# SUPREME COUHT REPORTS [1960(2)] BHAGWANTRAO v. VISHW ASRAO AND ANOTHER

- **Citation:** [1960] 2 S.C.R. 710
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 85-A of 1946
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-couht-reports-1960-2-bhagwantrao-v-vishw-asrao-and-another-1769
- **Pages:** 19

## Headnote

r960
January I:J
710
SUPREME COUHT REPORTS [1960(2)]
BHAGWANTRAO
v.
VISHW ASRAO AND ANOTHER
(S. K. DAS, and A. K. SARKAR, JJ).
Grant-Rcsnmption--Patelki huq inam-True nature and
character of-Inam RHles, r859-Patel and Patwaris Law, r900Berar Land Revenue Code, r928, s. r90.
The question for decision in the appeal was the right of the
revenue authorities of the State Govern1nent concerned, to
resume certain lands known as 'patelki huq inam,' which lay in
the Jagir village of Nawabag situate in the ceded area of Berar.
The lands were granted by the then so'f'reign authority by way
of remuneration or emoluments for services to be rendered by the
pa tel; the grant was of ancient origin and was recognised as a
'service in am' by the British Government. In the village of
Nawabag there were four families of patels, who went by the
surnames of Dongre, I<okade, Raut and Ingle, the members of
which held the patel's office in rotation of ten years. There was
a partition in the Rokade family as result of which the • patelki
inam' lands were divided, and the lands in suit were allotted
to the share of the appellant who never held the patel's office.
During an enquiry for the preparation of the record of rights of
the said Jagir village, it was held that the appellant was not
entitled to hold the • patelki inam, lands which were given as
emoluments for service to the working pate!, and the Financial
Commissioner finally held that the person actually working as
pate! was entitled to receive the full emoluments of his office,
and confirmed the order that the lands in possession of the
appellant should be resumed and regranted to the working pate!,
viz., the respondent No. r.
On the question of the true nature of the patelki huq inam,
two points arose:
(r) was it a grant by way of remuntlration
or emoluments of the patel's office by the use of the land, or
(2) was it a grant of land to the patelki family burdened with
service and so long as the service \~.ras performed by any member
of the family, the lands were joint family lands subject to partition etc. among the members of the family.
Held, that the 'patelki inam' in this case was in its origin
a grant by way of remuneration for patelki service by the
. sovereign authority; it was separate from and independent of
the Jagir of Nawabag though the land lay within the Jagir village. In its true character the ' patelki inam' was land given
in lieu of wages or emoluments for the office of pate!; it could
not be freely alienated and the Government could resume the
land.
Held, further, that where one of two or more patels of the
village held office in turn by rotation, that did not mean that
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SUPREME COURT REPORTS
711
the pate! ceases to be a pate! when his turn was over; he continued to be a pate! and to enjoy his emoluments of office.
Held, also, that there was nothing in the lnam Rules, 1859,
on the basis of which a person could claim as of right that he
had a share in the ' patelki inam' lands as a member of the
patel's family irrespective of whether he performed the service
or not. A member of the patel's family was not entitled as of
right to a share in the emoluments of the patel's office and
Government had every right to resume 'patelki inam' lands
and regrant them to the officiator in accordance with the provisions of the Patel and Patwaris Law, 1900, and s. 190 of the
Berar Land Revenue Code, 1928.
Held, also, that on the finding that the lands were given by
way of emoluments for the patel's office, no question of title by
adverse possession arose against the Government in the circumstances of the case.
Venkata J agannadha v. Veerabhadrayya, (1921) L.R. I.A. 224,
referred to.
Krishnarao v. Nilkantha and Others, A.LR. (1922) Nag. 52,
Mir Subhan Ali v. Imami Begum, (1925) 21 Na:g. L. Reports n7,
Lakhamgouda Basavaprabhu Sardesai v. Baswantrao and Others,
A.I.R. (1931) P.C. 157, Jaiwantrao and Another v. Sahebrao, (1933)
29 Nag. L. Reports 210 and Raje Shrinivasra

## Text

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r960
January I:J
710
SUPREME COUHT REPORTS [1960(2)]
BHAGWANTRAO
v.
VISHW ASRAO AND ANOTHER
(S. K. DAS, and A. K. SARKAR, JJ).
Grant-Rcsnmption--Patelki huq inam-True nature and
character of-Inam RHles, r859-Patel and Patwaris Law, r900Berar Land Revenue Code, r928, s. r90.
The question for decision in the appeal was the right of the
revenue authorities of the State Govern1nent concerned, to
resume certain lands known as 'patelki huq inam,' which lay in
the Jagir village of Nawabag situate in the ceded area of Berar.
The lands were granted by the then so'f'reign authority by way
of remuneration or emoluments for services to be rendered by the
pa tel; the grant was of ancient origin and was recognised as a
'service in am' by the British Government. In the village of
Nawabag there were four families of patels, who went by the
surnames of Dongre, I<okade, Raut and Ingle, the members of
which held the patel's office in rotation of ten years. There was
a partition in the Rokade family as result of which the • patelki
inam' lands were divided, and the lands in suit were allotted
to the share of the appellant who never held the patel's office.
