# ALURU KONDA YY A AND ORS v. SINGARAJU RAMA RAO AND ORS

- **Citation:** [1966] 1 S.C.R. 842
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. HIDAYAT· B t:LLAH, J.C. Shah Ands. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aluru-konda-yy-a-and-ors-v-singaraju-rama-rao-and-ors-3643
- **Pages:** 23

## Headnote

Madras Es;ates Land Act (I of 1908), s. 3(2) (d), Explanation I, 11'
am~ndcd by Act 18 of 1936 and Act (2 of 1945)-Estatc-Grcmt of a
named v1Jiage-Jj can be presumed to be of a whole village.
Jn the village of ChaJJayapalarn, there were six inams, namely, the
Challayapalam Shro1rien1 and five minor inams but there was no infonnation as to when the inams were crealed and by v-·hom.
In t\\·o suits, one
tiled by the shrotrietruiars, against the tenants for a declaration that the
tenant' did not have occupancy rights in the lands in their occupation. and
the other. by the tenants for a declaration that they had occupancy rights,
the qucsr1on arO!Je whether the slzrotrien1 was an "cstale" vtithin the meaning of s. 3(2)(d) of the Madras Es1atcs Land Act, 1908, as amended by
Act 18 of 1936. The trial court held, on a review of the evidence, that the
grant was of the whole village within the meaning of the section and that
the tenan:s h,1d occup•D"Y righlS.
On appeal, 1he High Court hdd that
the evidence on record was inconclusive, that the onus of p'.·o,·ing that the
grant was of an estate lay upon the tenants, and th:1t, since the tenanlo; had
failed 10 discharge the onus, the question should be decided again,t the
IOll&llts.
In the appeal to this Court by the tenants, the question \Vas : if there
was no evidence justifying an infere;icc that the grant wao; of a whole
village, whe1her explanation I lo s. 3(2)(<l) (added by Act 2 of 1945)
gave rise to a presump1ion in favour either of the shrotrierntl11rs or the
tenants.
HELD : The suit or the shrotriemdars must fail, because, the Explanation ra:sc.;; a presumption, v.-here a grant is expressed to be of a named
Tillage. that the area which formed the subjecl maller of the groat shall
be deemed to he an estate.
Raising of the presumption is not subject to
any other condition.
The le~islalure has, by the non obsrafJte clause in
the Explanntion, affirmed that such presumplion shall be raised even if
it appears that in the grant arc not included certain lands in the village,
which h<lVC, hefore the grant of the named ,·iJlagc, been granted on service
or other renure or have b~n reserved for communal purposes. llle party
contending that the grant in question fall<; outside the definition ins. 3{2l (d).
has to prove that case, either by showing that the mi~or inan1s not comprised in the grant were created, contemporaneously \v1th or subsequent to
the grant of the village, by the grantor. [857 D-E; 861 C-E]
By enacting the Explanation the intention of the legislature was to
declare occupancy ri~hts of tenants in inam villaj:!CS.
It v.rould be attributinA to the
le~islature rross i~orance of local conditions. if it was
held that the leizislature intended to place upon the tenant the onus of
establishing affirfnatively that the minor inams were granted hcfore the
arant of 1he named vi!la~e and Iha! if he fails to do so his claim is liable
to fnil
I• i9 \vell-ni!:!h im'1C1<;sib!e to di!;char_2-! such a burden in normal
cues. · Nor was it irltended that, when the evidence was inconclusive, the
person who approached the Court for relief must fail, for, as in lhe preseni
842
c
D
F
G
II
-
KONDAYYA v. RAMARAO (Shah, J.)
843
A
cue, if the inamdar as well .. the tenant sue for relief, the application of
the rule would require the court to adopt the anomalous course. of dismissing both the actions. In cases, which arose after the Amendmg Act
of 1936, reference to the presumption in s. 23 of the Act would be wholly
out of place the applicable presumpticm being the one prescnbed by Explanation I. The presumption under s. 23, that a grant in favour of an
inamdar wa~ of the me/varani only, applied only in cases \Vhich arose before
the Amending Act of 1936. [857 G; 858 B; 860 B; 862 F-G]
B
District Board of Tanjoro v. M. K. Noor Mohammad Rowther, A.I.R.
c
1953 S.C. 446 and V arada Bhavanarayana Rao v. State of Andhra Pradesh,
[1964) 2 S.C.R. 501, explained.
CIVIL APPELLATE JuRISoJCT!ON: Civil Appeals Nos.

## Text

_Characters 0–39,851 of 58,221. This is a partial read: ask again with offset=39851 for what follows._

ALURU KONDA YY A AND ORS.
A
v.
SINGARAJU RAMA RAO AND ORS.
Sep/ember 20, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYAT·
B
t:LLAH, J.C. SHAH ANDS. M. SIKRI, JJ.]
Madras Es;ates Land Act (I of 1908), s. 3(2) (d), Explanation I, 11'
am~ndcd by Act 18 of 1936 and Act (2 of 1945)-Estatc-Grcmt of a
named v1Jiage-Jj can be presumed to be of a whole village.
Jn the village of ChaJJayapalarn, there were six inams, namely, the
Challayapalam Shro1rien1 and five minor inams but there was no infonnation as to when the inams were crealed and by v-·hom.
