Case: Nedunuri Kameswaramma Vs. Sampati Subba Rao

2. The suit was simple, but as it went on from appeal to appeal, It has widened out. It was filed by the appellant for ejectment of the respondent from 4.80 acres of jeroyti land bearing R. S. No. 186/1-2 in Nedunuru Village and for mesne profits. The suit was based on a kadapa executed by the respondent agreeing to pay an annual rent of 58 bags of paddy and a sum of Rs. 38/- towards thirwa and cesses, the appellant undertaking to pay the jeroyti tax. The respondent agreed to vacate the land peacefully at the end of the year of tenancy. This kadapa is Ex. A-1 dated April 4, 1951. Similarly, yearly kadapas were executed in earlier years, and some of them executed between 1931 and 1948 were also produced in the case.3. The respondent, however, raised many pleas. He denied that the land was jeroyti land, and alleged that it was part of a Dharmila inam land bearing R. S. No. 186/1-2, that the inam was granted to the appellants predecessors more than 100 years ago, that the respondents ancestors were ryots of that land from the very beginning, though muchalikas were taken from them every year and were executed by him and also his predecessors out of ignorance and under threats. The respondent claimed the kudiwaram rights for himself and averred that the appellant had only the melwaram rights which she lost, as they became vested in the Government after the Estates Abolition Act. He, therefore, contended that the appellant was now entitled only to a right to compensation, but had no right to the kudiwaram or the right to bring the present suit. The respondent also alleged that the appellants husband who was a karnam had himself made entries in the Adangal accounts which he maintained, showing the suit land as Dharmila inam.4. The appellant did not seek permission of the Court to file a rejoinder to the pleas of the respondent, but must be taken to have denied them. It appears that in the trial her stand was that this was not Sarvadumbala inam but a Karnikam service inam, i.e., an inam in lieu of wages for village service, which was resumed by the Zamindar of Pithapurarn, who granted a jeroyti patta (Ex. A-5) on September I, 1925 to Vakkalanka Venkatasubbarayudu, the predecessor of the appellant. The question which was thus tried by the District Munsif, Amalapuram, embraced an issue as to whether the suit land was a Dumbala Dharmila inam before 1925 and had continued till the Estates Abolition Act was passed and enforced, or whether it was a Karnikam service inam granted by the Zamindar of Pithapuram, who could and did resume it in 1925 regranting the land to Vakkalanka Venkatasubbarayudu. It is clear that if the suit land was a Dharmila Dumbala inam,. the appellant would have had only melwaram rights, which she must be deemed to have lost under the Estates Abolition Act and consequently the respondent would now be considered to have become a ryot. If the suit land was a Karnikam service inan.., then the resumption by the Zamindar of Pithapuram in 1925 would be valid and the regrant to Venkatasubbarayudu would make him a tenant and the respondent, a sub-tenant liable to ejectment according to the terms of the kadapa executed by him. Unfortunately, by reason of the fact that the pleas on the subject of Dharmila inam were exclusively raised in the written statement, which pleas were not traversed by the appellant, the issue framedthe suit land is a Dharmila inam and if so, whether the suit in ejectment isissues whether the land was a Karnikam service inam and whether there was a valid resumption and a valid re-grant, were not framed. Before the District Munsif, Amalapuram, however, parties led their evidence on the issue, as if it embraced all the other issues not specifically framed. Twice the case was reopened to give the respondent a chance to lead more evidence, though even so late as that, no attempt was made to get the issue modified or the proper pleadings to be made. After the District Munsif decreed the suit, a ground was raised before the Subordinate Judge, Amalapuram in appeal that the respondcnt had been prejudiced, because the decision was given without any plea or issue that this was a Karnikam service inam, which decision lay at the root of the decree. The learned Subordinate Judge in the appeal before him held that the absence of the issue regarding the Karnikam service inam had not prejudiced the respondent, who had himself set up a case of Dharmila inam and had also met the case of a Karnikam service inam and had filed documents and led evidence in refutation of the other case. He upheld the decision of the district Munsif that this was a Karnikam service inam, and confirmed the decree passed by him. on second appeal, the learned single Judge in the judgment under appeal held that the suit deserved to be dismissed on the short ground that the decision of the two Courts below proceeded on a matter not pleaded or raised as an issue. He, however, went on to consider whether the land in question was a Sarvadumbala Dharmila inam or a Karnikam service inam, and came to the conclusion that the two Courts below were wrong in holding that it was a Karnikam service inam. He, therefore, allowed the appeal, and ordered the dismissal of the suit.