During an enquiry for the preparation of the record of rights of
the said Jagir village, it was held that the appellant was not
entitled to hold the • patelki inam, lands which were given as
emoluments for service to the working pate!, and the Financial
Commissioner finally held that the person actually working as
pate! was entitled to receive the full emoluments of his office,
and confirmed the order that the lands in possession of the
appellant should be resumed and regranted to the working pate!,
viz., the respondent No. r.
On the question of the true nature of the patelki huq inam,
two points arose:
(r) was it a grant by way of remuntlration
or emoluments of the patel's office by the use of the land, or
(2) was it a grant of land to the patelki family burdened with
service and so long as the service \~.ras performed by any member
of the family, the lands were joint family lands subject to partition etc. among the members of the family.
Held, that the 'patelki inam' in this case was in its origin
a grant by way of remuneration for patelki service by the
. sovereign authority; it was separate from and independent of
the Jagir of Nawabag though the land lay within the Jagir village. In its true character the ' patelki inam' was land given
in lieu of wages or emoluments for the office of pate!; it could
not be freely alienated and the Government could resume the
land.
Held, further, that where one of two or more patels of the
village held office in turn by rotation, that did not mean that
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711
the pate! ceases to be a pate! when his turn was over; he continued to be a pate! and to enjoy his emoluments of office.
Held, also, that there was nothing in the lnam Rules, 1859,
on the basis of which a person could claim as of right that he
had a share in the ' patelki inam' lands as a member of the
patel's family irrespective of whether he performed the service
or not. A member of the patel's family was not entitled as of
right to a share in the emoluments of the patel's office and
Government had every right to resume 'patelki inam' lands
and regrant them to the officiator in accordance with the provisions of the Patel and Patwaris Law, 1900, and s. 190 of the
Berar Land Revenue Code, 1928.
Held, also, that on the finding that the lands were given by
way of emoluments for the patel's office, no question of title by
adverse possession arose against the Government in the circumstances of the case.
Venkata J agannadha v. Veerabhadrayya, (1921) L.R. I.A. 224,
referred to.
Krishnarao v. Nilkantha and Others, A.LR. (1922) Nag. 52,
Mir Subhan Ali v. Imami Begum, (1925) 21 Na:g. L. Reports n7,
Lakhamgouda Basavaprabhu Sardesai v. Baswantrao and Others,
A.I.R. (1931) P.C. 157, Jaiwantrao and Another v. Sahebrao, (1933)
29 Nag. L. Reports 210 and Raje Shrinivasrao v. Raje Vinayakrao,
I.L.R. [1949] Nag. l discussed.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No,
208of1955.
Appeal from the judgment . and decree dated
November 27, 1951, of the former Nagpur High Court,
in Sec.ond Appeal No. 169 of 1947, arising out of the
judgment and decree dated February 3, 1947, of the
First Additional District Judge, Amraoti in Civil
Appeal No. 85-A of 1946, against the judgment and
decree dated December 20, 1945, of the Civil Judge
First Class, Ellichpur, in Civil Suit No. 1-A of 1943.
W. S. Barlingay and A. G. Ratnaparkhi, for the
appellant.
H.J. Umrigar and Sardar Bahadur, for respondent
No. 1.
'
R. Ganapathy Iyer, M. P. Nathwani and R. H.
Dhebar, for respondent No. 2.
1960. January 12. The Judgment oftheCourtwas
delivered by
S. K. DAS J.-This is an appeal on a certificate
granted by the High Court of Nagpur under clause (c)
Bhagwantrao
v.
Vishwasrao
and Another
S, K. Das].
Bhagwantrao
v.
"V ishwasrao
and Another
S. K. Das J.
•
712
SUPREME COURT REPORTS [1960 (2)]
of Article 133(1) of the Constitution to the effect that
the case is a fit one for appeal to this Court. It raises
some important questions as to the right of the
revenue authorities of the State Government concerned, to resume certain lands which are known as
"pate] ki huq inam" lands situate in what was
previously known as the ceded area of Berar. The
plaintiff Bhagwantrao Shivaji Patel (Bhagwantrao, to
give his short name) is the appellant before ns.
Vishwasrao Patel, who was1defendant No. 2 in the suit,
is now respondent No. 1.
Originally, the Provincial
Government of the Central Provinces and Berar was
defendant No. l, and now the State of Bombay is
respondent No. 2 before us.
:Formerly, the lands in
suit lay within the province of Central Provinces and
Berar; later they fell within the State of Madhya
Pradesh, and now they are in Bombay.