In t\\·o suits, one
tiled by the shrotrietruiars, against the tenants for a declaration that the
tenant' did not have occupancy rights in the lands in their occupation. and
the other. by the tenants for a declaration that they had occupancy rights,
the qucsr1on arO!Je whether the slzrotrien1 was an "cstale" vtithin the meaning of s. 3(2)(d) of the Madras Es1atcs Land Act, 1908, as amended by
Act 18 of 1936. The trial court held, on a review of the evidence, that the
grant was of the whole village within the meaning of the section and that
the tenan:s h,1d occup•D"Y righlS.
On appeal, 1he High Court hdd that
the evidence on record was inconclusive, that the onus of p'.·o,·ing that the
grant was of an estate lay upon the tenants, and th:1t, since the tenanlo; had
failed 10 discharge the onus, the question should be decided again,t the
IOll&llts.
In the appeal to this Court by the tenants, the question \Vas : if there
was no evidence justifying an infere;icc that the grant wao; of a whole
village, whe1her explanation I lo s. 3(2)(<l) (added by Act 2 of 1945)
gave rise to a presump1ion in favour either of the shrotrierntl11rs or the
tenants.
HELD : The suit or the shrotriemdars must fail, because, the Explanation ra:sc.;; a presumption, v.-here a grant is expressed to be of a named
Tillage. that the area which formed the subjecl maller of the groat shall
be deemed to he an estate.
Raising of the presumption is not subject to
any other condition.
The le~islalure has, by the non obsrafJte clause in
the Explanntion, affirmed that such presumplion shall be raised even if
it appears that in the grant arc not included certain lands in the village,
which h<lVC, hefore the grant of the named ,·iJlagc, been granted on service
or other renure or have b~n reserved for communal purposes. llle party
contending that the grant in question fall<; outside the definition ins. 3{2l (d).
has to prove that case, either by showing that the mi~or inan1s not comprised in the grant were created, contemporaneously \v1th or subsequent to
the grant of the village, by the grantor. [857 D-E; 861 C-E]
By enacting the Explanation the intention of the legislature was to
declare occupancy ri~hts of tenants in inam villaj:!CS.
It v.rould be attributinA to the
le~islature rross i~orance of local conditions. if it was
held that the leizislature intended to place upon the tenant the onus of
establishing affirfnatively that the minor inams were granted hcfore the
arant of 1he named vi!la~e and Iha! if he fails to do so his claim is liable
to fnil
I• i9 \vell-ni!:!h im'1C1<;sib!e to di!;char_2-! such a burden in normal
cues. · Nor was it irltended that, when the evidence was inconclusive, the
person who approached the Court for relief must fail, for, as in lhe preseni
842
c
D
F
G
II
-
KONDAYYA v. RAMARAO (Shah, J.)
843
A
cue, if the inamdar as well .. the tenant sue for relief, the application of
the rule would require the court to adopt the anomalous course. of dismissing both the actions. In cases, which arose after the Amendmg Act
of 1936, reference to the presumption in s. 23 of the Act would be wholly
out of place the applicable presumpticm being the one prescnbed by Explanation I. The presumption under s. 23, that a grant in favour of an
inamdar wa~ of the me/varani only, applied only in cases \Vhich arose before
the Amending Act of 1936. [857 G; 858 B; 860 B; 862 F-G]
B
District Board of Tanjoro v. M. K. Noor Mohammad Rowther, A.I.R.
c
1953 S.C. 446 and V arada Bhavanarayana Rao v. State of Andhra Pradesh,
[1964) 2 S.C.R. 501, explained.
CIVIL APPELLATE JuRISoJCT!ON: Civil Appeals Nos. 341 to
343 of 1961.
Appeals from the judgment andj decree dated September 2,
1955 cf the Andhra Pradesh High Court in Appeals Suits Nos.
342 of 1949, 789 of 1950 and 551 of 1951 respectively.
A. V. V. Nair and P. Ram Reddy, for the appellants.
A.. V. Viswanatha Sastri, Alladi Kuppmwamy and M. S. NaraD
simhan, for the respondents Nos. 1 and 2 (in C.A. No. 341 of
1961) respondents Nos. 1 to 3 (in C.A. No. 342 of 1961) and
respondent Nos. 1to4 and 6 (in C. A. No. 343 of 1961).
G
H
The Judgment of the Court was delivered by
Shah, J.
In these appeals a common question-whether a
shrotriem grant of lands known as "Challayapalem shrotriem" formed an estate within the meaning of s. 3(2)(d) of the Madrrui
Estates Land Act, 1908-arises. The Court of first instance on a
review of the evidence was of the opinion that the grant was of the
whole Chellayapalem village within the meaning of s. 3(2)(d) of
the Madras Estates Land Act, 1908, in force at the relevant time,
and that the tenants held rights of occupancy in the lands held by
them.
The High Court of Madras disagreed with that view and
held that on the evidence it was not proved that the original grant
was of a "whole village" or even of a "named village" within the
meaning of s. 3(2)(d) of the Madras Estates Land Act, 1908,
and the first Explanation thereto, and that the onus to prove that
the grant was of a whole or of a named village being upon the
tenants in occupation of the lands in dispute, the claim of the
shrotriemdars must succeed. With certificates granted by the
High Court, these three appeals have been preferred.
