Mogadasu Venkatadasu and Others vs Venkamamidi Udayanarayan and Others

Sadasiva Aiyar, J.—The defendants are the appellants in these Second appeals. The plaintiffs are agraharam-dars who claim a right to eject

the defendants (tenants) on the ground that they (the plaintiffs) are the owners of both the kudiwaram and Melwaram rights in the lands in the

occupation of the defendants. Though the plaint does not definitely set out how the plaintiffs own both the warams it is clear from the 13th

paragraph of the District Munsif''s judgment that they claimed both warams as conferred upon their ancestor Dakshinamoorthy Sastrulu by the gift

deed Exhibit A of 1796 executed by the then Zamindar who called himself Raja Manykyarow Bhavanarayana Rao, Sri Desamukhi Mannevaru,

Sirkar Mrithijangaa. I think therefore the only question in this case is whether the plaintiffs obtained both the warams under this grant exhibit A or

the melwaram alone. If they obtained the melwaram alone, the kudiwaram not being granted to them and they not having claimed the kudiwaram as

having belonged to them at the time of the grant, the village is prima facie an estate u/s 3(2)(d) of the Estates Land Act and the Civil Court has no

jurisdiction over these suits. The presumption in all cases of grants of inam is that only the melwaram was granted as such inam. I think that courts

should always start with that presumption in these cases, unless the grant deed clearly confers kudivaram rights also. In this case the grant deed

(Exhibit A) itself indicates that there were inhabitants residing in the village at the time of the grant and it excludes Savaram or home-farm lands

from the gift, and though it is a grant with all the Ashtabogam it has been held in Parankusa Zatindra Mahadesikaswami v. P. Subramania Pillai

(1914) 26 I.C. 117 that a grant with Ashtabogham does not necessarily import the grant of the kudivaram also in the same manner that it clearly

does not imply the grant of temple and other communal sites. I am therefore clear that the plaintiffs'' case that the grant of 1796 included the

kudivaram rights also cannot be supported. In coming to this conclusion I do not rely upon Ex. I in respect of which the District Munsif seems to

have fallen into two inaccuracies in his judgment, namely (1) that it must have been prepared about 1786 and (2) that the reference to seri in Ex. I

also indicated that there were already tenants occupying these lands. It appears from the Kristna Manual that the Collector Mr. Ram in whose time

the register Ex. I was prepared became such Collector only in 1794 and it further appears that the word "" seri "" might have been used to describe

the village in his time owing to its having been attached about the year 1800 or 1801 for recovery of arrears of Government Peisheush and Cowles

for the Inam lands were granted to the Inamdars then. (See Ex. N series. Also Kristna Manual, page 320).

Mr. Eamadoss then argued that even if the grant was only of the melwaram it was not a grant of ""land revenue"" and therefore the inam did not

fall within the definition of an estate found in Section 3, C1. 2, Sub-clause (d) of the Madras Estates Land Act, because the said Sub-clause

speaks of a ""village of which the land revenue alone has been granted in inam and not a village of which the melwaram alone has been granted in

inam. This contention seems to have found favour with both the lower courts. If it be held that no inam village granted by a zamindar before the

Permanent Settlement would come under Clause (d) of Section 3 (2) the result would be that as most of the pre-settlement inams would come

under this head (very few having been granted directly by the Sovereign power under whose nominal suzerainty the zamindars held their estates),

almost all such inam villages would be excluded from the purview of the Act. I am not at all prepared to accept this contention. Zamindars were

supposed to have come in as only receivers of land revenue. They considered themselves to possess Royal authority and the pre-settlement inams

granted by them might therefore be well considered by the Legislature as merely grants prima facie of land revenue. When the Inams were

afterwards confirmed or recognised by the British Government they were so recognised and confirmed as grants of mere land revenue made by the

Zamindars. It is also significant that in Clause (d) the kudivaram right is referred to in a subsequent portion of the same sentence in contra-

distinction to ""the land revenue alone"" mentioned in the first portion showing that what the grantor was, in those days, entitled to obtain from the

lands as a feudal landlord was connoted by the word "" land revenue "" though now, it would be called melwaram. "" Next it was argued that as the

jurisdiction of the civil courts would be ousted by treating the inam village as an estate u/s 3 (2) (d), it lay upon the defendant to prove that it was

an estate. I think that the several cases quoted by Mr. Ramadoss and which are found in Indetichinna Nagadu v. Potukanchi Venkatasubbayya