The relevant facts which have given rise to the
appeal may now be shortly stated. The lands in suit
were comprised in six survey numbers stated in paragraph one of the plaint. They lay in village Nawabag,
a jagir village, of Ellichpur (now called Archalpur)
taluq of Berar, and we shall hereinafter give some
more details of that jagir. In that village there were
four families of Pa tels some members of which held
the Patel's office in rotation of ten years each. These
four families went by the surnames of Dongre, Rokade,
Raut and Ingle.
vVe are concerned with the Rokade
family.
One Shivajirao of that family had two sons,
called Amrit and Bhagwant. Bhagwant, as we know,
is the appellant before us.
Vishwasrao, respondent
No. 1, is the son of Amrit. Shivajirao died sometime
in 1886.
His son Amrit died in 1920. In 1923 there
was a partition between the appellant and responddent No. l. The.case of the appellant was that as a
result of this partition, the "patelki inam" lands were
divided and the lands in suit were allotted to the share
of the appellant. When Shivajirao was alive, he
worked as pate!; so did Amritrao in his turn. Lastly,
Vishwasrao also worked as pate!. In 1935 a special
officer was appointed by Government to prepare a
record of rights of the jagir village ofNawabag. This
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SUPREME COURT REPORTS
713
officer submitted a· repor~ on which certain enquiries
were made. As a result of these enquiries it was held
that the appellant was not entitled to hold the "patelki
inam" lands which were given as emoluments of his
office to the working patel from the Rokade family.
It was ordered by the Deputy Commissioner that the
lands in possession of the appellant should be resumed
and regranted to the working patel, viz., respondent
No. 1.
The appellant appealed against this order.
The Commissioner of Berar set aside the order of
eviction, but maintained the status quo pending final
orders of Government. Ultimately, on December 19,
19!1, the Financial Commissioner held that the person
actually working as patel was entitled to receive the
full emoluments of his office, and revenue officers had
consistently refused to admit any claims to shares in
patelki emoluments. Accordingly, he set aside the
order of the Commissioner and restored that of the
Deputy Commissioner.
Thereupon, the appellant
brought his suit in 1942 in which he claimed that the
Government had no jurisdiction or authority to resume
and regrant the lands to respondent No. 1 and the
orders passed by the revenue authorities concerned
were null and void. The appellant asked for possession and mesne profits. By a subsequent amendment
of the plaint, the appellant alleged that at least two of
the plots, 2JlA and 9/lA, had ceased to be "patelki
inam" lands and were private property of the family.
Therefore, in any view of the matter, Government had
no right to resume these two plots. His claim with
regard to these plots was alternatively placed on a
somewhat different footing and we shall, in due course,
consider that claim.
The suit was dismissed by the trial Judge, but on
appeal by the present appellant the learned Additional
District Judge of Amraoti decreed the suit. There
was a second appeal to the High Court of Nagpur
which allowed the appeal, set aside the decree of the
lower appellate court, and restored that of the trial
Judge. The High Court substantially held that (1)
the lands in suit were granted by the then sovereign
authority by way of remuneration or emoluments for
91
• Bhagw.mtrao
v.
Vishwasrao
and Another
S. K. Das].
l
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714
SUPREME COURT REPORTS [1960(2))
B!tagwantrao
~
services to be rendered by the patel and the grant was
recognised as a service inam by the British Government, and (2) it was open to the revenue authorities
v.
Vishwasrao
and Another
to resume and regrant the lands in accordance with
the provisions of the Patels and Patwaris Law, 1900
in force in Berar and s. 190 of the Berar Land
s. K. Das J.
Revenue Code, 1928. Thereafter, the appellant applied
for and obtained a certificate from the High Court,
and the present appeal has been brought pursuant to
that certificate.
To appreciate the points which have been urged
before us on behalf of the appellant, it is necessary to
state some more historical facts about the jagir village
Nawabag and the "patelki inam" lands comprised
therein. The original sanads by which the jagir of
Nawabag or the" patelki inam" was created have not
been produced in this case. There is no doubt, however, that both are of very ancient origin. Berar was
ceded by the Nizam of Hyderabad in 1853 and the
Inam Rules for settlement of jagir and inam claims
were made in 1859, Rule I whereof stated inter alia
that land which was proved to have been held as
inams, either under a fixed quit rent or rent.free for a
period of 40 years before the cession, was to be treated
by the British Government as inam possessed under a
valid title. The promulgation of the Inarn Rules was
followed by an inams investigation. Ex. P-1 is the
copy of an inam entry dated August 31, 1866. This
document shows that the jagir of Nawabag was
granted by the Kings of Delhi to one Shah Abdul Huq
originally. It was subsequently continued and confirmed by sanads granted by the Nizam of Hyderabad
in 1757.