Reasoning:
14. From the above, it will be seen that after the passing of Act II of 1894 the karnams were to be paid in cash and the Act enabled the enfranchisement of lands granted on favourable terms to the Karnams. The lands granted by the State were to be enfranchised by the State and those granted by the Zamindar by the Zamindar. The learned single Judge was of the view that the lands granted or held by way of remuneration for the performance of the village office such as that of a karnam could only be enfranchised by the State Government and not by the Zamindar, who had nothing to do with such lands. The action of the Zamindar in this case in 1925 to resume the lands and to re-grant them by a jeroyti patta was thus said to be entirely without jurisdiction. It was held that if these lands were originally Dharmila inams, they could not be resumed by the Zamindar, nor re-granted, and the learned Judge was of the further view that there was no such thing as a karnam service inam.15. The words of S. 17 of Act II of 1894 quite clearly show that lands could be granted for village service either by the State or by the proprietor. The title of the Act is "Proprietary Estates Village Service."The words "village servicer" are used in the second proviso to S. 17. Much distinction cannot, therefore, be made between village-officers and village servants as is made in the Madras Hereditary Village-offices Act, 1895(III of 1895). We do not think that the second proviso is only limited to lands granted by the proprietors to village artisans or village servants such as the astrologers and the purohits. Even in the Hereditary Village Offices Act, the term "officer" is used not only in the title but in connection with artisans and village servants. The gist of S. 17 thus was that lands granted for the remuneration of the karnams were to be resumed by the State if granted by the State, and by the proprietor, if granted by the proprietor.16. The land in question in this case has not been shown to be granted at any time by the State. Resumption by the State under S. 17 was thus out of question. The only question is whether it was a Dharmila inam, i.e. a personal service inam granted after the settlement or a grant for Karnikam service. That the land was held as Karnikam service inam on the date of resumption is amply proved by the proceedings themselves. The question is whether it was a Karnikam service mare. on this point, the oral evidence has not been considered, and we have thus only the documents filed by the parties.17. Of these documents, Exs. B-37 to B-43, which are the Dharrnila inam accounts of Nedunuru village for Fasli 1290 relating to Palivela Thana need not be considered, because it is impossible to connect them with the suit land. Similarly also, Ex. A-17 series, the file of assessment receipts. showing payment of taxes to Pithapuram Estate, are all after Ex. A-5, and do not add weight to it. They also concern diverse lands, and cannot be said to clinch the issue. Exhibits A-8 to A-11, A-14 and A-15 are the previous Kadapas executed in favour of the appellant similar to Ex.A-1, on which the suit was based. They are not relevant to decide the controversy, except in so far as there is an admission by the respondent that he has taken these lands on a yearly lease. Exhibits B-4 to B-12 are the assessment receipts from the jeroyti ryots. They do not mention the suit land, but the name of Vakkalanka Venkatasubbarayudu is mentioned in them. They show that Venkatasubbarayudu was paying jeroyti tax to the Estate from 1888 to 1901, which is the period covered by the receipts. These too cannot be said to help the appellant, because the identity of the lands again is not clear. The remaimng documents undoubtedly speak sometimes of the land as Dharmila inam and sometimes as held for Karnikam service. The documents on which the appellant relies are divided into two parts, those after the pasta, Ex A-5 dated September 1, 1925 or in connection with the grant thereof, and those before the grant of the said pasta. Exhibit B-1 is of the year 1903 and is a certified extract of the land register of Nedunuru village for the suit land, and there, it is clearly shown that this was a dharmila inam held for Karnikam service. Exhibits B-14 and B-15 both of June 15, 1903 also show the same thing. The first is a certified extract of a statement of Vakkalanka Venkatasubbarayudu before the Deputy Inam Collector, and the land is described as "Paikars Mirasi in Karnam Service" The other also