R KOTAYYA Vs. R SUBBARAYUDU

JUDGEMENT

(1.) THE Judgment of the Court was delivered by the Hon'ble Mr. Justice Viswanatha Sastry. This is an appeal by defendants 4 and 5 from the judgment of Subba Rao J. (as he then was) in A. S. No. 819 of 1948 affirming the decree of the Subordinate Judge of Bapatla in O. S. No. 57 of 1947 awarding the plaintiffs possession of their share in Acs. 9-88 cents of land situated in the village of Dhenuvakonda. Defendants 4 and 5 are purchasers of the lands under Ex. B-33 dated 26-10-1936 from the father of the 6th defendant and 7th defendant who in turn purchased them under Ex. B-5 dated 13-7-1936 from defendants 1 and 2. THE plaintiffs are the younger brother and the sons of the 1st defendant and they alleged that the sales Exs. B-33 and B-5 were invalid and not binding on their interest in the lands sold. THE plaintiffs' case, accepted by the trial court as well as by the learned Judge, is that the lands are Dasabhandam inam lands whose alienation by defendants 1 and 2, the descendants of the original grantee, is illegal and void. Before us Sri P.Somasundaram, the learned Counsel for the appellants urged the following points : 1. It has not been proved that the lands were granted as Dasabhandam inam ; 2. THE Inam was granted in lieu of past services and was not burdened with any obligation to continue the service in future; 3. THE inam was a grant only of the melwaram; 4. Even if the lands were Dasabhandam inam, their alienation is not illegal or void. On the first point, it is urged that the original grant has not been produced by the plaintiffs, the descendants of the original grantee who should have custody of it and therefore a presumption adverse to their claim should be drawn. THE grant was made nearly 200 years ago by the then Zamindar of Venkatagiri to an ancestor of the plaintiffs several degrees remote and it is quite possible that the original grant, though it appears to have been filed in some earlier proceedings, has now been lost. Ex. A-2, a communication from the Zamindar of Venkatagiri to his Officer gives the Telugu year of the document as Vilambi and also the month and date. THE year Vilambi should correspond to 1778 in view of the reference to Ex. A-2 in Ex. A-1 dated 19-8-1929. Ex. A-2 refers to the lands enjoyed by Ramasami Ramalingam as Dasabhandam manyam in respect of the cheruvu (tank) constructed in Dhenuvakonda and direct the officer to see that the inam lands are allow to be enjoyed by Ramasami Ramalingam according to usage. Ex. A-l dated 19-8-1929, another communication by the succeeding Zamindar to his officer, refers to Ex. A-2 as a sanad granted to Ramasami Ramalingam by the Zamindar's father for the Dhenuvakonda manyam. When Ex. A-1 was issued, Ramasami Ramalingam referred to in Ex. A-2 had died and his son Sethupathi who is referred to by name in Ex. A-l was in possession of the Magili (wet) Dasabhandam lands. Ex. A-l refers to the fact of Sethupathi's grand-father Ayyanna having constructed the Cheruvu in Dhenuvakonda. Ex. A-13 of the 1807 is an order issued to the village officers of Dhenuvakonda that 'the produce of the Dasabhandam manyam enjoyed by Ramasami Ramalingam's son Sethupathi towards the cheruvu of your village as per the Sanad of Sri Rajah varu" should be allowed to be taken by him. Ex. A-2 is a similar document for an earlier year. Exs. A-12 and A-13 refer to dumbalas of earlier years presumably to the same effect. In Exs. A-7 and A-9 series, the Dittam Registers of Dhenuvakonda village for 1908, 1916 and 1917, the lands in the suit are described as Cheruvu Dasabhandam. In Exs. B-5 and B-33, the sale deeds under which the appellants claim title, the lands are described as relating to Dasabhandam inam lands pertaining to the panta cheruvu in Dhenuvakonda village. On these documents, the only conclusion possible is that the lands in suit are Dasabhandam inam lands. On the second point, the learned Advocate for the appellants contended that the Dasabhandam grant was in lieu of past services in constructing a tank at Dhenuvakonda and there was no obligation on the part of the grantee to render service in future by keeping the tank in good repair. Dasabhandam, inam, generally, though net invariably, carries, with