The village had a total area of about 1,846
big has, out of which about 262 bighas were held by
pn,tels in lieu of their "huq "·in the proportion of 1
bighas per netan (a measure of nine bighas) .. The
Inam Commissioner stated that the jagir had been
held upwards of 100 years before the inam enquiry
and should be continued (except for an area of 200
highas for which there was no satisfactory proof) in
perpetuity subject to a quit rent of Rs. 87-8-0. There
is an earlier document, Ex. P-9A, of October 24, 1771,
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'S.C.R. · SUPREME COURT REPORTS
715
which shows that there was a dispute between the
jagirdars and the patels about the latter's right to get
H bighas of" patelki inam" land per "netan ". The
jagirdars disputed the claim of the patels and ultimately the dispute was submitted to the Nazim Sahib
of E!lichpur. The document contains the following
recital which shows that the" patelki inam" lands of
village Nawabag were also very ancient grants: "The
Nazim, after seeing from the previous records as to
who was in enjoyment, granted the mukaddami inam
of a bigha and a half from year to year as desired by
the mukaddaman. As per the old judicial usage, land
is calculated at the rate of one and half bigha per
netan and measured out from the lands of Nawabag
and the aforesaid mukaddaman are held to be
occupants of the said cultivated land". It appears
that out of 262 bighas of" patelki inam " lands in the
village, the Ro!mde family held about 11 plots,
approximately of about 50 acres. Sometime before
1904 some of the co-sharer-jagirdars of Nawabag
alienated the jagir lands to strangers. This led to resumption proceedings by Government, and ultimately
half of the jagir village was resumed by Government
in or about rn04-05. As a result of a detailed enquiry,
survey numbers 1 to 21 and 40 to 45 of the "patelki
inam " lands fell in the resumed portion and survey
numbers 22 to 39 were included in the jagir portion.
As survey numbers 2/lA and 9/lA in possession of the
Rokade family fell in the resumed portion, they were
recorded as Khalsa and were assessed to revenue,
while the remaining survey numbers viz. 29/1, 34/3,
36/2 and 37/2 continued to be in possession of the
Rokade family free of assessment. There was
another resumption proceeding in or about 1917 when
it was discovered that the jagirdars had alienated
lands falling in the jagir portion also. This time the
lands resumed were not made Khalsa but were regranted to the jagirdas. As a result of this regrant the
jagirdars thought that they were entitled to take
possession of the "patelki inam" lands of the Rokade
family also. This led to some more revenue proceedings, and we come now to one of the important
Bhagwantrao
v.
Vishwasrao
and Another
S. K. Das].
x960
Bhagwantrao
v.
Vishwasrao
and Another
S. K. Das].
716
SUPREME COURT REPORTS [1960 (2))
documents in this case, viz., a letter dated August 28,
1922, by which sanction of Government was conveyed
to the "exclusion from resumption of 25 acres and 15
gunthas of land in the khalsa portion of the village
and to the exclusion from the land regranted to the
jagirdar viz. of 24 acres 30 gunthas in the inam
portion of Nawabag jagir village''. The order made
by the Government further stated that the aforesaid
lands would be recorded in the name of Amrit Shivaji
Patel as his" patelki huq inam ". Some of the other
pate! families made an attempt to get a release of the
ioam lands held by them, which had since been
resumed; but this attempt proved unsuccessful and
Government held that an enquiry showed that with
the exception of Amritrao, no member of the old
patelki families except Deo Rao was in possession of
the old "patelki inam" lands and as Deo Rao did not
belong to a branch in which the right to officiation
resided, his claim could not be considered. The order
of Government in 1922, therefore, made it clear that
the "patelki inarn" lands of Amritrao formed one
homogenous, separate service grant and were not
dependent on the resumption of the jagir of Nawabag.
The proceedings of 1917-1922 were followed by the
proceedings of 1935.1941 which culminated in a
third resumption of the "patelki inam " lands and
regrant to Vishwasrao and to which we have earlier
referred.
These proceedings bring the history of the
lands in suit up to the time when the appellant brought
his suit in 1942.
Now, apart from the alternative claim with regard
to survey numbers 2/IA and 9/lA and the claim of
title by ad verse possession, which claims we shall
consider later, the principal question which falls for
decision in this appeal, is the true nature of these
" patelki inam" lands; do they constitute a grant by
way of remuneration or emoluments of the patel's
office by the use of the lands, as found by the High
Court, or do they constitute a grant of land to the
patelki family burdened with service and so long as
the service is performed by any mePJber of the family,
the lands are joint family fands subject to partition
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717
etc. among the members of the family? On behalf of
the appellant, it- has been very strongly contended
before us that the finding of the High Court on
this point is wrong. On this part of the case learned
counsel for the appellant has made a four-fold
submission; firstly, that the rights which the
Rokade family had in these lands were rights of
dealing with the property as owners, subject to a
member of the family rendering patelki service; or in
other words, the grant was a grant of land burdened
with service; secondly, the grant was made by the
jagirdar of village Nawabag and not by the sovereign
authority and neither the Inam Rules, nor the provisions of the Patels and Patwaris Law, 1900 applied;
thirdly, even if the aforesaid Rules and provisions
applied, the appellant still retained his hereditary
rights in the lands ; and fourthly, the orders of
Government dated August 28, 1922, did not confer any
new right nor did they deprive anybody of any subsisting right in respect of the "patelki inam " lands
and Government had no right to resume the lands and
"'regrant them to respondent No. 1.
