Malyala Surayya and Others vs Rajah Saheb Meharban Idostan Sree Rajah Ravu Venkata Kumara Mahipathi Surya Rao Bahadur Garu, Sirdar, Rajahmundry Sircar and Rajah of Pithapuram

Devadoss, J.—This is a batch of nine appeals. The same point arises in all the appeals. The plaintiffs'' suit is for a declaration that the Record

of Rights made under Chap. XI of the Estates Land Act is incorrect in several particulars. The Ist 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 Ist 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.

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. Desapandyas

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.

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.

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).

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 Ist 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 Ist

defendant''s contention; by showing that the Zamindar recognised the persons in possession of the lands owned by the Desapandyas as inamdars

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 212 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.

When the Government dispensed with the services 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 Ist

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 those individuals; that

recommendation having been approved, the Commission desire you will furnish them with a list of the Desapandyas and the amount of the annual

pension you will propose should be granted to each.

The contention of the 1st defendant is that the pension was received by the Zamindar and he allowed the Desapandyas, whose services were

dispensed with, to be in occupation of the lands in their possession and is placed 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 Ist 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.

The contention of Mr. Krishnaswami Aiyar is that when the russooms or manyams 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 held 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.

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 Zamindar 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 cases the Zamindar collects the amounts due to the

Government as observed by the Subordinate Judge as only an agent for the Government.

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 life-time, 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.

The next point urged for the appellant is that the District Judge ought not to have dismissed the plaintiffs'' 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 Ist

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 Ist defendant would not in any way militate against disallowing the 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.

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

the Court as well as in the Lower Appellate Court.