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CIVIL APPELLATE JURISDICTION : C. As. Nos. 631 to 645 of 1960.

Appeals by special leave from the judgment and,decree dated April 20, 1954, of the Madras High Court in Second Appeals Nos. 1228 to 1242 of 1949.

R. Mahalingier and Ganpat Rai, for the appellants. A. V. Viswanatha Sastri and T. V. R. Tatachari, for the respondents.

1962. February 20. The Judgment of the Court was delivered by S.K. DAS, J.-These are fifteen appeals by special leave. They have been heard together as they arise common question of law and fact and this judgment will govern them all. These appeals arise out of fifteen suits filed by certain inamdars (respondents herein) of a village called Goteru for ejecting the tenants, who are the appellants before us, from various holdings in their possession after the expiry of the period of their leases and for other reliefs, such as, arrears of rent and damages. The lands lie in 'village Goteru, one of the villages in the Nuzvid zamindari. Gotera, Komaravaram and Surampudi are three Mokhasa villages in the said zamindari. It was admitted that the Mokhasas were included in the assets of the zamindari at the time of the permanent settlement in 1802. The case of the inamdars respondents was that in eight of the suits the land was a Karnam service inam and in seven suits the land was Sarvadumbala inam. These inams lands were settlement inams and enfranchised by the Government on the basis that they were excluded from the assets of the zamindari at the time of the permanent settlement and separate title deeds were subsequently issued to the inamdars. According to the inamdars these inam lands were not "estates"

The appellants contended inter alia that the suit lands formed part of the Mokhasa of village Goteru and were included in the assets of the zamindari at the time of permanent settlement. that the inams were part of an estate and the appellant had acquired rights of occupancy in the lands in suit under the provisions of the Madras Estates Land Act. They also raised certain other pleas with which we are not now concerned. The main defence of the appellants was that they had got permanent occupancy rights in the suit lands and therefore, they were not liable to be ejected and the Civil Court had no jurisdiction to try the suits.

