"''"uarJ 20.

324 SOPREME COURT REPoRTS [1962) SUPP.

GONDu.'.IJOGULA TATAYYA v.

J>ENUMATCHA A2\'ANDA VJJAYA VENKATAHAMA THfMA , JAGAPATHH~AJL'

(AND COX~ECTJ<:D APPEALS) (S. K. DAS, M. HlllAYATULLAI! and J.C. SHAH, JJ.)

fnan1. lands-Lcrts1-s-Right aj occupancy-Jfinor ina11u~ -- lr!ie1h1r Fslates --Tc.t--Jfadra" Est<11':• Land Act, 1908 (Jlad. 1 of JYll8), ""amended, s. 3(2)(d) and Explanation (1).

'fhc respondents v-erc holders of inams in a village called Gotcru, one of the Mokhasa yjlJ; Jgrs which ,, ere included iu

the assets of the Zamindari at the time of the permanent sctt!rment in 1802. The inan1s theinselves \\ere pre-settlement inams and were not included in the assets of the ZamincJari. rhc respondents had leased out scrr1c of the lands cou1prised in their inams to the appellant for a fixed period, and in the suits instituted against the latter .:iftcr the expiry of the period of the leases for ejecting rhem f1om the holdings in their possessions, they pleaded, inter alia, that they had got occupancy rights in the suit lands inasmuch as the inams \Vere part of an estate and that, therefore, they \Vere not liable to he ej('cted.

They contended that by reason of the amendments made ins. 3(2)(d) of the Madras Estates Land Act, 1908, in I 93G and I 9-t5, these minor inams being within the village of Gotcru v-erc estates und("r s. 3(2)(d), read with Explanation ( 1) of the Act.

It was not dispiHed that Goteru village was included in the Jlukha"'' sanad of 1802 and that the Mokhasa grant v0.-as an estate.

Jfeld, that the minor inams in the present case were not ); rants of v-'1o!e villages and y., ere not, therefore, estates within the meaninsofs. 3(2)(dJ ol the Madras Estates Land, 1908.

1'he crucial test to find out \vhether a grant amounted to an estate as defined under" 3(2)(d) of the Act was whether at the time of the grant tl.c subject matter was a whole village or o"nly a part of it.

If it \Vas only a part of a village, then the: amending Act made no difference and such a part \Vould not be an estate v-ithin the rneaning of the term ; but if the grant was of the whole village and a named one, then it \\'ottld he an estate

District Board, 1'anjuri; '" J/. K. "l!-loor Jfohamed llo1rtlicr, A-1 !{. 1953 S.C. 446 and Jfontramdi Hhat'Gnaravana v. Meri:gn Venkala<lu, 1-L.R. [1951] Mad. 116, relied on and applied.

3 s.C.R.

SUPREJME COURT REPORTS 325

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

Appeals by special leave from the judgment and decree dated April 20, 1954, of the Madras High Conrt in Second Appeals Nos. 1228 to 124:! of

1~9. . ..

R. Mahalingier and Ganpat Rai, for the appellants.

A. V. Viswanatha Sastri and T. V. R. Tatachari, for the respondents.

1962. February 20. The Judgment of the Court was delivered by 's. K. DAS, J.-These are fifteen appeals by Apecial leave. They have been heard together as they arise common question of law and fact and thiB judgment will govern them all.

These appeals arise out of fifteen suits filed by certain inamdars (respondents herein) of a village called Goteru for ejecting the tenants, who are the appellants before us, from various holdings in their possession after the expiry of the period of their leases and for other reliefs, such as, arrears of rent and damages.

Tho lands lie in village Goteru, one of the villages in tho N nzvid zamindari.

Got<'ru, Komaravaram and S11rampudi are three

:11 olchasa villages in the rnirl zamindari. It was arlmitted that the M olchasas were included in the

assets of the z11minrlari at the time of the permanent settlement in 1802. Tho case of the inamdars respond1mts was that in ei!lht of the suits the land was a Krtrn<un service inam and in seven suits the hnd w11s a Sarvadumbala in am. These inams lands were settlement inams and enfranchised by the Government on the basis that they were excluder! from the assets of the Mmindari at the time of the perma . neut settlement and separate title deeds were subsJquntly issue•I to the inamdars. According to t4e inadars tqese ina~ l!qdd >y"er'il qot "et!\t\l~"

Go1idumogula T4tayy•

•• Penumatclia Ananda

Vi1a a Venkala•

rama Timma.