Suit No. 42 of 1942 was filed by certain tenants of lands in
the village Challayapalem, District Nellore, for a declaration that
they hold occupancy rights in lands in their occupation and for an
injunction restraining the shrotriemdars of the village from "inter-
844
SUPREME COURT
REPORTS
[1966] I S.C.R.
fering with their possession''. The tenants claimed that "they and
A
their ancestors" were in possession and enjoyment of the lands for
many years and had been paying rent to the shrotriemdars, and
were dealing with the lands as owners, that all transactions in the
Challayapalem shrotriem were being on the footing that the village
was an "estate" under the Madras Estates Land Act, 1908, and
that in any event the tenants held permanent rights of occupancy
B
JD the lands acquired in virtue of the provisions of the Madras
Estates Lancj (Amendment) Act, 1936. This suit was later numbered 37 of 1947.
The shrotriemdars filed suit No. 2 of 1946 against fifteen named
defendants for a declaration that the tenants in occupation of the
C
lands in the village did not hold permanent occupancy rights.
Later, permission under 0. I r. 8 Code of Civil Procedure to sue
the named defendants as representatives of all the tenants in the
lands of the slzrotriem gr.int was obtained. Jn this suit the shrotri:•mdars did not claim any relief for possession : they merely sought to
reserve 1'berty to institute separate prcceeJings in that behalf and
D
claimed that they were entitled in enforcement of notices served
upon t<!D out of the named defendants to call upon them to deliver
possession of lands occupied by them.
There was one more suit. No. 93 of 1947, which raised a dispute as to the right of occupancy in a small area of land admeasurI!.
ing 1-90 acres.
The plaintiff in the suit claimed that he had acquired the right of occupancy by purcha9C from the original tenant
of the land. The fourth defendant in the suit who was the principal
contesting pariy claimed that he was a grantee of occupancy righlll
from the shrotriemdar.
The three suits were tried together. The tenants claimed in the
principal suit No. 2 of 1946 occupancy rights in the lands held
by them, on three grounds :
( 1) that the tenants of agricultural lands were, by
immemorial custom of the locality in the Nellore District,
occupancy tenants;
(2) that the tenants had acquired by prescription or
by the doctrine of lost grant the rights of permanent
occupancy; and
( 3) that the grant was of an estate within the meaning of s. 3 (2)( d) of the Madras Estates Land Act, 1908,
and the tenants of the lands in the estate were by virtue
of s. 6 of the Act permanent occupancy tenants.
F
G
II
•
,
•
KONDAYYA V. RAMA RAO (Shah, J.)
84S
A The trial Court, relying upon the statement made in Boswell's
Manual of the Nellore District, that the "tenants
of
Chellayapalem like their brothers in other villages of this District
had right to occupy the land from generation to generation on
payment of rent prescribed by custom", held that the tenants' plea
on the first head must be sustained. The High Court declined to
B raise such a presumption in favour of the tenants of the District
including tenants of the village Challayapalem, and correctness of
that view was not challenged in this Court. On the second ground,
the trial Court held that on the evidence that the tenants' rights
"were independent of prescription", and that they had not raised
c
D
E
F
G
H
any plea of acquisition of rights of occupancy by contract, express
or implied.
The High Court observed that on the evidence no
"foundation is laid for invoking the presumption of lost grant to
give a legal original, or lawful title to long continued possession of
the land by a particular tenant or tenants", and that the plea of
acquisition of the right of occupancy based on prescription was
not made out. This plea was also not reiterated before us, and the
appeals were supported only on the la~t ground.
The grant was, it appears, made by a Carnatic Nawab which
is recognised on all hands to be a shrotriem grant. There is, however, on the record no evidence to prove the date of the grant,
the names of the grantor and the grantee, the extent and terms of
the grant, the purpose and nature of the grant, and whether the grant
was of kudiwaram as well as of melwaram or of melwaram alone.
1be original deed of grant has not been produced and there is no
other direct evidence of the terms of the grant from which the terms
of the grant may be gathered. The trial Court held that the later
documents, such as the statement in the Inam Enquiry, the Inam
Fair Register and other documents, conduct of the shrotriemdars
and the tenants, and recognition accorded to the rights of ~he tenants viewed in the light of probabiliti~s justified an inference that
the grant was of the whole village, but according to the High Court
the evidence on the record was inconclusive and the case must be
decided against the tenants because the onus to prove that the
grant was of an estate lay upon the tenants, and that the tenants
had failed to discharge that onus.
The problem must be approached in two distinct brancheswhether the evidence justifies an inference that the grant was of a
whole village, and if there be no such evidence whether s. 3 (2) ( d)
Explanation (I ) of the Madras Estates Land Act gives rise to a
presumption in favour of the shrotriemdars or the tenants. Between the years 1640 to 1688 the territory which now forms the
846
SUPREMECOURT
REPORT$
[1966] l S.C.R.