The second submission can be disposed of without
much difficulty. We have already stated that the
sanads creating the jagir or the "patelki inam" have
not been produced. The earliest document we have is
the kararnama of October 24, 1771. That document
shows, as we have stated earlier, that there was a dispute between the jagirdars and the patels; the patels
were demanding I! bighas per netan as .their "huq"
and the jagirdars were saying that no such "huq" was
mentioned in the sanads granted to the jagirdars. The
dispute was referred to the Nazim, who was the local
representative of the then sovereign authority, and
t.he decision of the N azim was expressed by saying
" ue N azim granted the inam of a bigha and a
half from year to year for each netan; it was also
stated that this was supported by old judicial usage.
In our view the kararnama shows two things : first,
the grant of "patelki inam" of l! bighas per netan
was in its origin a grant by the sovereign authority
which the Nazim confirmed in accordance with old
Bhagwantrao
v.
Vishwasrao
and Another
S.K. Das].
Bhagwantrao
v.
Vishwasrao
and Another
S. J(. Das f·
718
SUPREME COURT REPORTS [1960 (2)]
judicial usage; secondly, that the grant was from year
to year in lieu of patelki services and was binding on
the jagirdars who agreed to be bound by it. The
entry in the Inam Hegister, dated August 31, 1866
(Ex. P-1) is to the same effect; it shows that 262
bighas were excluded from the jagir "as allowed to
pate! in lieu of his huq to l t bighas", in contradistil).ction to other petty inams allowed by the holders
(jagirdars) themselves. On behalf of the appellant
our attention has been drawn to Rules I and 11 of the
Inam Rules and to Rule XV; it has been submitted
that if the "patelki inam" was separate from and
independent of the jagir which was a class III inam,
a separate title deed in the form of an inam certificate
would have been granted in respect of the "patelki
inam" as a class lV inam. It may be, as the High
Court points out, that the " patelki inams " were not
separately recognised during the inam enquiry, and it ·
was then assumed as if these were interests carved out
of the lands granted to the jagirdars. There is, however, clear evidence in the record that the "patelki
inam" of this case was independent of the jagir. ,,
Immediately after the first resumption proceedings
against the jagirdars in 1904-05, the position of the
patels came under consideration of the revenue
authorities. In 1906 one Moti of Dongre family was
appointed pate! by the Sub-divisional officer, Ellichpur.
In 1907 Amrit, son of Shivaji, was appointed pate! in
the Rokade family to officiate in rotation with Moti.
This appointment was made by the Deputy Commissioner. In 1908 there was a dispute between the
jagirdars and pa tels and the order of the Sub-divisional
officer who decided the dispute said :
"The Jagirdar says that his family appointed Patels
from the watan family, but this is not borne out by
such papers as exist. There is a petition dated 4-1-67
from the ,Tagirdar 11equesting the Revenue authority
of the time to appoint a certain person as Patel. At
that period then the Revenue authorities and not the
Jagirdar appointed the Patel.
The Pa tels are village servants only and are responsible only to the Government and not to the Jagirdar.
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SUPREME COURT REPORTS
719
The Patel family has had watandari rights for
certainly 150 years or so.
I am ·of opinion therefore that the watan seems
independent of the Jagir."
This dispute went up to Commissioner Sly (later Sir
Frank Sly) and he held that the patelki is a watan
independent of the jagir, andhe approved the proposal
for rotation between Moti and Amrit. The "patelki
inams" were treated on the same basis in the resumption proceedings of 1917 -1922, and by the order dated
August 28, 1922, Governrμent excluded the " patelki .
inam" lands from the resumption proceedings relating
to the jagir on the footing that they were separate
from and independent of the jagir. Mr. Walker,
then Financial Commissioner, said in his order dated
August 7, 1918, (Ex. ID-II):
"Although the Patel holds no Inam Certificate, I
agree with the Commissioner that the inam resumption procedure which was necessitated by the action
of the jagirdar, ought not to upset the arrangement
concerning the Patels, which was made at the suggestion of His Exalted Highness the Nizam's G6vernment
many years ago. To give effect to this view, it will
be necessary to reopen the enquiry as regards the
whole village-both t:\J.e khalsa part and the regranted
inam part-and to determine what fields in each
represent the original grant of 262 bighas to the Patel
in lieu of his huq. When that area has been determined, the orders of resumption will have to be
modified so as to exclude it."
There is, therefore, overwhelming evidence in this
case to show that the patelki inams were separate from
and independent of the jagir of Nawabag, though the
lands lay within the jagir village.
This brings us to the more important questionwhat is the true character of the "pafrlki inai:u" lands
of this case ? On this point also, we I hink that there
is clear and unimpeachable evidence in support of the
finding of the High Court. We have already referred
to the kararnama of 1771 and the inam entry of 1866.
If the grants were a grant of land to the patelki
'
r960
Bhagwantrao
v.