The learned District Munsif of Tailuku who tried the suits in the first instance dealt with them in three batches. He held in three separate judgments that the suit lands were pre-settlement minor inams, that they were not included in the assets of the zamindari at the time of the permanent settlement and that they were not "estates" within the meaning of the provisions of the Madras Estates Land Act. The learned Munsif also' held that as there was a clear undertaking to vacate the lands at the expiry of the period of the leases, no notice to quit was necessary. In the result he decreed the suits. The tenants. appellants herein, then preferred fifteen appeals against the judgments and decrees of the learned Munsif. These appeals were heard together by the learned Subordinate Judge of Eluru. By a common judgment delivered on March 29, 1948, the learned Subordinate Judge agreed with the learned Munsif in respect of all the findings and dismissed the appeals. Then, there were second appeals to the High Court of Judicature at Madras. In these second appeals only two points were urged on behalf of the appellants. The first point was that the finding of the courts below that the suit lands were excluded from the assets of the zamindari was vitiated by reason of the burden of proof being wrongly placed on the appellants. The, second point was that the inamdars having concerned in the plaints that the tenants were holding over after the expiry of their leases, the inamdars were not entitled to recover possession without issuing notices to quit as required by law.. With regard to the first point of the High Court pointed out that though it was settled law that the burden was upon the landlord to make out his right to evict a tenant from the holding, sarvadumbala inams or inams granted for public services of a pre-settlement period were ordinarily excluded from the assets the of zamindari at the time of the permanent settlement except in some specific cases, where such lands were as ail exception included in the assets of the zamindari, the exceptions being found in the four western Palayams of the zamindaries of Venkatagiri, Karvetnagar, Kalahasti, and Sydapur and the Mokhasa in Masu- In patam district. Therefore, with regard to pre-settlement Sarvadambala inams or public service inams the person who alleged that they were included in assets of the zamindari bad to prove that they were so included. The High Court then observed that the courts below did not base their judgments on onus of proof, but came to their conclusions on a consideration of the evidence given in the suits ; therefore where the entire evidence was gone into, the question of burden of proof was immaterial. The High Court pointed out that the question whether the predecessors of the respondents herein were granted both the varams or Melvaram only was not raised before it and the contentions of the parties in the High Court centered round the only question whether the suit lands were pre-settlement inams excluded from the assets of the zamindari or whether they were included in those assets. The High Court pointed out that this was really a question of fact and in second appeal the High Court could not interfere with a finding of fact unless there were permissible grounds for such interference. The High Court held that there were no such permissible grounds. However, the High Court referred again to the documentary evidence given in the case, namely, Ex. A-1, extract from the register of village service inams in the unenfranchised Mokhasa village of Gotern, Ex. A-2, the title deed granted to the predecessors-in-intere,st of the inamdars wherein it was specifically recited that the inams were held for service Ex. A-5, a settlement dated December 13, 1942, Ex. A-7, a register of service inams of Goteru dated De-,ember 13, 1949, Ex. A-6, public copy of the village account of Goteru, Ex. B-1, register of inams of village Goteru prepared in 1859,Ex.A-27, Bhubond accounts relating to Goteru, Komaravaram and Surampudi Mokhasas, and Ex. A-28 Zamabandi Pysala Chitta, etc., and came to the conclusion that the inams in question, both Karnam service inams and the Sarvadumbala inams, were per-settlement inams and the documents showed that they were not taken into consideration in determining the assets of the zamindari. On the second question of notice, the High Court came to the conclusion that the appellants herein were not tenants holding over but were persons who continued to be in possession without the consent of the inamdars after the termination of the tenancy; that being the position, no notice was necessary and the suits for eviction were maintainable. In the appeals before us learned Advocate for the appellants has not canvassed the question of notice. He has canvassed two points only: firstly, he has argued somewhat faintly that the finding of the courts below that the service inams were pre-settlement inams and were excluded from the assets of the zamindari was not a correct finding secondly, he has argued that by reason of the amendments made in s. 3 (2) (d) of the Madras Estates Land Act in 1936 and 1945, these minor inams constituted an estate within the meaning of the aforesaid provisions and under s. 6 of the said Act, the appellants had acquired a permanent right of occupancy in their holdings; therefore, they were not liable to be ejected and the Civil Court had no jurisdiction to deal with the suits.

(1) I. L. R. [1954] Madras II6 (2) (1915) 1.

L. R. 39 Madras 683.

This interpretation of s. 3(2)(d) was accepted without question until the decision in Ademma v. Satyadhyana Thirtha Swamivaru(1) where for the first time a different note was struck.It was held therein that where portions of the estate had previously been granted as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not of the whole village. The Legislature thereupon intervened and enacted Explanation 1) with the object of restoring the view of the law which had been hold before the decision in Ademma v. Satyadhyana Thirtha The crucial test to find out whether the subject matter of i grant falls within the definition of an estate under s. 3(2)(d) of the Act is whether at the time of the grant the subjectmatter was a whole village or only a part of a village. If at, the time of the grant it was only a part of a village, then the amending Act makes no difference to this and such a part would not be an estate within the meaning of the term. But if the grant was of the whole .village and a named one, then it would be, an estate. Learned Advocate for the appellants has referred us to the Mokhasa sanad of December 8, 1802. That sanad gives a list% of villages which Goteru is one. The argument of learned Advocate for the appellants is that the inam lands being within village Goteru, they also are "estates" within the meaning of s. 3(2)(d) read with Expla- nation (1).'It, appears to us that this argument is clearly erroneous, There is no doubt that the Mokhasa grant is an estate within the meaning of the s. 3 (2) of the Madras Estates Land Act, and that is riot, disputed , before us. That does not however mean that the mirror inams would also constitute an estate within the meaning of s. 3 (2) (d). As wits pointer out in Mantravadi Bhavanrayanu v. Merughu Venkatadu (2) (1) [1943] 2 M. L. J. 289.