied from the plaintiff in respect of this Inam land. Defendant's 2nd witness, Muthuknmarasamy Pillai, has produced the village accounts from Fasli 1313 (marked as Exhibit III series) relating to Melmandai village in which the Inam land in question is situated. Defendant's 3rd witness is the Karnam of the village for the last 40 years. The accounts, Exhibit III series, were sent by him to the Taluk office. Exhibits III to III(c) are accounts showing the demand of quit-rent. No quit-rent is mentioned in this account in respect of the suit Nattanmai Inam. It is item No. 14 in the road-cess account, Exhibits III(d) to III (g) and road-cess alone is mentioned in it. Exhibits III(b) to 111(d) show that this Nattanmai Inam land, item No. 14, is not classed as Ayan or assessed lands. The Karnam swears that no quit-rent was ever collected on account of this land. The Village Munsif, examined as defendant's 5th witness, supports the Karnam's statement. Defendant's 4th witness is the record clerk of the Collector's office. He has produced the Vernacular Inam register, Exhibit IV, relating to Ottapidaram Taluk. The Inams in Melmandai village, for which quit-rent is levied, are described as Nos. 1 to 13. This Nattanmai Inam is not found in this account. If the Inam was enfranchised in 1865, quit-rent would have been levied on it. Plaintiff's Vakil says that the quit-rent was paid along with the paisheush payable by the plaintiff under the Permanent Settlement. He is unable to say what the amount of quit-rent is. In the Inam register extract, Exhibit II, the amount of quit-rent is not mentioned. If, as a matter of fact, the plaintiff is paying quit-rent for this Inam, he could have proved it by satisfactory documentary evidence. I see no reason to disbelieve tho evidence on the side of Government to the effect that no quit-rent was ever levied on account of this Inam, In support of his contention, the plaintiff solely relies on the remark in column 11 of the Inam register, Exhibit If, quoted in para. 10 of the District Munsif's judgment. The amount of quit-rent, one half of which the Deputy Collector recommended should be levied was evidently not ascertained. Prom the Commissioner's order, 'confirmed in the name of the Palayagar,' it cannot be inferred that this Inam was enfranchised. The Inam was confirmed in the name of the plaintiff's predeceases-in-title as it stood before. This was a village service Inam to which Regulation VI of 1831 applied. Under Madras Acts IV of 1882 and IV of 1886, Section 2, 'the title-deed issued by the Inam Commissioner or an authenticated extract from the register of the Commissioner or Collector shall be deemed sufficient proof of the enfranchisement of land previously held on Inam tenure or service tenure.' The plaintiff has not produced any title-deed and the register extract does not show that the Inam was enfranchised. The right of Government to resume the Inam has, therefore, not been extinguished.
10. These second appeals coming on for final hearing, after the return of the finding from the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following