Vishwasrao
and Another
S. K. Das].
r960
Bhagwantrao
v.
Vishwasrao
and Another
s. K. Das].
720
SUPREME COURT REPORTS [1960(2)]
families burdened with service, it is difficult to understand how there could arise a dispute about remuneration between the jagirdars and patels and why
the remuneration of 1 ! bighas per netan should be
fixed from year to year.
In a revenue case of 1908
Amrit Patel had himself stated that the land was given
to his ancestors in lieu of patelki huq and it should
not be assessed to land revenue. Even in his plaint,
the appellant had asserted that the "Patels were
given certain lands out of the jagir village for their
working as patels and for discharging other duties."
There is another important document in this connection. In the second resumption proceedings of 1917
Government had first decided to resume the jagir and
regrant it to the then Jagirdar Amerulla Khan. In
the orders passed (Ex. ID-18) it was stated that the
Jagirdars would be at liberty to allow the working
patels to hold such lands as were considered reasonable by the Deputy Commissioner free of revenue and
in lieu of mushahara (emoluments or wages). It is
important to note that everybody understood then
that the "patelki inam" was in lieu of wages or
emoluments for the office of patel. These orders led
to an enquiry, and Amritrao made a statement that
he was holding survey numbers 26 27, 29, 34, 36 and
37 in lieu of patelki emoluments. He said that he was
even willing to hold 4 acres 17 gunthas of survey
no. 27 in lieu of his emoluments. It appears that the
Sub-divisional officer then recommended that Amrit
Patel should be given only 4 acres 17 gunthas, as
emoluments for his office.
Later, an application was
made on behalf of Amrit, which was signed by his
brother, the present appellant as his agent, in which
occurred the following significant statements:
"The learned S.D.0. has again lost sight of the
fact that the family of the applicant has been doing
the work of the Patel from a very long time, that in
the early days of the Berar Administration when land
had no value and did not fetch the income it is doing
now, the applicant and his predecessors worked to
what they would get from the land. Cash had more
value then than land and hence the Inamdars thought
•
..
_,
-
-
-
S.C.R.
SUPREME COURT REPORTS
721
it is advisable to commute money payment into land
grant.
.....................................................................
.......................................................................
That the learned Sub-Divisional Officer has lost
sight of the fact that in the inam enquiry and the
sanad granted to the Inamdar of the Nawabag1Jahagir
in 1866, the land in the possession of the applicant has
been deducted from the area of the village and it is
only the rest of the area that is made over to the
Inamdar, vide, Co. 5 of the sanad viz. area of grant.
This shows that in 1866 the area reserved for the
Patel was considered as a fair remuneration in kind to
the Patel for his work."
These statements show clearly enough what the
appellant and his brother Amrit, understood to be·
the character of the " patelki inam " lands ; they
clearly said that the lands were given in lieu of
emoluments or remuneration. This view ultimately
prevailed and the earlier orders were modified on the ·
recommendation of Commissioner Standan who said
that the lands held by the patel as " patelki inam "
should be excluded from resumption and the patel
should be allowed to hold the lands free of any payment in lieu of cash remuneration for his office. In
the result were passed the orders dated August 28,
1922, to which a reference has already been made.
These transactions and the statements made therein
are admissible, in the absence of the sanads creating
the grant, to show how the parties themselves· have
understood and dealt with the grant in contested
revenue proceedings between the jagirdars and patels.
On behalf of the appellant it has been submitted
that there is evidence in the record to show that some
of the patels had alienated " patelki inam" lands
and the "patelki inam" lands of each patel remained
with him, in spite of the fact that the office was held
in rotation ; these circumstances, it is contended,
militate against the view that the grant was a mere
grant of office with emoluments in the shape of Inam
lands. We are unable to accept this contention as
correct. The statement of the appellant himself in a
9:1
r960
Bhagwantrao
v.
Vishwasrao
and Anolhor
SK Das].
Bhagwantrao
v.
Vishwasrao
and Another
S. K. Das].
722
SUPREME COURT REPORTS [1960(2)]
revenue case of 1937-38 (Ex. ID-15) shows that the
lands alienated by the other patels were resumed and
regranted to the jagirdar in the resumption proceedings of 1917-18. After Amritrao had succeeded in
getting his " patelki inam " lands excluded from
resumption, the other patels also unsuccessfully
attempted to get their lands released-a circumstance
to which we have earlier referred. This shows that
Government never accepted the position that the
"patelki inam " lands could be freely alienated; on
the contrary, the evidence in the record shows that
Government had resumed such Janus on more than
one occasion.
