Mahaboob Sir Frajavantu Sri Rajah Parthasarathy Appa Rao, Savayi Asva Rao Bahadur, Zamindar Garu (dead) and Another vs The Secretary of State for India in Council and Others

Ramesam, J.—These appeals arise out of suits brought by Rajah Parthasarathi Appa Rao, Zamindar of one-third share of the Zamindari of

Nidadavolu. All the suit villages are situate in the Amberipetta purgana of the Zamindari. The plaintiff files these suits for a declaration that the

Government is not entitled to enfranchise certain service inams in these villages on the ground that they are included in the assets of the Zamindari

and not excluded from them at the time of the Permanent Settlement and that the right of resumption is in the Zamindar and not in the Governmeut.

So far as the inamdars are concerned, the plaintiff alleges that he is entitled to resume the lands whenever their services are not required and that he

gave notice to them to quit the suit lands. Similar questions have arisen before us in connection with a number of Zamindaries in the Kistna District.

Those cases are Section As. Nos. 648 to 832, 974 to 1058 of 1927, and other connected second appeals and the questions of law arising in

those cases were elaborately discussed by us in our judgments in those second appeals and I will have to refer in the course of this judgment to our

earlier judgment. The Subordinate Judge of Ellore who tried the suits dismissed them and the plaintiff appeals.

Two important questions arise in suits of this kind : (a) on whom does the burden of proof lie? Is it for the Zamindar to prove that the suit lands

were included in the assets of the Zamindari at the time of the Permanent Settlement; or is there a prima facie presumption that the lands being

within the ambit of the Zamindari are included in the assets of the Zamindari; or is it for the Government to prove that they were excluded from the

assets of the Zamindari at the time of the settlement? On this question it is unnecessary forme to repeat what I have said in my former judgment,

but, as that judgment has not been reported, it may be convenient to summarise what I have said therein. In the printed copy of that judgment I

discussed this matter at pages 13 to 16. I there show that, though at first sight it looks as if the decision of the AIR 1914 22 (Privy Council) is in

favour of the Zamindar and to throw the ] burden of proof upon the Government, that case relates to Sukinda and Madhupur estates in Orissa and

it somewhat resembles the decision in AIR 1922 168 (Privy Council) which relates Venkatagiri connected this Presidency. These estates have

special history their own, and presumption respect all Zamindaries cannot be inferred from these cases. The general rule is laid down decision

(1926) ILR 53 533 (Privy Council) AIR 1922 168 (Privy Council) According to that decision it is for the Zamiudar to show that the suit lands

were included within the Zamindari in spite of the fact that they are within the geographical limits of the Zamindari. Accordingly I held, that the

burden of proof is in such cases always on the Zamindar.

(b) Question of limitation. This question was discussed by me at pages 21 to 27 of that judgment. There I held, (1) that in a suit by a Zamindar

against Government for a declaration that an enfranchisement by the Government is not valid and binding on the Zamindar the period to''be applied

is not 12 years. In this matter I differed from an unreported judgment of Wallace and Thiruvenkatachariar, JJ., in Appeal No. 355 of 1922; (2) in

general Article 120 will apply to such suits; (3) where the Zamindar was a consenting party to the inam proceedings and raised no objection,

Article 14 may apply; but where the Zamindar had not appeared before the inam Commissioner and had taken no part in the proceedings and files

a suit on the footing that the proceedings are ultra vires then the effect of the order of the Inam Commissioner is not such as to make it necessary

for the Zamindar to set it aside and therefore Article 14 does not apply to such cases. A further question was discussed as to when exactly the

cause of action begins assuming that the period of limitation is six years under Article 120. I held that where the Zamindar took no part in the

proceedings and studiously kept himself aloof and afterwards files a suit for a declaration on the ground that the proceedings are ultra vires, the

cause of action does not actually arise until he is injuriously affected by the enfranchisement, i.e., until there is a definite refusal by the inamdars to

perform the services for which the inams were originally granted. This portion of my judgment is at pages 21 to 23. I made observations to the

effect that, even if quit-rent is collected by the Government from the inamdars directly or indirectly through the Zamindar giving 10 per cent, to the

Zamindar as commission and in the meanwhile the inamdars continued to render service to the Zamindar this does not necessarily compel the

Zamindar to sue though if he likes he may sue, i.e., it does not give rise to a compulsory cause of action for a declaratory suit though it may afford

an optional cause of action for a declaratory suit. A compulsory-cause of action arises when for the first time he is injuriously affected by the

enfranchisement. Once such a compulsory cause of action arises, a suit brought more than six years from that date would be barred; AIR 1924

150 (Privy Council) In the last case, it was held that one cannot evade limitation by making a second application to the Government and bringing a

suit within six years from the rejection of the second application. Here I may mention that in most of the cases with which we were concerned in

those second appeals the Zamindar did not appear before the Inam Commissioner. The only exceptions to the statement were the Mokhasa of

Kondaparva and the Gampalagudam estate. In the case of Kondaparva the Mokhasadar was present and agreed to the enfranchisement. I held

that he was barred under Article 14 (see page 27). As to Gampalagudam estate except as - to one village (Amumalalanka) the zamindar agreed to

the lands being enfranchised (page 27 of the former judgment) and I held that the suits were barred under Article 14 also. In all the other cases I

held that Article 14 did not apply and Article 120 applied.