District of Nellore was under the sovereignty of the Sultan of Gol~
konda. In -1688 this territory along with Golkonda: passea under
the Moghal dominion. After the War between the East India Company and Sultan Hyder Ali, it was arranged between the Government of Madras and the Nawab of Camatic that the latter should
bear the cost of the military defence of the Camatic region. The
Nawab agreed to assign the revenues of the Camatic region for a
period of five years to the East India Company, and in pursuance
of this arrangement, the East India Company took over the administration of the Carnatic region in 1790. On August 18, 1790
the Board of Revenue, Madras issued instructions to the Collector8
of Revenue appointed by the East India Company, relating to the
administration of the Districts. Dighton who was the first Collector
A
·B
c
of the,Nellore District unoer the new dispensation found on enquiry
that some villages in the District had been alienated on shrotriem
tenure. He proceeded to investigate the title of the grantees and
issued a number of sanads. During the course of his management
Dighton addressed on November 13, 1790 to the "Chellayapalem D
Shrotriemdar Mutharaju Ramachandrayya Sthala Kamai Varu" the
following co=unication :
'
"You shall pay as per instalments varahas 283 (two
hundred and eighty three) being the beriz in respect of
your shrotriem known as Chellayapalem village in Gandavaram Paraganas, as entered in the circar shrotriem
jabitha, into the Nellpre Treasury, obtain receipt and
happily enjoy the produce realised from that village, you
shall enjoy happily by giving shares to the kapus as per
mamool."
Administration of the territory by the East India Company came F
to~ end on August 31, 1792. On July 31, 1802 the East India
Company assumed sovereignty over the District of Nellorc and one
Travers was appointed Collector in September 1801.
Travers
recognised 207 shrotriem villages without disturbing the arrangements which were then in existence, dispensed with the .duties of
stha/akarnams and collected quit rent on their inams. It appears
that the shrotriem of Challayapalem was continued under the
arrangement of the year 1790 which we have set out.
G
Soon after the East India Company took over the administration of what later came,to be known .as the Presidency of Madras,
Regulation 31 of 1802 setting up machinery for. the better ascertainment of titles of persons holding or claiming to hold lands
exempt from payment of revenuG to Government under grants and
for fixing assessment .on such lands was promulgated. A register of
H
'
,_-.
..
•
•
•
A
B
c
D
E
KONDAYYA V. RAMA RAO (Shah, J.)
847
loams in Government Taluks was prepared and in Col. 14 of the
loam Register the loams registered pursuant to the Regulation were
set out. In the village Challayapalem are found mentioned in that
Register-three Inams-the Challayapalem shrotriem (which is in
dispute in the present case), and two other personal Inams each of
an area of 0-93 cents. Apart from the preparation of this loam
Register, nothing substantial was done under the Regulation till
1860. About the actings of the shrotriemda."s and the tenants
between 1802 and 1860 there is very little evidence.
There is no
evidence as to when the five minor inams, including those two mentioned in the Inam Register, were created, who paid the 1evenue,
whether tenants were shifted from lands in their occupation, or
lands originally not occupied were brought under cultivation.
In
1860 the Inam Commission commenced an inquiry in the Nellore
District. Exhibit B-195 is a record of the statement made by the
shrotriemdars Muthuraju Subbarao and Muthuraju Subbarammayya
of Chellayapalem. In Col.
6 it is recorded that the grant was
made during the time of the Nawabs for maintenance so as to be
enjoyed from son to grandson and so on in succession, and in Col.
7 details of the lands are set out. Out of the total area of the land
21 Gorrus 12/16 are recorded as poramboke, 5 Gorrus and U
Visas as minor inams, and 126. 3! visas as cultivated lands-dry,
wet and garden. The boundaries and particulars of the inam lands
are shown as if the inam grant was of the whole village, the description of the boundaries being of lands of other villages to the East,
South, West and on the North of lands of military barracks. Income
of the shrotriem is fixed at Rs. 1,449-5-5 per annum and the total
jodi at Rs. 1,225-12-2, leaving a balance of Rs. 223-9-3 to the
shrotriemdars. This statement is described as written and filed by
F Muthuraju Subbarao and Subbarammayya shrotriemdars of Challayapalem, and that it was confirmed by the Village Officers. Pur-
~uant to the enquiry made by the loam Commissioner entries were
pos'ted in the Inam Fair Register. In Ext. A-1 which is described as
"an extract from the Register of Inams in the village of ChellayaG
palem shrotriem in the taluk of Nellore" in Col. 21 it was recited
that the shrotriem "being more than 50 years old could be confirmed. In the account of Fasli 1221 the income of the shrotriemdars for ten years previous to that Fasli is given. It is shown in
the margin that the shrotriem is r.~nted from Fasli 1263 to Fasli
1287, that is for a period of 25 years for the sum of Rs. 244
above the jodi.
The cost of the repair to be borne half by the
H tenant and half by the shrotriemdars. .
. Almost the whole
land is now under cultivation and there is scarcely any room for
further improvement. I propose to give a deduction of Rs. 20 on
848
SUPREME COURT REPORTS
[1966] I S.C.R.
account of the cost of repair which the shrotriemdar will have to A
pay and adopt the remai~der as the value of the shrotriem".
In
Cols. I 0 & 11 it is recorded that the inam was hereditary, but by
whom lt was granted it was not known.
