OBALAPURAM SEETHAMMA Vs. DESAYI CHALAPATHIRCDDI DIED

JUDGEMENT

(1.) These two appeals were preferred by the 1st defendant, Obulapuram Seethamma. The 17th defendant had been brought on record as the 2nd defendant as her legal representative. Both the appeals arise out of a common Judgment in O.S. No. 6 of 1959 and O.S. No. 9 of 1959, respectively, on the file of the Subordinate Judge, Cuddapah. The appeal against O.S. No. 9 of 1959 was originally filed as A.S. No. 5 of 1960 on the file of the District Court, Cuddapah, and subsequently transferred to this Court.

(2.) The facts for determination of the questions in controversy may be stated as follows :-The plaintiff, T. Chalapathi Reddy, is the successor in title of Musali reddipalli Shrotriem in Cuddapah district. In the Shrotriem village, there were two tanks called Musalireddipalli Kunta and Basamapalli Kunta, which served the village and also a portion of Government land in the neighbouring village of Kavala Kuntla. For their construction and maintenance en extent of Ac. 14-68, comprising of Ac. 8-00 rnd odd dry and Ac. 5-68 wet, was granted to Kantapalli Reddy rnd Sesha Reddy as Dasabandham inam. The said Dasabandam grant was confirmed by the Inam Commissioner on 23rd November, 1861, under title deed No. 2822 under rule 3, clause (2) of the Inams Rules in the names of their descendants, Narasimha Reddy 2nd Pitchi Reddy. Since the Dasabandham Inamdars, in spite of repeated demands, failed to keep the tanks in repairs for about 20 years from about 1935, the Government executed the repairs under section 140 (2) of the Madras Estates Land Act (hereinafter called "the Act"), and called upon the plaintiff, the Shrotriemdar, within whose shrotriem the Dasaba ndham Inam is situate, to pay the sum of Rs. 2,083-3-0 to wards his share of the cost of the repairs. The plaintiff protested and filed O.S. No. 23 of 1942 on the file of the Subordinate Judge's Court, Cuddapah, contending that the Dasabrndham Inamdars alone Were liable to effect the repairs to the tanks, and that he was not liable to pay the said amount. The learned Subordinate Judge dismissed the suit, and his decision was upheld, on appeal, by the District Court, Cuddapah. A.gainst that judgment the matter was carried in appeal to the High Court of Judicature at Madras as S. A. No. 621 of 1946. In that appeal, for the first time, a contention was raised on behalf of the plaintiff, that the Act did not apply to the shrotriem village, as it is Hissa Shrotriem, i.e., a grant of a portion of a village, and as such not an inam estate within the meaning of section 3 (2) (d) of the Act but he was not allowed to raise that contention. The learned Judge (Raghava Rao, J.) upheld the finding of the Courts below that Musalireddipalli was a whole inam village, and that even granting that the Board's Standing Order No. 56 did not necessarily clothe the Shrotriemdar (plaintiff) with the right of resumption, still section 140 (2) of the Act was wide enough to make the principle therein applicable to all tanks serving lands partly in an estate and partly in Government village, whether or not the tanks were endowed with the Desabandam Inams. In other words, the learned Judge held that section 140 (2) could not be restricted only to cases of tanks not endowed with Desabandham Inams. It was further held that the right of the Government for reimbursement, like the right of the resumption, which was incidental to the right of reversionery right of the Shrotriemdar originated in the failure of the Dasabandham Inamdar to fulfil his obligation to maintain the tank in good repair.

(3.) That obligation, the learned Judge held, was between the Desaba ndham Inamdar and the Shrotriemdar, though as between the Shrotriemdar and his tenants, the obligation is of the Shrotriemdar. According to the Law laid down in Madras Railway Co. v. Zamindar of Carventinagaram, it was held that the Government could recover the proportionate share of the cost of repairs under section 140 (2) of the Act, read with sections 69 and 70 of the Contract Act. Raghava Rao, J., further held that the right of the reimbursement on the part of the Shrotriemdar against Dasabandham Inamdar in the cases dealt with under section 140 (2) was a casus omissus, and that there was no hardship to the Shrotriemdar resulting from that lacune, as his right of reimbursement was embodied in sections 69 and 70 of the Contract Act. In the result, the learned Judge dismissed the second appeal by his judgment dated 4th February, 1949. Pursuant to the said decree of the High Court, the plaintiff paid a sum of Rs. 2,083-3-0 to the Government.