Now in the suits before us it is unnecessary to discuss the question whether Article 14 applies because in the view I am taking, even if Article

120 applied, except in the case of three villages all the suits would be barred by limitation. What happened in these cases is this. The notification by

the Government was on 1st October, 1909, and the date fixed u/s 19 of Act II of 1894 was 1st July, 1910. The Zamindari was then the subject of

a litigation. The present Zamindar appellant Rajah Parthasarathi Appa Rao filed a suit for the recovery of one-third share of the Zamindari. The

matter went up to the Privy Council where the Zamindar finally obtained a decree for one-third share. Vide 18 CWN 554 (Privy Council) It is

admitted before us that during all this litigation the estate was being managed by a Receiver. The Receivership terminated in 1916 and the plaintiff''s

share of the estate was made over to him in the same year (vide the deposition of P. W. 1). When the enfranchisement notice was given to the

Receiver, the Receiver actually sent his tanedar to appear before the Inam Commissioner and make a statement. In most of the cases in which he

appeared he had no objection to the enfranchisement but wanted the kattubadi on the inams to be excluded from enfranchisement. Afterwards no

document was produced to make out the case for exclusion of kattubadi with the result that even kattubadi was not excluded.

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It may be that if the Zamindar himself was in charge of his own estate he would not have consented but, as the Receiver represented the person

who was ultimately found to be the owner of the estate and as his bona fides were not questioned, his consent binds the Zamindar. At any rate if it

is intended to file a suit for a declaration on the ground that the Receiver committed a mistake, the cause of action must have arisen the moment the

Zamindar was affected by the consent. Now the Zamindar files all those suits in April 1922. According to him the cause of action arose when

notice was issued to the defendants on the 16th October, 1921, and the defendants disregarded it. In my opinion the cause of action accrued to

him in 1910 when the enfranchisement proceedings were made and there cannot be a new cause of action by reason of the notice issued by him in

October 1921 calling upon theinamdars to render service. Some of these inamdars replied to the notice issued by the Zamindar. Ex. WWWWW

series are the notices issued by the Zamindar calling upon the inamdars to render service. The replies given by the defendants are YYYYY series.

In these documents the inamdars say that they are willing to render service and that if the Zamindar has got any complaint it is against the

Government. Besides Ex. WWWWW series the Zamindar sent some circulars asking the inamdars to come and render some particular services

such as entering muchilikas in accounts and recovering arrears of rent. Ex. LXXVII is such a circular issued to the karnam of Dondapadu; Ex.

LXXXVIII to the karnam of Pinakadimi Ex. LXXXVI, (a) to the Karnam of Chidimella; Ex. PPPPP to the karnam of Vanguru; Ex. LXXXVI,

(uu) to the karnam at Chidimella; Ex. LXXVI (tt) to the karnam of Chidimella; Ex. LXXXVIII (w) to the karnams of certain villages. Ex. PPPPP-1

is the reply by a karnam saying that he is very busy and has no leisure. Ex. UUUUU is the report submitted to the Zamindar saying that the

karnams are not promptly attending to their duties. In my opinion all those are collusive proceedings between the Zamindar and the karnams for the

purpose of conferring a new cause of action on the Zemindar in 1921, and that the cause of action accrued to him long ago in 1910, and I think

that these notices and replies should be disregarded. Except in the two or three cases where the tanedar did not appear, in all the other cases the

suits are barred by limitation and should fail on that ground; but I will also discuss the main point on the merits in respect of each village.

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Appeal No. 431 of 1925. - The land now enfranchised is of the extent of 18-54 (acres) the patta being Ex. XCIII. Ex. LI shows that according

to the old accounts it ought to have been 25-52 but the difference is not accounted for. Now going to the old accounts Ex. LLLL of the year 1868

shows 1/4 kathi was kattubadi inam and 3/8 kathi Sarvadumbala. The document also shows that the kattubadi inam was resettlement inam and

also it was wet. But it is not very clear whether it was subject to kattubadi from before the settlement though one may presume it if there is no other

information available in the matter. But coming to Ex. XLV we find under the heading ""Service inams"" for one kathi of wet land a kattubadi of Rs.

4 per putti was imposed in the jamabandi of fasli 1212 at the end of that fasli by Rajah Venkata Nara-simha Appa Rao, though previously it had

been Sarvadumbala. Ex. XLVI practically gives the same information as Ex. XLV and Ex. XLVIII (a) supports Exs. XLV and XLVI regarding the

imposition of kattubadi in 1212. The result is we must hold that all the land belonging to karnam was sarvadumbala originally and on a portion of it

- one kathi--kattubadi was imposed on the crop after the permanent settlement, i.e., about May or June 1803 and the inam is pre-settlement The

inam is resumable by Government.

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Madhavan Nair, J.

On the general question of ""Burden of Proof and ""limitation"" arising in cases of this description, I have already expressed my opinion in detail in

the separate but concurring judgment which I delivered in Second Nos. 648 to 832 and the connected Second Appeals. The arguments now

addressed to us have not persuaded me in altering the views therein expressed.

In the appeals before us, I agree with my learned brother on the question of limitation regarding the applicability of Article 120 of the Limitation

Act to the facts of the case and also on the merits, and have nothing to add.