J a1:apathiraJu

Das J,

Gonlumoyulo

Tal•.Y.Ja

Pt1UJ111at, M An.,, Ja

Vij; i; s Vtnk.Jlaroma Timma J •1npathaju

/)as J.

326 SUPREME OOURT REPORTS [1962] SUPP.

within the meaning of s. 3 (2) of the }fadras Estates

Lands Act, 190~ (Madras Act I of 1908 ), and the inamdars were entitled to both Jfdvaram and Kudivaram therein ; the respondl'nts leai; ed out these lands to the appellants for a fixed period under an express contract with the appellants, who were the lPssees concorned, thn, t they would quit and deliver possession at tho end of their lease periods; the appellants, however, did not vacate the lands, but continued to be in possession. Twelve

acres and 52 cents of the suit lands wero lfornam service inam and the rest Sarvadnmbala inam.

The appellants contPnded inlff alia that. the suit lands formed part of the llfolcha.sa of village Goteru and were included in the asPets of the 7..amindari at thC' time of pC'rmanent settlcmt>nt. that thP inams were part of an estate and the appellant had acquired rights of occupancy in the lands in suit under the provisions of the :lfadras Estates Land Act. They also raised certain other picas with which we are not now concerned. The main defence of the appellant.~ w:is that they had got pC>rmanent occupancy rights in the suit lands and therefore, they were not liable to be ejected and the Civil Court had no jurisdiction to try the suit.~.

The learned District :lfunsif of Tanuku who tried tho suits in the firRt inst:ince dealt with them in three batches. He held in three separate judgments that the suit lands wero pre-sdtlement minor inams, that they wcro not included in the assets of' the zamindari at the time of tho permanent settlement and that thev were not "estates" within tho meaning of the proi"ions of th~. Madras Estates

Land Act.

The learned :IIunsif also held that as there was a clear undertaking to vacate the lands at the expiry of the period of the leases, no notico to quit was necessary. In the result ho decreed the suits.

The tenants, appellants herein, then preforred j'lfteen appC>als against the judgments nq

...

3 S.C.R.

SUPREME COCJR L' REPORTS 321

decrees of the learned Munsif. These appeals were heard together by the learned Subordinat~ Judge of Eluru. By a common judgment delivered on March 29, 1948, the learned Subordinate Judge agreed with the learned Munsif in respect of all the findings and dismissed the appeals. Then; there were second appeals to the High Court of Judicature at Madras. In these second appeals only two points were urged on behalf of the appellants. The first point was that the finding of the courts below that the suit lands were excluded from the assets of the zamindari was vitiated by reason of the burden of proof being wrongly placed on the appellants. The second point was that the inamdars having concerned in the plaints that the tenants were holding over after the expiry of their leases, the inamdars were not entitled to recover possession without issuing notices to quit as required by law. With regard to the first point of the High Court pointed out that though it was settled law that the burden wa5 upon the landlord to ake out his right to evict a tenant from the holding, Sarvadumbala inams or inams granted for public services of a pre-settlement period were ordinarily excluded from the assets the of zamindari at the time of the permanent settlement except in some specific cases, where such lands were as an exception included in the assets of the zamindari, the exceptions being found in the four western Palayams of the zamindaries of Venkatagiri, Karvetnagar, Kalahasti, and Sydapur and the !J!okhasa in Masuli pa tam district. Therefore, with regard to pm-settlement Sarvadambala irrnms or public service inams the peroon who alleged that they were included in assets of the zamindari had to prove that they were so included.

The High Court then observed that the courts below did not base their judgments on onus of proof, but came to. their conclusions on a consideration of the evidence :given in the suits ;

~4erefore where tqe entire eyiqence was one into,

Goniumogula

Tatayya

•• Penum1tcha Ananda

Vijaya Venkai4

rama ri.mma Jagapathiraju

Das J.

