SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF KISTNA Vs. CHINNAPRAGADA BHANAMURTHY; KALIPATNA SRIRAMULU

JUDGEMENT

(1.) This is a suit for a declaration that Government had no right to resume and assess certain lands which the Government treated as Karnam Service inam and enfranchised under the provisions of Section 17 of Act II of 1894. The plaintiff s case is that the lands were never Karnam service Inam and that they were jeroyati land held by his predecessors in title at a special rate of rent under an Agraharamdar. The District Munsif held that the lands were enjoyed as emoluments for service on favorable rents under the Agraharamdar and that they must be held to be Inam lands. On Appeal the Subordinate Judge reversed the Mun-sif s finding and held that it was not proved that the lands were service Inam landsExhibit B, an extract from the Inam Register shows that in 1787 the lands were in the possession of the Kar-nams on favorable rates of rent. The Agraharam was in the Zamin-dary of Mogalapore at that time. There is nothing to show, assuming that the lands were Karnam Service Inam that they were granted by Government. Government s right to enfranchise under Section 17 of Act II of 1894 exists only if the remuneration of a village office consists in the whole or any part of lands or assignment of revenue payable in respect of lands granted or continued in respect of or annexed to such office by the state. The argument of the learned Government Pleader is that though there may be nothing to show that the Government made the grant originally the land was continued by Government. What appears from the evidence putting it at the least in favor of Government, is that Government did not interfere with the enjoyment of the lands by the Karnams although they granted the Agraharam within which the lands are situated in 1813 to a certain person as a whole and that in I860 when the Inam inquiry was held, Government did not interfere with the rights of the ryots when they confirmed the Agraharam to the holder of it and gave him the Inam patta. The statement in the Inam Register Exhibit B has been the subject of much discussion at the Bar. It states as follows:--" The Karnams state that they enjoy Kattubadj Inams in the village. In the accounts of Fasli 1197, 83/4 puttis of land are stated to be held on a cist of 3 pagodas per putti whilst other lands pay 6 pagodas per putti. The former appears to be held by the family of the Karnams and that the cist in question is Nimabandi or half." Then follows a reference to a statement made by the Agraharamdar. Then the Register proceeds to say "these remarks are merely made for record." It is there stated that the Agraharamdar desired to have a t itle deed for the whole Agraharam in confirmation of the grant of 1813. The special assistant recom" mends the grant of it to the Agraharamdar and he states that the request might be acceded to " as we need not interfere with the subordinate tenures though the right of the holders to them is unquestionable and must be respected by the Agraharamdar." As we read the document, the Special Assistant was of opinion that the Karnams had a right to hold the lands they were in possession of; but he did not consider it necessary to decide that question. The observation " These remarks are merely made for record" makes this clear as we do not think it can be said that there was any confirmation or recognition by Government of the title of the Karnams. They did not consider it necessary to confirm or to recognise the right because it was considered unnecessary to arrive at a final decision about the rights of the Karnams to the land they claimed. The result is that in 1860 Government merely left the rights of the Karnams, if they had any, undisturbed. We cannot hold that there was any act done by Government which could be relied on by the Karnams as a recognition or confirmation of their rights. For the same reason we think there was nothing done by Government which it could rely on as an act of recognition or confirmation by it of the rights of the Karnams.

(2.) On these facts can it be held that the land was granted or continued by Government in respect of the office? Under the section Government has no right to resume land granted by the proprietor of the Estate. The principle adopted appears to me to be that in order that Government may have the right of resumption, the right to the land must either have in the first instance emanated from Government or the continuance of the right must have been due to an act of Government. At any rate there must have been recognition by Government of the right which " could be set up by the holder in support of his possession. Mere sufferance by Government or forbearance from taking steps which it might have been open to the Government to take, will not, we think amount to a continuance by the Government of the land in respect of the office. Mere collateral expressions of opinion which were not intended to be a recognition or confirmation of the right of the holder would equally be insufficient to amount to a continuance. Our attention has not been drawn to any decided case or authority in favour of the view that the continuance of the lands in the possession of the holder and the non-interference of Government with his possession would be sufficient under the section.

(3.) On this ground we agree in holding that this second appeal must be dismissed with costs. In the opinion of one of us the finding of the Subordinate Judge is defective on the question whether the lands were really Karnam s service inam lands or not; it is unnecessary to make asy further observation in the matter in view of the conclusion we have arrived at. Sadasiva Aiyar, J.