it the condition of keeping the tank or channel or other sources of irrigation in repair. Board's Standing Order 56 gives the power to the Government in ryotwari villages and the Zamindars in permanently settled Estates to resume Dasabhandam inams in case of default of service. See also Sec. 140 (2) of the Madras Estates Land Act and Sec. 17 (2) of the Madras Estates Abolition Act 1948. In the present case there is conclusive evidence that the inam was a grant burdened with service by way of keeping the tank in repair. Ex. A-4, an extract from the suit register shows that the .Zamindar of Venkatagiri filed O. S. No. 568 of 1867 against Ramasami Ramalingam, the ancestor of the plaintiffs and got a decree against him for the amounts spent by the Zamindar for effecting repairs to Dhenuvakonda Cheruvu. This judgment indicates that the inamdar was bound to keep the tank in repair and as he defaulted to do so, the Zamindar effected the repairs and recovered the cost from him. Ex. A-5, the judgment in O. S. No. 521 of 1914 shows that a person who was employed by Ramasami Sethuramayya, the then holder of the Dasabhandam inam, to repair the tank obtained a decree against his employer for the amount payable to him for the work done. Exs. A-10 dated 25-11-1933 and A-11 dated 1-6-1946 are notices given on behalf of the Venkatagiri Zamindar, to Subbarayudu and Ramalingayya, the then inamdars, to repair the tank or on default of their doing so, to deliver possession of the inam lands. Lastly, Ex. B-4 dated 22-1-1936 the contract of sale, Ex. B-5 the sale deed dated 13-7-1936and Ex. B-33 the subsequent sale deed dated 26-10-1936 in favour of the appellants, alt provide that the vendees of the inam lands should themselves do the cheruvu repairs pertaining to the Dasabhandam inam from the date of the sale. We, therefore, find the second point against the appellant. THE third point argued is whether the grant of the inam comprised both the warams or the melwaram alone. THE evidence on this point is some what meagre, but the dumbalas to which we have referred, Exs. A-1 and A-2, the recitals in Ex, B-37, a bill maktha cowle dated 8-9-1873 granted by the inamdar to a lessee and in Ex. B-39, a mortgage deed dated 11-9-1879 executed by the then inamdar, indicate that it was the land and not the melwaram alone that had been granted as inam. THEre is also Ex. B-35, a deposition given by the grand-father of the plaintiffs in certain summary suits which points in the same direction. Having regard to the age of the grant, the circumstances under which the grant was made and the indications in the documents above referred to, we agree with the decision of the learned Judge on this point. THE last and fourth point raised by the learned Advocate raises the question whether Dasabhandam inam lands could be validly alienated by the holder of the inam. A forcible argument has been addressed to us to the effect that in the case of Dasabhandam inams the service was purely of a secular nature which could be performed by anybody, that no special or personal qualification on the part of the holder was necessary for rendering the service, that an alienee of the inam land; would take it subject to the burden of service and to resumption by., the grantor on default of service, that therefore there was no prejudice to the ryots depending on the irrigation source for the maintenance of which the Dasabhandam inam was granted and that no high principle of public policy was violated by recognising the inamdars' right of alienation. THE learned Advocate argued that the decisions of the Madras High Court on which reliance has been placed by the learned Judge should be re-considered in the light of the above considerations and recent legislation regarding Dasabhandam inams. It is necessary to consider the nature of the service rendered by the grantor of a Dasabhandham inam. As early as the Madras Railway Co. v. Zamindar of Carvetnagarum the Judicial Committee laid down that it was the duty of the Zamindar to maintain the tanks in his Zamindary which were part of a national system of irrigation, recognised by the laws of India as essential to the welfare of the inhabitants. In the course of their Judgment, the Judicial Committee observed :