G"ndumogula

Totayya

Vo l'r.u1T11Jfc1ra A11QJ1t/t1

Vi1._,. Vtn-"l12

,.,,,. 7 inrma J agopalhiraJU

nos J,

328 SUPREME COURT REPORTS (1962] SUPP.

the question of burden of proof was immaterial. The High Court pointed out that the question whether tho predecessors of tbe respondents herein were grnnted both tho '1'nram-s or Jfelmram only was not rnised before it and the contentions of the parties in the High Court centred round tho only question whether the suit la.nd:i . were pre-settlement inams excluded from the assets of the zamindari or whether they were included in those assets.

The High Court pointed out that this waq reall.v a question of fact a.nd in second appeal the High Coun could not intcrfe.re with a finding of fact un-less there were permissible grounds for such interference. The High

Court held that there were no such permissible grounds. However, the High Court refernd again to the documentary evidence given in the casP, namely, Ex. A-1, extract from the register of village service inams in the unonfranchisct.l :11okhasa village of Gotern, Ex. A-2, the till" deed granted t.o the predecessors-in-interest of the inamt.lars wherein it was specifically recitet.l that the inams were held for service, Ex. A-5, a settlement datet.l December 13, 1942, Ex. A-7, a rel-(ister of service inanrn of Goteru dated Dc()embnr i":l, 194!1, Ex. A-f), public copy of the village account of Goteru, Ex. B-1, register of ina.rns of village Goteru preparet.l in 1859, Ex.

A-2i, Rhubond accounts reln, ting to Goteru, Komarnvarnm and

Summpudi Mokhasas, and Ex. A-28 Zam•1bandi Pys- . ala Chitta, etc., and came to the conclusion that the inarns in question, both Karw1m service inams and the Sarvadumbala inam~. were p<lr-scttlcmcnt. inams and the documents show et.I that t.hey were not. taken into consideration in determining the assets of the

zminda.ri. Un the second quc'stion of not.ice, thA

High Court came to the conclusion that the appellants herein were not tenants. holding over but. were

perso1rn who continued. to be in possession without

qe coqsent of tlie inaQlt.lars u.ftcr tbe tcnµiqu.t\on

3 S.C.R.

SUPREME COURT REPORTS 329

of the tenancy; that being the position, no notice was necessary and the suits for eviction were maintainable.

In the appeals before us learned Advocate for the appellants bas not canvassed the question of notice. He has canvassed two points only: firstly. he hao argued somewhat faintly that the finding of the courts below that the service inams were presettlement inams and were excluded from the assets of the zamindari was riot a correct finding secondly, he has argued that by reason of the amendments made ins. 3 (2) (d) of the Madras Estates Land Act in 1936 and 1945, these minor inams constituted an estate within the meaning of the aforesaid provisions and under s. 6 uf the said Act, the appellants had acquired a permanent right of occupancy in their holdings; therefore, they were not liable to be ejected and the Civil Court had no jurisdiction to deal with the suits.

As to the first point urged before us, it is sufficient to state that it relates to a question of fact on which there is a concurrent finding by the conrts below and the appellants have not been able to satisfy us that there are any special reasons, such as, a manifest error of law in arriving at the finding, or a disregard of the judicial process or of principles of fair heal'ing etc., which would justify us in going behind such a concurrent finding. We must, there- • fore, proceed on the footing that the inams in question were presettlement inams, eight of them .K arnam service inams and seven others Sarvadumbal, a inams.

This brings us to the second point urged before us. T1iat point does not appear to have been agitated in the High Court. But as it relates to tho interpretation of s. 3(2)(d), and Explanation(!) appended thereto, of the Madras Estates Land Act, we have allowed .learned Advocate for the apellants

~'? ar9ue the oiut before us. Section 3(2)(d) aud

J962

Gondumogula

Taioyya

Penumatcha Ancvula

Vi; aja Venkota:..

rama Timma J agapalhira; u

DasJ.

Gondumogula

Ta1apa

v, P111W11atcha An.anda

Viia.10 V dalarama Timrnri

JOl}apalhiraju

J)aJ .1,

33() SGPREME COURT REPORTS (19G2J SUPP.

Explanation (I) appended thereto, is in these terms:

"il. In this Act, unless there is something repugnant in the 8ubject or contoxt- ............ " ......................................... .

12) "Estate" means- .. -···· .......................................... .

