MAHABOOB SIR FRAJAVANTU SRI RAJAH PARTHASARATHY APPA RAO, SAVAYI ASVA RAO BAHADUR, ZAMINDAR GARU (DEAD) Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF KISTNA

JUDGEMENT

(1.) These appeals arise out of suits brought by Rajah Parthasarathi Appa Rao, Zamindar of one-third share of the Zamindari of Nidadavolu. All the suit villages are situate in the Amberipetta purgana of the Zamindari. The plaintiff files these suits for a declaration that the Government is not entitled to enfranchise certain service inams in these villages on the ground that they are included in the assets of the Zamindari and not excluded from them at the time of the Permanent Settlement and that the right of resumption is in the Zamindar and not in the Governmeut. So far as the inamdars are concerned, the plaintiff alleges that he is entitled to resume the lands whenever their services are not required and that he gave notice to them to quit the suit lands. Similar questions have arisen before us in connection with a number of Zamindaries in the Kistna District. Those cases are Section As. Nos. 648 to 832, 974 to 1058 of 1927, and other connected second appeals and the questions of law arising in those cases were elaborately discussed by us in our judgments in those second appeals and I will have to refer in the course of this judgment to our earlier judgment. The Subordinate Judge of Ellore who tried the suits dismissed them and the plaintiff appeals.

(2.) Two important questions arise in suits of this kind : (a) on whom does the burden of proof lie? Is it for the Zamindar to prove that the suit lands were included in the assets of the Zamindari at the time of the Permanent Settlement; or is there a prima facie presumption that the lands being within the ambit of the Zamindari are included in the assets of the Zamindari; or is it for the Government to prove that they were excluded from the assets of the Zamindari at the time of the settlement? On this question it is unnecessary forme to repeat what I have said in my former judgment, but, as that judgment has not been reported, it may be convenient to summarise what I have said therein. In the printed copy of that judgment I discussed this matter at pages 13 to 16. I there show that, though at first sight it looks as if the decision of the Judicial Committee in Secretary of State for India V/s. Raja Kirtibas Bhupathi (1914) L.R. 42 I.A. 30 : I.L.R. 42 Cal. 710 : 28 M.L.J. 457 (P.C.) is in favour of the Zamindar and to throw the ] burden of proof upon the Government, that case relates to Sukinda and Madhupur estates in Orissa and it somewhat resembles the decision in Secretary of State for India in Council V/s. Raja of Venkatagiri (1921) L.R. 48 I.A. 415 : I.L.R. 44 Mad. 864 : 41 M.L.J. 624 (P.C.), which relates to Venkatagiri and connected Zamindaries in this Presidency. These estates have a special history of their own, and the rule of presumption in respect of all Zamindaries cannot be inferred from these cases. The general rule is laid down in the decision in Secretary of State for India V/s. Raja Jyoti Prashad Singh (1926) L.R. 53 I.A. 100 : I.L.R. 53 Cal. 533 (P.C.). According to that decision it is for the Zamiudar to show that the suit lands were included within the Zamindari in spite of the fact that they are within the geographical limits of the Zamindari. Accordingly I held, that the burden of proof is in such cases always on the Zamindar.

(3.) (b) Question of limitation. This question was discussed by me at pages 21 to 27 of that judgment. There I held, (1) that in a suit by a Zamindar against Government for a declaration that an enfranchisement by the Government is not valid and binding on the Zamindar the period to be applied is not 12 years. In this matter I differed from an unreported judgment of Wallace and Thiruvenkatachariar, JJ., in Appeal No. 355 of 1922; (2) in general Art. 120 will apply to such suits; (3) where the Zamindar was a consenting party to the inam proceedings and raised no objection, Art. 14 may apply; but where the Zamindar had not appeared before the inam Commissioner and had taken no part in the proceedings and files a suit on the footing that the proceedings are ultra vires then the effect of the order of the Inam Commissioner is not such as to make it necessary for the Zamindar to set it aside and therefore Art. 14 does not apply to such cases. A further question was discussed as to when exactly the cause of action begins assuming that the period of limitation is six years under Art. 120. I held that where the Zamindar took no part in the proceedings and studiously kept himself aloof and afterwards files a suit for a declaration on the ground that the proceedings are ultra vires, the cause of action does not actually arise until he is injuriously affected by the enfranchisement, i.e., until there is a definite refusal by the inamdars to perform the services for which the inams were originally granted. This portion of my judgment is at pages 21 to 23. I made observations to the effect that, even if quit-rent is collected by the Government from the inamdars directly or indirectly through the Zamindar giving 10 per cent, to the Zamindar as commission and in the meanwhile the inamdars continued to render service to the Zamindar this does not necessarily compel the Zamindar to sue though if he likes he may sue, i.e., it does not give rise to a compulsory cause of action for a declaratory suit though it may afford an optional cause of action for a declaratory suit. A compulsory- cause of action arises when for the first time he is injuriously affected by the enfranchisement. Once such a compulsory cause of action arises, a suit brought more than six years from that date would be barred; Kodoth Ambu Nair V/s. Secretary of State for India (1924) L.R. 51 I.A. 257 : I.L.R. 47 Mad. 572 : 47 M.L.J. 35 (P.C.). In the last case, it was held that one cannot evade limitation by making a second application to the Government and bringing a suit within six years from the rejection of the second application. Here I may mention that in most of the cases with which we were concerned in those second appeals the Zamindar did not appear before the Inam Commissioner. The only exceptions to the statement were the Mokhasa of Kondaparva and the Gampalagudam estate. In the case of Kondaparva the Mokhasadar was present and agreed to the enfranchisement. I held that he was barred under Art. 14 (see page 27). As to Gampalagudam estate except as - to one village (Amumalalanka) the zamindar agreed to the lands being enfranchised (page 27 of the former judgment) and I held that the suits were barred under Art. 14 also. In all the other cases I held that Art. 14 did not apply and Art. 120 applied.