It is common ground
that Ext. A-I did not include the area of five minor inams for
which separate entries Exts. A-2 to A-6 were posted.
The total
area of the village as then estimated exceeded 466 acres and Ext.
B
A-1 related to 453-06 acres, the balance being in respect of minor
inams.
Pursuant to the entries in the Inam Fair Register, confirmatory title deeds were issued. Exhibits A-2 and A-3 relate to
devadayam grants : the extent covered by Ext. A-2 is 5-68 acres,
and by Ext. A-3 is 2-83 acres. In Cols. 11 & 12 headed "By whom
granted and written instrument in support of the claim" it is recordC
cd that "the name of the grantor and the written instruments in respect of the claim not known". Three other entries in the lnam
Fair Register were Exts. A-4, A-5 & A-6. Exhibit A-4 is in respect of land 3-12 acres, Ext. A-5 is in respect of 0-93 cents and
Ext. A-6 also is in respect of 0-93 cents. Here also it was recorded
that the "grantor's name and the date of the grant are not known."
D
The next public document to which reference may be made is
the "Descriptive Memoir of Chellayapalem shrotriem village in the
Kovur Taluk of the Nellore District"-Ext. A-7.
It recites that
the boundary of the village had remained unchanged by settlement:
the area prior to settlement was (omitting fractions) 469 acres,
and by the settlement it was found to be 767 acres, showing an
increase of 298 acres, but "nothing had been merged in this village
by the settlement." According to the settlement accounts of land,
E
the total cultivable area was 682 acres, minor inams 18 acres and
poramboke 67 acres. Under the head "minor inams included in the F
village" were Personal lnams 5-08 acres, Religious Jnams 8-64
acres, Village Officers 2-87 acres and village artisans 1-80 acres.
Under Ext. A-7 the whole village was described as the Challayapalem .rhrotricm.
Apparently the village was identified with the
shrotriem.
These are all the extracts from public records which have a
bearing on the principal question in dispute.
The plaintiffs in suit No. 2 of 1946 are purchasers under two
deeds Exts. A-IOI and A-102 respectively dated January 14, 1881}
and August 7, 1889 from the previous holders. They are strangers
to the family of the original grantees, and it is not surprising that
they are not in possession of the deed of grant, and the earlier
record relating to the management of the village.
G
H
•
•
•
•
A
B
c
D
---~----------------------
KONDAYYA ~.RAMA RAO (Shah,/.)
849
Exhibit B-1 the letter addressed by Dighton to t)le shrotriemdar
may at first blush suggest that the village was accepted and con•
firmed as one of the shrotriem villages in the Gandavaram Paragana.
But Ext. B-1 was not of the nature of a sanad : it did not contain
a reference to the terms of the grant, the date of the grant, the
names of the grantor and grantee, and was based on information
by a "/abitha (list) relating to Circar's shrotriems". In Boswell's
Manual it is recited that Dighton had invC;Stigated the title of the
inamdars in the District and had granted sanads, but Ext. B-1 did
not purport to be a confirmatory sanad or a fresh grant, or a deed
embodying the result of any investigation regarding the title of the
Mutharajus to the village.
Exhibit B-1 undoubtedly refers to
Mutharaju Ramchandrayya as "Chellayapalem Shrotriemdar" and
fixes the revenue at 283 pagodas in respect of "your shrotriem
known as Challayapalem village". But Dighton was a Collector of
Revenue appointed by the East India Company which was in 179<1
not invested with de jure sovereignty over the region. There is also
no record of any enquiry made by Dighton i11. respect of the ChalIayapalem shrotriem. The object of the Jetter Ext. B-1 is apparently two-fold : to fix the revenue, and to ensure that the tenants were
not subjected to unlawful exactions. For the latter purpose it was
directed that the shrotriemdar was to enjoy the produce from the
village by giving shares to the kapus (tenants) as per mamool.
E
Exhibit B-1 does not refer to any minor _inams, and' treats the
Challayapaiem village as the shrotriem of Muthurajus.
The statement of Mutharaju Subbarao and Subbarammayya--
Ext. B-195-suggests that the original grant was in favour of
Mutharaju Sithanna-their ancestor.
The statements in Col. 6
that the grant is from the Nawab whose name is not mentioned,
F
and in Col. 7 about the details of the entire extent of the village,
do not furnish any evidence as to the character and extent of the
original grant. It is true that the boundaries of the lands granted
are described as if the grant was of a whole village, and nothing is
mentioned about the origin of the minor inams. Exhibit A-1the Inam Fair Register Extract-.is in respect of 453-03 acres whereG as the total area of the village as then measured exceeded 466
acres.
Thb area of 13
acres was undoubtedly held by minor
inamdars in respect of which entries Exts. A-2 to A-6 were posted
in the Inam Fair Register. Those entries are of no assistance in
tracing the source df the minor inams. In each of those extracts'
under the head "By whom granted and written instrument in supH
port of the claim" it is recited that the names of the grantor and
the written instrument in support of the claim "are not known":
Sanads in respect of the minor iftams were issued because the inams
L8Sup, C.I./65-11
850
SUPREME
COURT REPORTS
(1966] l S.C.R.
were found to be more than fifty years old. Inams in respect of
A
which entries Exts. A-5 and A-6 are posted are found mentioned in
the Inam Register prepared under Regulation 31 of 1802, but not
the inams in respect of which Exts. A-2, A-3 and A-4 are issued.