(d) any inam village of which the grant has been made, confirmed or recognized

h~· the Grwernment, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or tho

succcsors in title oft.he grantee or grantees.

Explanation (I )-Where a. grant as an inam is expreAiled to bo of a named villag", the area which forms tho subject-mattor of the grant shall ho <foemcd to ho an estate not l>ithstanding that it did not includo certain lands in the village of th11t nam<l which have already been granted on service or other teuure or been reserved for communal purposes.

" . . .............................................. .

It is worthy of note hero that \\'hen the ;\fadras

F>tatc~ Lam! Act was enacted for the first time iu

1 !JOS s. :!( 2)( cl) was as followH:

"Any village <if which the Janel revenue alone has been granted in inam to a person not owning the kurlivararn thereof, provided that the grnnt. has been made, confirmed or rccogniz<'d by the British Government or any

separt<"<l part of such village." .

Owing to a varidy of rl'aAons which it is not n"cessarv tn Htate her<' there was an armndmPnt . , uy which cl. (d) as it originally stood was rornoved

3 S.C.R.

SUPREME COURT REPORTS 331

and a fresh clause substituted by s. 2 (I) of the Madras Estates Land (Third Amendment) Act, 1936 (Madras Act XVIII of 1936). The old Explanations

(1) and (2) were renumbered as Explanations (2) and (3) respectively iind a new Explanation was inserted as Explanation (I) bys. 2(1) of the Madras Estates Land (Amendment) Act, 1945 (Madras Act II of 1945).

The reasons why the amendments became necessary have been explained in the Full Bench deci; iion of the Madras High Court in Mantravadi Bhav1inareyana v. Merugu Venkatadu(').

In Narayanaswami Nayudu v. Subramanyam(') it was observed by the Madras High Court that the existence of service inam was very common in villages itnd that where there was a subsequent grant of the village, to hold that such grant was not an estate as defined in s. 3(2)(d) by reason of the existence of minor inams would result in the exclusion of agraharams, shrotriyams and mokhasa villages from the operation of the Act and that could not have beep the intention of the Legislature. In that decision Srinivasa Ayyangar,

J., observed:

"The definition in sub-section 3, clause ( d) was obviously intended to exclude from the definition of 'Estate' what are known as minor inam '• namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries.

The latter a.re known as 'whole inam villages'.

The existence of 'minor inams' in whole inam villages is very common and if these inam villagc•il do not come within the definition of

'Estate' almost all the agrabaram, shrotriyam and mokhasa villages will be excluded. This certainly cannot have been the intention of the Legislature." (I) I. L. R. [1954] Madras 11~.

(2) (1915) I. L. R. 39 Madras 683,

Gondumogula

Tatayva

Ptnumatcha Anc.nda

Vijo,)'a Venkaa rama Timma Jagopothira.1u

DasJ.

196Z

0"""""°9ula

T•ta.va

P1numakha Jfno11d4

YijaJla V1niatYraao rirnm11 Jo1apa14iraju

Da1 J.

332 SUPRE3IE COURT REPORTS [1962] SUPP.

This interpretation of s. 3( 2)( d) was accepted without question until the decision in Ademma v.

Satyadhyana Thirtha Swamiraru (1) where for the first time a different note was struck. It was held therein that where portions of tho estate had previously been grantotJ as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not uf the whole village. Tho Legislature thereupon in torvened and enacted Ex:planation ( l) with the object of restoring the view of the law which hiul been held before tho decision in Ademma v.

Satyadhyana 'l'hirtlta Swmnfr<ll"ll( 1). The crucial test to find out whether the subject mattor of a grant falls within the definition of an estate under s. 3(2) (ti) of tho Aot is whether at the time of the grant the subjectmatter w:is a wholo village or only a part of a village. If !Lt the time of the grant it was only o. part of a villa"e, then the amending Act makes no differencn to this and sueh a part would not be an estate within the meaning of the term. But if tho grant was of the whole village n.ncl a named one. then it would he an estate.