As to the second circumstance, it is
indeed true that the office was rotatory (this is provided for in s. 3 of the Patels and Patwaris Law, 1900);
but each pate! retained his inam land even when it
was not his turn to work as pate!. We do not however,
consider this circumstance as establishing that the
grant was other than what the High Court held it to
be. Section 3 of the Pa tels and Patwaris Law, 1900
says in clear terms that when there are two or more
patels in a village and the duties can, in the opinion
of the Deputy Commissioner, be efficiently performed
by one pate], the Deputy Commissioner can direct
that each pate! shall hold office in turn by rotation
for a term of not less than 10 years. This does not
mean that a patel ceases to be a pate! when his turn
is over ; he continues to be a patel and enjoys his
emoluments.
We propose now to examine the position under the
Inam Rules, 1859, the Berar Patels and Patwaris Law,
1900 and the Berar Land Revenue Code, 1928. The
argument on behalf of the appellant is that even
under the Inam Rules, he is entitled to his share in
the "patelki inam" lands, so long as a member of the
family works as pate!. Learned counsel for the
appellant has drawn our attention to Rules V and VI
and has submitted that being a service inam, the
" patelki inam " would come under the fourth class
mentioned in Rule II and would be governed by
Rule VI(2) which says :
"Inam'! granted in lieu of lands or money stipends,
commonly called huqs and ressums of offices, such as
'
-
-
..
' -
-
-
'
S.O.R.
SUPREME COURT REPORTS
723
Deshmukh, Deshpandia, and others the service of
which has either been dispensed with or otherwise
discontinued, shall be disposed of according to clause 2
of the Rule V, if they are hereditary. in their terms,
either by express declaration of Government or by
recognized usage. Nothing in this rule shall be
deemed to apply to cash allowance known as ressums
or lawazamas granted to Deshmukhs and Deshpandias
in lieu of emoluments previously payable to them."
That Rule refers to clause (2) of Rule V which
reads:
"If the present incumbent is a descendant of the
original grantee, the inam will be continued to him
hereditarily, subject to the following conditions:-
First-Successions limited to direct lineal heirs
and undivided brothers.
Second-The inam escheats to Government on
failure of such heirs.
Third-Future alienation of the inam is prohibited.
Fourth-The right of adoption to an inam is not
recognized."
The contention before us is that under Rule VI(2)
read with Rule V(2), the appellant was entitled to his
share in the " inam " as an undivided brother of
Amritrao, Patel. We do not think that this contention
is correct. For one thing, Rule VI(2) applies to inams,
granted in lieu of lands or money stipends, the service
of which has either been dispensed with or otherwise
discontinued. That is not the case here. Secondly
clause (8) of Rule VI makes it clear that when the
inam attached to the office is wholly or partially in
the enjoyment of members of the family who dp not
perform service, such portion of the alienated inam as
may be considered necessary for the efficient performance of the duties will be attached to the officeholders, and Rule XIV(2) says that service grants are
not liable to be alienated by purchase or otherwise.
Rule VIII explains the term 'inam' and Rule II also
has a bearing on the question before us. It says, so
far as it is relevant for our purpose:
" The settlement will be made with the head member of the family holding the office or enjoying the·
z960
Bhagwantrao
v.
Vishwasrao
and Another
S. K. Das].
I960
v.
Fishwasrao
attd Another
S. K. Das].
724
SUPREME COURT REPORTS [1960(2)]
inam and who will be held alone responsible to
Government, and in no case will the Government
interfere to compel the actual incumbent of an office
to make over any portion <if his regulated service
grant to other branches of the family, as service
grants cannot be divided according to the orders of
Government ... "
Rule XXI(2) says interalia that in respect to service
grants, the decisions of the Commissioner and the
Resident respecting lands held free by the village
officers as remuneration for service, shall be considered
final.
From these Rules it is manifestly clear to us that
there is nothing in them on the basis of which the
appellant can claim as of right that he has a share in
the "patelki inam " lands as a member of the patel's
family, irrespective of whether he performs the service
or not.
The position under the Patels and Patwaris Law,
1900, appears to be clearer still. Section 9 of the
said Law states that the emoluments appertaining to
the office of the pate! or patwari shall be enjoyed
solely by the person for the time being holding the
office; even a substitute shall receive the whole of the
emoluments appertaining to the office, unless the
Deputy Commissioner otherwise directs, and if there
are two or more patels in a village, the Deputy
Commissioner shall determine. the proportions in
which they shall share in the emoluments of office.
Sections 10 and 11 say that the emoluments appertaining to the office of pate! shall not be liable to attachment or sale, and every assignment thereof shall be
void.
Under s. 20 the jurisdiction of the Civil Court
is barred with respect to any claim by any person to
any emolument appertaining to the office of pate!.
These provisions clearly indicate that the "patelki
inam" lands are subject to orders passed by the
revenue authorities in_ respect of the matters mentioned
therein, and no right is given to a member of the
family of the pate! to claim a share in the emoluments.
The power to resume lands granted on condition
that the holder shall render certain services is
• -
-
,
-
-
-
S.C.R.