It also appears that in the Inam accounts, the inam relating to Ext.
A-2 appeared for the first time in Fasli 1211, the inam relating
to Exts. A-5 & A-6 in Fasli 1216, the inam relating to Ext. A-3
B
in Fasli I 250 and the inam relating to Ext. A-4 in Fasli 1260. But
the accounts maintained under Regulation 31 of 1802 w~re apparently not maintained either regularly or in respect of all the
inams.
In the absence of reliable evidence from entries in these
rough accounts, no inference that the minor inams were granted by
the shrotriemars could be made. The name of the grantor is not
C
to be found in Exts. A-2 to A-6. Exhibit A-7 proves the existence
of minor inams, but has no tearing on the question whether the
whole village Challayap~lem was granted in inam.
Jn Exts. A-48, A-49, A-104, A-105 and A-103 the predecessors-in-interest of the present inamdar had described the village as
D
"Challayapalem Shortrkm"; in Exts. A-102, B-44, B-45, B-12 to
B-19, B-20 to B-43, the present inamdar's grandfather was a party
and therein also the inamdars were described as "slzortriemdars of
Chellayapalcm". There are documents Exts. B-2, B-3, B-4, B-5,
B-6, B-9, B-112 & B-1I6 and other documents in which the village
is described as "Chellayapalem Shrotriem".
But these recitals I.
have no evidentiary value in support of the case that the whole village was granted.
The statements in Ext. B-195 related only to a part of the
village and that the income realised by the inamdar was
Rs. 1,449-5-5 per year, out of which the revenue payable to the
•·
Government was Rs. 1,225-12-2 and the balance enjoyed as inam
was only Rs. 223-9-3. Exhibit A-I-Extract from the Inam Fair
Register-does not lead to the inference that the area of the entire
village was granted.
The recommendation made by the Deputy
Collector was confined to the shrotriem.
The shrotriem was confirmed merely because it was more than fifty years old, and what
G
was confirmed was not the area of the entire village, but the shrotriem grant admeasuring 453-06 acres out of a total area of 466
acres.
Evidence on the record about the actings of the shrotiemdars
and the tenants for the period 1790 to 1862 is vague and inconclusive. It appears from the Inam Register that for a period of 25
H
years the shrotriem was under an Tiara.
The Inam Fair Register
recites that garden lands were irrigated from the private wells of
•
•.
-
KONDAYYA v. RAMA RAO (Shah,/.)
851
A the shrotrlemdars.
From the acounts for Fasli 1216 it appears
that more than a hundred acres were then lying uncultivated, but
for sometime before 1862 the whole village was under cultivation.
On the other hand there is the evidence that the tenants' successors were recognised in place of their predecessors, family partitions
B were approved, and the shrotriemdars received their proportionate
shares from the divided sharers, and the tenants were not disturbed
in their possession. Chellayapalem has at all material times been
included in the list of villages maintained in the Collector's office.
It was within the boundaries which are not shown to have been
altered. A village in the Madras region is a geographical area of
c arable and waste lands, and contains the establishment of a karnam,
village munsiff and watchmen, and Chellayapalem has at all material times been recognised as a village, and has been administered
accordiugly.
Minor inams were always regarded as part of the
village, and popularly and even in the public records the village
was identified with the shrotriem. The shrotriemdars have failed
D
to produce their books of account relating to their management.
It is however admitted by them that they were collecting jodi from
the holders of minor inams and paying it into the public exchequer.
It was explained by S. Rama Rao P. W. 1 that he "collected the
cess" as a registered proprietor and paid it over into the treasury,
because a demand was made upon him by the Revenue authorities
E for the whole amount of land cess due.
But long possession, fixity of rent, assertion of title in formal
deeds may not necessarily justify an inference of permanent occupancy rights. Again the mere fact that the village was treated as one
unit for the purpose of revenue administration doe$ not justify any
F
positive inference and the fact that five separate sanads were issued
in respect of the minor inams without any evidence to prove the
date and the terms of the grant leaves the matter in doubt. Some
of these circumstances may prima facie support the inamdars and
the other the tenants, but on a careful review of all those circumstances, we are unable to disagree with the opinion of the High
G Court that the grant was not proved to be of a whole village.
H
The second branch of the argument must then be considered.
The High Court expressed its conclusion on this branch of the case
as follows:
"Whether a tenant raises the plea that the lands were
in an estate and therefore ryoti and the civil court has no
jurisdiction, or the tenant relies upon the statute in answer to a suit by the landlord either for an injunction,
852
SUPREME COURT REPORTS
[1966) l S.C.R.
or even for a declaration as in the preA
sent case, the burden of proof would undoubtedly be on
the tenant to establish the case which he put forward
either to exclude the jurisdiction or to negative the right
of the plaintiff.
The burden will be on him to show
that the grant was c:ither a grant of a whole village or a
grant of a named village."