Leo.med Advocate for the appellants has referred us to thn Jlokhasn sanad of December 8, 1802. That sand gives a. list ofvillagos which Goteru is one. The argument of learned Advocate for tho appellants is tho.t the inam lands

being within vi ll:L"e Goteru, thev n.lso a.re "c:itates" within the mcanlng of s. 3(2J{d) read with Explanation (I). It appears tu us that thi" argument is cleo.rly erroneous. Them is no doubt that tho

fokhasa grant is a.n estate within the rne:min)! of the s. 3 (2) of the :IIadra.s Estates Land Ad, and that is no:. disputed beforn us.

Th:Lt does not however, moan that the minor inams would :Ll,; u constitut.o an t•stale within the meaning of ~. :1 (~) (d). As was pointed out in 1'f antravadi !3lumMwmyrina v. 11! tr nyu. Venbil<1dn('),

(I) [1913," M. L.J. 239.

(l) I. L. R. _1951] M•dras 110.

:i s.c.R. sUPRErit:E cottR± REPoRfs 3:1:{

the crucial test is whether at the time of the grant the subject-matter was a whole village or only part of a village. In District Board, Tanjore v: M. J(. Noor Mohamed Rowther (1) this Court observed that "Any ioam village" in s. 3(2}(d) meant a whole village granted in inam and not anything less tan a village however big a part it might be of that village. In other words the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and the latter case, in order to come within the scope of the definiion it must fulfil the conditions; (a) the words of the grant should exprPssly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure; or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be cballenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of s. 3(2)(d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of s. 6 of the said Act •.

Learned Advocate for the appellants also addressed us at some length on the beneficent nature of the provisions of the Madras Estates Land Act an([ submitted that the appellants herein should not be deprived of the benefits of that Act.

But the appellants must satisfy us first that they. come within the protection or benefits of the Act.

If the lands which they held were not an "estate"

\!) A. I. R. [1953] S.C. 446.

l1ondum11gula

Tatq, Ja

•• Penumatcha Ananda V ijaya Vmkata~

rama Timma J agapathiraju

DasJ.

Gond1.mog11la

101a.J)'O

v. /'enumatcha A nondd

Vijaya Vtnkatc

roma Iimma Jagepat!.fraju

!~:!4 SUPREME COCR'f REPOitTS [l!lli2) SUPP.

within the meaningof the Act, then there can be no qncsti.or_i of giving them the benefit of the Act.

In.our op1mon, there is no substane in the second pomt urged on belrnlf of the 1tppcllants.

In the r"sult the appeals fail and are clismi, cd mth cost; one hearing foe.

DosJ.

• /!Jfi2

Appwl'J dismissal.

t)HA.l\IBHOO

STA 1l'J<; OF lJ'f'I'AR PRADl•~SH ( , J. L. K.Al'IJR, !(. C. DAS GUP'!'A and RAGIIUBAR

DAYAL, J, J.)

(}1i11iinal Trial--Jfurd.er-- F'istol and cartridges recovered frvni ucr-usr:d--·f'ailur"- to send' to balli.tic F.xperl-lf entails rPjr.ction of e.ye uJif-nes, w.~- -1lpprt; ciation of ei.:idencc.

'I'he appellant ~\'idt su1nc others robbed Duila and t\VO others and d11r1rig the robber)' the appellant !hot at and killed

Dull.a. \vi1h a pist , l, Afier a chase the appellant was appre hrnticd and the pistol a11d .some cartridges were recovered from bun. 1'he pistol and cartridges , .. ere not sent for examination to the ballistic. expert. :\ number of eye "it

nc.ses y.cre produced at the trial. 1"hc Sessions Judge ac quitted the appellant but 011 appeal the lligh Cou1 t convicted him un<lcr ss. 302 and 1Y4 Indian Penal Code and sentenced hin1 to death. The appellant contended that the circum stances of the case showed that the eye \Vitnesses could not be relied upon and that the failure to get the pistol and cartridges examined by a ballistic expert was a good ground for rejecting the e .. idenr.c of the eye \•; itnesses.

Jleld, that though the prosecution would have done well to send the pistol and cartridges to the ballistic expert for his opinion, the omission to do so clid not furnish any reason to doubt or reject the e\idence of the eye witnesses. '!"here .... ·:1.s no reason to think that the injuries of \Vhich Oulla died could not have been c:au;.ed by the pistol, on the cvntrarv the nature of the injuries \\'a5 \\holly consistent \vlth the prosecution story that a pistol \\'as used.