MAHABOOB SARAFARAJAWANT SRI RAJA PARTHASARATHY APPA RAO BAHADUR ZAMINDAR GARU Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF KISTNA

JUDGEMENT

(1.) The question for decision is whether the reversionary right in inams granted prior to the permanent settlement for services to be rendered by the inamdars to the Zamindar, in addition to the payment of quit-rent is vested in the Government or in the Zamindar. The suit is brought by the plaintiff, a Zamindar holding a permanent sanad. His case is that the lands in suit were granted in inam to the ancestors of the present holders on condition of rendering personal service to the Zamindar, such as following him with arms in the journeys, watching his treasury etc. He alleges the inam forms part of the Zamindari estate and the Government has no right to the same. According to him, the full rental value of the inams and not merely the rent which was paid thereon was included in the Zamindari at the time of the permanent settlement and his contention is that no additional assessment can be imposed by the Government. The Government have resumed these inams in 1907 and granted pattas to the persons in possession of the lands. He contends that such resumption is illegal. The contention of the Secretary of State for India is that the inams were pre-settlement inams and that the reversionary right in them therefore vests in the Government and, as the inamdar has ceased to render any services to the Zamindar, they were rightly resumed by the Government who assessed them and assigned them to the present holders there of on ryotwari patta. There is no denial in the written statement that the lands were granted on inam for rendering services to the Zamindar as alleged by the plaintiff. The Munsif passed a decree in favour of the plaintiff. That decree has been reversed by the District Judge, and this is an appeal from his decision.

(2.) It appears from the inam record Exhibit III that the services rendered by the inamdars consisted of guarding the revenue collected in the village by the Zamindar, accompanying the remittances to the Zamindar s residence and attending on him at his residence; and, it appears that for these two latter they also received some batta. It is said in the written statement filed by Government that "as the inamdars ceased to render any service, they (the inams) were rightly resumed by Government " Now it is not explained how the failure to render the services above enumerated, and it is not alleged that there were other services to be rendered, gave the Government a right to resume the inams. Neither the Government nor any portion of the community were interested in those services. They do not suffer in any way by their non-performance. The person injured is the plaintiff, and he is entitled to take steps to have the services performed by the inamdars or to get them performed by others and get damages from them. If the inams are resumable, prima facie therefore he is the person entitled to resume them; the written statement discloses no valid answer to this objection. However the lower Appellate Court has not considered this question. What was argued before the District Judge apparently was whether these were lands excluded from the permanent settlement under Section 4 of Regulation XXV of 1802. In second appeal it is contended on behalf of the appellant that the question is concluded by authority. In Second appeal No. 73 of 1908, (Rajah Venkatarangayya v. Appalarazu the case relied on, the facts were these; the lands in question were given by the Zamindar for minstrel service in 1718. On the death of one of the service holders the Zamindar resumed these lands. In 1900 the Government imposed an assessment alleging that they were lakhiraj lands in 1802 at the time of the permanent settlement and therefore that he had no title thereto. The learned Judges, Miller and Munro JJ., held that on the evidence the inam was granted by the Zamindar before the permanent settlement for private services rendered to him and on condition that they should be held so long as the services were continued to be rendered. They were of opinion that no presumption arose under these circumstances that the land was lakhiraj or exempt from payment of public revenue and therefore excluded from the permanent settlemeat with the Zamindar. They referred to the observations of the Chief Justice in Rajah Nilmonye Singh v. The Government (1866) 6 W.R. 12 that, "the Goverment would not have allowed any portion of their revenue in consideration of private services to be rendered to the Zamindar." This observation was quoted without disapproval by the Privy Council in Rajah Nilmonye Singh v. Bakranath Singh (1882) 9 I.A. 104 at p. 121, and they pointed out that holding lands free of money rent to the Zamindar did not make them exempt from the payment of public revenue as used in Section 4 of Regulation XXV of 1802. According to these cases, therefore, when lands were held on condition that the holders were to render certain services which were purely personal to the Zamindar and in which the Government were not interested, i.e., when such services had nothing to do with police or magisterial duties, or did not concern the community or the villagers, then the Government were entitled to include in the Zamindary assets for settling the peishkush the income from the lauds allowed in lieu of such services which were not allowed for in the settlement ; there is therefore no presumption they did not do so or treated the land as free from payment. In the case before us the judge states that this cannot be regarded as personal service to the Zamindar in consideration of which the Government would not allow any portion of their revenue-It may be that prior to the permanent settlement these were quasi public duties, as it was the Zamindars who collected the revenue for the Government but from the time of the settlement they ceased to be such and it was not necessary for the Government that those services should any longer continue to be done by the Zamindars, because in the performance of those services the Government or any section of the community were not interested and there is no reason for the Government continuing any allowances for these duties.

(3.) The District Judge also holds that the decision in Rajah Venkatarangayya v. Appalarazu does not apply to the case, presumably for the reason that in addition to rendering the services the holders of land had also to pay a rent of Rs. 6 per putti. The point for consideration in such cases is whether the Government only included the income actually received by the Zamindar from these lands in the estate of the Zamindar when they fixed the peishkush. If they included the whole income, then the Government are admittedly not entitled to enfranchise the land. If they included only Rs. 6 which was the rent then actually paid by the inamdar, then the Government would be entitled to do so. The question is purely one of fact. As-pointed out by the Chief Justice in the passage above extracted, the Government would not have allowed any portion of their revenue for services to be rendered to the Zamindar, and, as a rule, the reports of the various officers when the permanent sanads were granted show that this rule was followed, and, whenever any reductions were made by the Zamindar from the total income derivable from the Zamindari for payment to peons and other persons who were rendering services to the Zamindar, in the continuance of which the public were not interested, they were disallowed. The reports on which the peishkush in question was fixed are with the Government and they do hot produce them. About 1860 an Inam Commissioner was appointed to enfranchise the inams in which the Government have a reversionary right, and the fact that in the course of that enquiry the Government decided not to enfranchise these inams in question on the ground that they were not entitled to a reversion is strong evidence against them. The Judge states: "It seems to me evident that at the time of settlement, Government would have exempted all lands that were paying only a favourable rent when arriving at total income of the Zamindari; for, if they did not, it would amount to this, that if they were taking a two-thirds share in the income, of the Zamindari on all such lands, if they included them in the income, they would only get 1/4 of the nominal rent, whereas the Zamindar would get his one-third of the nominal rent and all of the service to pay for which the rent had been reduced.