SREEVADHU YERRANNA Vs. DONKIRA KANNAMMA AND FIVE ORS, ADDOORU VIRANNA S WIFE YERRAMMA AND MELUSI SAMBAYYA AND FIVE ORS

JUDGEMENT

(1.) (Second Appeal No. 1569 of 1909.)--The plaintiff (appellant) is the vendee of fifth defendant and sixth defendant s deceased husband, who held the plaint lands as service inam. They mortgaged the lands to defendants Nos. 1 and 2 in 1892 and in 1898. Government resumed the inam and imposed full assessment. On the strength of his sale-deed patta was transferred in plaintiff s name,

(2.) Two main questions are raised in this appeal. It is first contended that the resumption by Government put an end to all prior encumbrances and that the issue of a ryotwati patta amounted to a re-grant. Admittedly Government had actually resumed possession of the land, which was in the possession of the mortgagees from the date of mortgage. We think therefore that the so called resumption did not operate to extinguish prior encumbrances. In a somewhat similar case of resumption by a zamindar the Privy Council remarked: "The resumption consists in putting an end to the grant, remitting the services and requiring them to pay the full assessment," It does not appear that an absolute dispossession was either attempted or intended in Unide Rajaka Raje Bommarause Bahadur v. Pemmasamy Venhatadry Naidoo (1858) 7 M.I.A. 128 at p. 142. A similar view was taken in Gunnaiyan v. Kamakohi Ayyar (1903) I.L.R. 26 Mad. 339 and by the Full Bench in Pingala Lahshmipathi v. Bommireddipalli Chalamayya (1907) I.L.R. 30 Mad. 434 in the case of enfranchised inam. The case reported in Ekambara Ayyar v. Meenatehi Ammal (1904) I.L.R. 27 Mad. 401 is only an authority in cases of forfeiture by a tenant and is inapplicable here. We must accordingly find this point against, appellant,

(3.) The second contention is that the mortgage to defendant Nos. 1 and 2 was invalid--the inam being inalienable under Section 2 of Regulation VI of 1831. This point was not taken in the first Court, but was raised in the lower Appellate Court, because first defendant had proved in the trial that the original grant had been made for gadaba (bearer) service and also for kafcta kalva (repairs of channels) I service. This plea had been pub forward as an argument against the validity of the resumption by Government, and the applicability of Regulation VI of 1831 does not appear to have been considered in that Court. It has been proved that the original grant of the plaint inam, which was before the Inam Settlement was for both services and no doubt katta kalva service partakes of the nature of a public service. In recent times, however, we find that the inam has been treated as one purely for gadaba service. It was so treated by Government on resumption and it was so treated by plaintiff in his plaint. Section 2 of Regulation VI of 1831 runs as follows: "All emoluments derived from lands which have been annexed by the state to hereditary village and other office in the revenue and police departments...are inalienable." Even if it, can be said that the katta kalva service is rendered by the holder of such an office,--which is very doubtful--the gadaba service is undoubtedly a personal service and outside the regulation and in this case the emoluments were originally granted for both services and have recently been treated as belonging to the gadaba service alone. In our opinion, therefore, plaintiff has failed to prove that the plaint laud cornea within the provisions of Regulation VI of 1831, We may remark that this is not surprising as no evidence was let in on the point, which did not form part of plaintiff s original case,