SUPREME COURT REPORTS
725
specifically referred to in s. 190 of the Berar Land
Revenue Code. We quote below the material portion
of the section :
"Section 190(1)-If alienated land has been
granted on condition that the holder shall render
certain services or incur expenditure for the benefit
of the community or any section thereof, and the
holder fails to render such services or to incur such
expenditure to the satisfaction of the Deputy
Commissioner, or, ifthe holder trnnsfers the land in
such a manner that, in the opinion of the Deputy
Commissioner, the purpose of the grant is likely to
be defeated, the Deputy Commissioner may declare
such land to be forfeited.
(2). Land forfeited under this section shall vest in
the Crown for the purposes of the Province free of
all encumbrances and shall be regranted on the
original conditions made under this Law."
Section 192 says inter alia that no civil court shall
entertain any suit to obtain a decision on any matter
which the revenue authorities are empowered under
the Law to determine, and among the matters mentioned in the section, is any claim against the State
relating to any property or emoluments appertaining
to the office of any hereditary officer or servant. These
provisions also negative the claim of the appellant.
We proceed now to consider certain decisions on
which learned counsel for the appellant has sought to
place reliance. We may notice here one comment
made by him. He has submitted that the High Court
has relied on ;the decision of the Privy Council in
Venkata Jagannailha v. Veerahadrayya (1) where the
question was whether the karnam service lands
enfranchised to a karnam, a village accountant in
Madras State, were subject to any claim of partition
by other members of the family, and his comment is
that the " patelki inam" lands in Berar stand on a
footing different from karnam service lands in Madras
and there are decisions in which it has been held that
co-sharers have a right to a share in service grants in
Bera.r. The first decision to which our attention has
,
(I) (1921) L.R. 48 I.A. 244.
Bhagwantnio
v.
Vishwasrao
and Another
S. K. Das].
I
Bhagwantrao
v.
Vishwasrao
and Another
S. K. Das].
726
SUPREME COURT REPORTS [1960 (2)]
been drawn is Krishnarao v. Nilkantha and Others (2 ).
That was a case of a jagir, and it was held that it
came under the third class, and nothing regarding
service was mentioned 'in the terms of the original
sanad. The decision proceeded on the basis that the
ordinary rule is that if persons are entitled beneficially
to shares in an estate, they may have a partition. It
was further held that property consisting of an
ordinary inam village was liable to partition at the
suit of a co-sharer except when it was held on a
saranjam or other impartible tenure or where the
terms of the grant impose a condition upon its enjoyment. We do not think that this decision establishes
what the appellant is seeking to establish in this ca~e,
that is, that he has a share in the emoluments of the
patel's office.
The next decision is that of the Privy
Council in Mir Subhan Ali v. lrnami Begum('); all
that was laid down there was that the devolution
and incidents of an inam estate in Berar were regulated by the Inam Rules, 1859, but only in matters not
mentioned in the sanad or certificate or other document evidencing the special terms of the grant in the
particular case. The fundamental question at issue
there was one of construction, namely, whether the
beneficial interest in the Inam granted to a common
ancestor of the parties and continued by the British
Government in 1866 passed under the terms of the
grant then made to all heirs of the grantees according
to Shia Mahomedan Law or whether the interest
devolved on the male descendants only. It was not a
service grant, and no question of a share in the
emoluments of the patel's office arose there. In
Lakhamgouda Basavaprabhu Sardesai v. Baswantrao and
Others(') the Privy Council pointed out the distinction
between the grant of an office to be remunerated by
the use of land and the grant of land burdened with
service; it said that in the former case, the land would
be prima facie resumable but not so in the latter case,
unless the terms of the grant or the circumstances in
which it was made established that it was resumable.
(1) A.I.H .. t1922) Nag. 52.
(2) (1925) 21 Nag. L.R. 117.
(3) A.LR. (1931) P.C. 157·
•
-
-
-
......
...,
S.C.R.
SUPREME COURT REPORTS
727
In the case of Jaiwantrao and Another v. Sahebrao (1),
the inam certificate issued to the head of the senior
branch of a family of Deshmukh watandars stated
that the village was granted "for personal maintenance to the claimant, his descendants and co-sharers";
Accordingly, it was held that a co-sharer was entitled
to possession of his share appearing from the inam
statement. In Raje Shrinivasrao v. Raje Vinayakrao (2)
there was grant of two villages to the great-grandfather of the appellant and the respondent, who were
brothers, and "his lineal heirs" or " his successors".
The question was whether primogeniture was to be
the order of descent or the estate was impartible. It
was held that the ordinary principles of Hindu Law
were applicable and the earlier decision in Mir Subhan
Ali v. Imami Begam (3) was referred to. Here again
the grant was not a service grant, and no question of a
claim of a share in the emoluments of office fell even
for consideration, not to speak of decision.
We consider it unnecessary to multiply decisions.
It is enough to state that no decision has been brought
to our notice in which it has been held that a member
of the patel's family is entitled as of right to fa share
in the emoluments of the patel's office and that
Government has no right to resume " patelki inam "
lands and regrant the same to the officiator.
It remains now to consider the special claim with
regard to survey numbers 2/IA and 9/IA.