S
In so enunciating the law, the High Court relied upon the judgment
of this Court in District Board Tanjore v. M. K. Noor Mohan~d
Rowther(1) and held that in law the burden of proving that a
particular grant was a grant of an estate lay upon the tenants in all
caaes, and the tenants having failed to discharge that burden their
claim must fail.
c
In considering this argument, it is necessary to make a brief
review of the history of land tenures and the provisions of the
Madras Estates Land Act, 1908 as they were amended from time
to time.
After the assumption of sovereignty in 180 I, the East
India Company promulgated thc Permanent Settlement Regulation
D
25 of 1802, which dealt with the tcnur~ of zamindars in their estates.
'
This Regulation was passed on July 13, 1802 and bys. 4 thereof
inams were exempted from its •cope. On the same date, another
Regulation 31 of 1802 was enacted. This Regulation dealt with
inams and provided for making rules for the b.etter ascertainment
of titles of persons holding or claiming to hold, lands exempted
JI:
from the payment of revenue to Government under grants not being
"Badshahi" or Royal and for fixing an assessment on such lands.
By s. 15 it was enacted that a register of inams shall be kept in
each zi/lah of the lands held exempt from the payment of revenue,
and that the register should specify the denomination of each grant
or sanad, the names of the original grantors or grantees, and the F
names of the present possessors, with other particulars. It appears
that nothing effective was done to investigate the titles of the claimants to inams till 1859, when the question of examining their
title was taken up by the Inam Commission. The Inam Comm~
sion made inquiries and issued confirmatory sanads.
We have
G
already referred to Title Deed No. 1762 issued in respect of the
grant in favour of the shrotriemdars.
The traditional rights of occupants of land in the southern region
were recorded by the Board of Revenue as early as in 1818 in illl
proceeding dated Januury 5, 1818 that :
"The universally distinguishing character, as well as
the chief privilege of this class of people, is their exclu-
(t) A.l.R. 19S3 S.C. 446
H
•
KONDAYYA V. RAMA RAO (Shah,/.)
A
sive right to the hereditary possession and usufruct of the
soil, so long as they render a certain portion of the produce of the land, in kind or money, as public revenue;
and whether rendered in service, in money, or in kind,
and whether paid to rajahs, jageerdars, zamindars, polygars, motahdars, shrotriemdars, inamdars
or GovernB
mcnt Officers, such as tahsildars, amildars, aumeens, or
tanadars, the payments which have always been made by
the ryot are universally termed and considered the dues
of the Government."
853
The Legislature with a view to define the relations between
c landlords and tenants in inam villages promulgated Madras Act 1
of 190\8. The material part of s. 6( 1) as amended by Madras Act
8 of 1934 and 18 of 1936 provided:
D
E
F
G
"Subject to the provisions of this Act, every ryot now
in possession or who shall hereafter be admitted by a
landholder to possession of ryoti land situated in the
estate of such landholder shall have a permanent right of
occupancy in his holding .
Explanation (1 ).-For the purposes of this sub-section, the expression 'every ryot now in possession' shall
include every person who, having held land as a ryot continues in possession of such land at the commencement
of this Act.
Explanation (2) .-
Explanation ( 3) .- .
n
Section 3 sub-s. (2) defined the expression "estate" within the
meaining of the Act and insofar as it is material for this case, it
provided as originally enacted :
"In this Act, unless there is something repugnant in
the subject or context-
"Estate" Means-
(a) any permanently-settled estate or temporarilysettled zamindari:
( b) any portion of such permanently-settled estate or
H
temporarily-settled zamindari which is separately registered in the office of the Collector;
( c) any unsettled palaiyam or jagir;
854
SUPREME
COURT
REPORTS
[1966) l S.C.R.
( d) any village of which the land revenue alone has
been granted in inam to a person not owning the kudivaram thereof, provided that the grant has been made,
confirm,ed, or recognised by the British Government, or
any separated part of such village;
A
( e) any portion consisting of one or more villages
B
of any of the estates specified above in clauses (a), (b)
and ( e) which is held on a permanent under-tenure."
"Kudivaram" is a Tamil word, which signifies the cultivator's share
in the produce of land as distinguished from the landlord's share
received by him as rent, which is called "melvaram". "Kudivaram"
.
c
has acquired a secondary meaning, it means the cultivator's interest in the land, and "me/varam" the landlord's interest in the land.
The definition of "estate" in cl. ( d) gave rise to
considerable
litigation which called for determination of two questions : (I)
whether there was a grant of the whole village so as to make the
area granted an estate; and (2) whether the landlord to whom
0
the land was granted owned the "kudivaram".
In cases which
came before the Courts it appeared that apart from the grant which
was claimed to be a grant of an estate, there were in each village
other grants, religious. service and personal, and evidence about
the commcnament of these min~r grants and the terms on which
they were granted wa·; not forthcoming.
E
In G. Narayanaswami Nayudu v. N. Subraman.vam('). in a
suit filed by the receiver of the Nidadaole estate for possession of
certain lands the tenant claimed that he had acquired occupancy
rights under s. 6 of the Madras Estates Land Act
I of 1908.
There were in the village minor inams of three classes : archaka
F
servioc inams, village service inams, and dharamdaya inams, and
there was no evidence whether the grant to the plaintiff's estate
of the village was made first, or whether the minor inams were
granted first.