mentions it as a service inam. These documents donot bear out the contentions of the respondent, even though Vakkalanka Venkatasubbarayudu seemed to have objected at the time.This shows that by 1920-21 the change in the law under which there was a money payment for Karnikam service was taken note of, and the lands were asked to be resumed by the Zamindar under S. 17 of Act II of 1894. In Exhibits A-3 and A-4(1923 and 1924). the Dewan again orders resumption of these lands, and in the latter, notice was ordered to be sent through a vakil. This notice was apparently issued in October, 1924, and the reply to it was given by Vakkalanka Venkatasubbarayudu in Ex B-34, where he stated that the lands wee not Dharmila Karnikam service inam. The admission of Vakkalanka Venkatasubbarayudu is used by the respondent as an admission against himself; but it is quite clear that Vakkalanka Venkatasubbarayudu made that statement merely to avert resumption of the lands, which was quite contrary to the facts already stated by us. Indeed, the Pithapuram Estate did not pay attention to it, and took a statement from Venkatasubbarayudu on September 1, 1925 (Ex. B-35) that he was willing to have a jeroyti patta, though he stated that his action was without prejudice to any case that he. might file in Court. Venkatasubbarayudu never filed a suit, and accepted Ex A- 5, the jeroyti patta in 1925. In addition to these documents, the appellant relied on Ex. A-12, an important document of l904, which is an extract from the Survey and Settlement Register. This land is there shown as held for karnarn service. He also relied on Ex. B. 25, but that is not a document relating to this land.19. From the above it will appear that right from 1903 to 1925 this land was treated as held on karnam service inam liable to be resumed by the Zamindar . The other documents show that it was, in fact, so resumed and a jeroyti patta was given, and in all the subsequent documents, it is described as jeroyti land.20. The other side relies upon some accounts which have been summoned from the Estate. Exhibits B-28 to B-30 are the Bhooband accounts of 1834, 1850 and 1851. They relate to some lands which are described as dumbala inams in Chalapalli-Nedunuru group. These accounts cannot be connected with the suit land, and no legal inference can be drawn from them. Exhibit B-36 (1906) is the Jhadta account of Fasliis no proof why this entry was made in the Jhadta account, who wrote it and when, and the entries are contradicted by the action of the Zamindar between 1921 and 1925 under which these lands were, in fact, resumed, which they would. not have been if they were Dharmila inam. This endorsement was held by the District Munsif not to have been proved. P. W. 1. could not depose of this fact, and we must treat the endorsement as inconclusive. The next is Ex B- 42 of 1892. That is a Dharrnila Inam Statement of Nedunuru Palivera Thana. The Pelivela Inams, according to the remarks column, were granted for ferry service. There is an entry in the name of Vakkalanka Venkatasubbarayudu under the heading "Shrotriem or servicer, and the entry there reads: "Dharmila Inam", but the extent of the land and its numbers are missing, and thus, there is no satisfactory evidence that this was the land which was describeddocument does not throw any light upon the controversy, in view of the lack of material to connect it with the suit land. Exhibit B-2 is the Adangal Register of Fasli 1333, and the land is shown there as Dharmila inam. It is said that this Adangal Register was written by the appellants ancestor, who was the karnam. The fact that he was the karnam concedes a great deal of the appellants case. The entry made by the then karnam in a register which might not have been accurately maintained, cannot lead to an inference that he made this entry against his own interest. In fact, these people were claiming about that time that they had a Dharmila inam, so that it would not be resumed, and it may be that the entry was made merely to support a case. Similarly, Ex B-26 of 1920 is another account, and might have been written with the same object. The last document is Ex. B-28, which is a list of the dumbala inams in the Zamindari. There are no numbers of the lands, and there is thus nothing in it to connect the list with the land in suit.21. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmila inam, in the trial Court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two Courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.