1910 M.W.N. 639 Upadrasta Venkata Sastrulu Vs. Divi Sitaramudu and Others, Srimath Kidambi Jagannathacharyulu Ayyavarlu Vs. Pidipiti

Kutumbarayadu and Another, and Karri, Narasayya v. Nageswara Rao (1915) 31 I.C.209 proceed only to this extent, that it lay upon the

defendants in such cases to prove that the grantee was not the owner of the kudiwaram at the time of the grant. I do not think that these cases

afford any help to the decision of these suits as the plaintiffs do not claim that they were owners of the kudivaram interests in these lands at the time

of the grant, but set up that the grant itself to them was of both kudivaram and melwaram; thus admitting that that they were not the owners of the

kudivaram at the time of the grant.

The next contention of Mr. Ramadoss is that it must be presumed that he has acquired the kudivaram interest subsequent to the time of grant

somehow and that under the exception to Section 8 of the Madras Estates Land Act, these lands had ceased to be part of the inam estate. It has

been held in Upadrasta Venkatasastrulu v. Divi Sitaramulu (1911) 26 M.L.J. 885 that that exception applies only to acquisitions of kudivaram by

means of transfer, succession or other modes ejusdem generis and not by means of relinquishment of his holding by the tenant. Mr. Ramadoss

however argued that we can presume acquisition even by the former modes on the finding of the lower courts that nobody else was allowed by the

Inamdars to require occupancy rights in these lands and that they have been claiming occupancy right for several years past. He relied especially

upon the cases in Virabhadrayya v. Sonti Venkanna (1913) 21 M.L.J. 659 and Ponnusami Padayachi v. Karuppudayan (1911) 26 M.L.J. 285.

As regards the case in Virabhadrayya v. Sonti Venkanna (1913) 21 M.L.J. 659 Benson and Sundara Aiyar, JJ., express the opinion that on the

facts found in that case, the agraharamdars ""must be taken to have been entitled to the kudivaram at the time of the inam grant"" and not that they

can be presumed to have subsequently acquired it. Thus the inamdars preventing their tenants from acquiring kudivaram and claiming kudivaram in

themselves for several years can be used by the lower courts only to infer that the agraharamdars were entitled to kudivaram at the time of the

grant, but, as I said already, on the pleadings in these cases, the question of the inamdars being entitled to the kudivaram at the time of the inam

grant does not arise.

As regards the case in Ponnusami Padayachi v. Karuppudayan (1911) 26 M.L.J. 285 the opinion of one alone of the learned Judges (Miller, J.)

can be relied on by the plaintiffs as laying down the broad proposition that the inamdar must have the occupancy right when the tenants have no

occupancy rights in themselves. I must respectfully differ from such a broad proposition. As I said, it is open to the lower courts to infer from such

a state of facts, only this, that at the time of the grant, the grantees had the kudivaram right. But even as regards such a presumption speaking for

myself, I would not draw such an inference from that fact alone, if I was the Court of First Instance, knowing how inamdars and zamindars in the

northern districts have always tried to deny occupancy rights to their tenants and to prevent their tenants from claiming such rights. Inamdars might

very well be asked to establish that by transfer or succession &c, they got the kudivaram right subsequently where it was admitted or proved they

had not got the kudivaram right at the time of the grant.

In the result, I am of opinion that the village is an estate u/s 3 Clause 2(d) and reversing the decision of the lower appellate court, I would order

the return of the plaints in all these suits for presentation to the proper Revenue Court. The plaintiffs must pay the defendants'' costs throughout.

Spencer, J.

I agree. I desire only to say a few words on the last question, viz., whether the agraharamdars can be regarded as having acquired by

relinquishment any kudivaram right which they had not at the time of the grant. The first question to be decided here is whether these suits are

cognisable by a civil court or by a revenue court. For the purpose of deciding it point it is necessary to see whether at the time of the grant the inam

was given to a person not owning the kudivaram. If the plaintiffs intended to rely on the exception to Section 8 of the Madras Estates Land Act for

ousting the jurisdiction of the revenue court, it was necessary that they should have advanced a specific case to show by what acts they acquired

the kudivaram interest of their ryots and became entitled to both varams. But it was not the plaintiffs'' case in their plaints that they had a grant only

of the melvaram and that they subsequentlv acquired kudivaram right as regards all the lands comprised in these suits. It was their case that they

got both the melvaram and the kudivaram rights under the grant. I therefore agree that the civil courts had no jurisdiction to entertain these suits and

the plaints must be returned for presentation to the court having jurisdiction.