It was contended on behalf of the plaintiff estate
that inasmuch as there were minor inams in the villa!!e, the
Venkarapuram agraharam could not be said to be "a village of
G
which the land revenue had been granted as inam within the meaning of s. 3(2)(d) of the Act".
The Court rejected that contention and observed :
"The definition in sub-section 2, clau~e ( d) was
obviously intended to exclude from the definition
of
H
"Estate"
what
are
known as minor inams, namely,
(t) 1.L.R 39 Mad. 683.
......
•
•
A
B
c
KONDAYYA v. RAMA RAO (Shah, /.)
particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries.
The latter are known as "whole inam villages".
The existence of "minor inams" in whole inam villages
is very common and if these inam villages do not come
within the definition of "Estate" almost all the agraharam, shrotriyam and mokhasa villages will be excluded.
This certainly cannot have been the intention of the
legislature.
These minor inams are generally granted
for service to be rendered to the village or to the owner
and that seerris to be the nature of the minor inams in
this case."
855
The Court therefore held thats. 3(2)(d) of the Madras Estates
Land Act excludes from the definition of "estate" minor inams,
and a grant which purports to be a grant of a whole inam village
is an estate within the meaning of cl. (d) of s. 3(2), even though
it may be found that there are lands held by grantees under
D minor inams.
The Legislature in 1936 substituted for cl. (d)
1
of s. 3 (2) the following clause by the Madras Estates Land
(Third Amendment) Act, 18 of 1936 :
" ( d) any inam village of which the grant has been
made, confirmed or recognized by the British GovernE
ment, notwithstanding that subsequent to the grant, the
village has been partitioned among the grantees or the
successors in title of the grantee or grantees."
Then came the judgment of the Madras High Court in
Tulabandu Ademma v. Sreemath Satyadhyana Thirtha SwamiF
varu('). In that case the original grant was lost. In Col. 6 of
the statement prepared by the Inam Commissioner in that case,
it was recorded that "the former Zamindars granted the land,
comprised within the 'Chekunama' for the math.
There is no
sanad as it was destroyed by fire.
There was no entry under the
heading 'particulars of the inam land mentioned in the
sanad',
G but under the head 'Gudicut' (the total area of the village) was
the entry 158.23 acres, from which were deducted 25.10 acres
described as private lands, and 5.4 acres 'inams of other persons'
leaving 128.6 acres as the area covered by the grant." In Col.
10 it was stated that there was no 'Chekunama'. The Court held
that the grant being of less than the whole village, the tenant
H could not rely on s. 6 of the Act. In that case the boundaries
of the agraharam as described in Col. 10 in the Inam Register
(I) A.I.R. 1943 Mad. 187.
856
SUPREME
COURT REPORTS
(1966) I S.C.R.
were admittedly the boundaries of the whole village, but in
A
the view of the Court Col. 10 had to be read in conjunction nith
the other columns.
There was no evidence whether the other
inams were granted before the grant in favour of the Devasthana
or after.
This case apparently marked a departure from the rule
which was enunciated earlier by the
Madras
High Court in
,
G. Narayanaswami Nayudu's case(').
B
The Legislature immediately reacted against this view and
enacted, by Madras Estates Land (Amendment) Act 2 of I 945,
added the following Explanation to cl. (d) of s. 3(2).
Explanation (I) read as follows :
"Where a grant as an inam is expressed to be of a
named village, the area which forms the subject-matter
of the grant shall be deemed to be an estate notwithstanding that it did not
include certain lands in the
village of that name which have already been granted
on service or other tenure or been reserved for communal purposes."
This Explanation was made operative
retrospectively from the
date on which Madras Act 18 of 1936 was br0ught into force.
The Explanation was apparently intended by legislative process
to restore the interpretation which the Madras High Court had
given to the expression "whole village" in
G. Narayanmwami's
case('). But the legislature had used somewhat involved phraseology in enacting the conditions which gave rise to the presumption.
If a minor inam was proved to be granted prior to the date of the
grant, by virtue of Explanat:on (I ) the grant expressed to be of
a named village had to be regarded as a grant of an estate. If
it was proved that the grantee after receiving the whole village
created minor inams, the grant was of the whole village and therefore grant of an estate.
But where evidence about the creation
of the major and minor inams was not forthcoming, the question
had to be decided on the presumption that the subject-matter of
the grnnt shall be deemed to be an estate, notwithstanding that
it did not include lands granted on service or other tenures or
lands reserved for communal purposes.
On the true effect of
the Explanation there was a sharp conflict of judicial opinion
resulting in three distinct views. In one set of cases it was ruled
that the burden of proving that a tenant is entitled to permanent
rights of occupancy in his holding by virtue of s. 6 of the Madras
Estates Land Act always lies upon the tenant, and it is for the
(I) I L.R. 39 Mad. 6SJ.
c
D
G
II
KONDAYYA V. RAMA RAO (Shah, J.)
857
A tenant to establish affinnatively that the minor inams in the village
were granted before the date of the grant of the named village,
and if he failed to do so his claim is liable to fail : see Rama Rao
v. Linga Reddi(') and Ramadhan Chettiar v.