POTHUKUTCHI APPA RAO Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF GUNTUR

JUDGEMENT

(1.) The question raised in this appeal is whether the tank-bed lands in question are the property of the Agraharamdars (the plaintiffs) or the Government (the defendant). The suit has been filed with a view to get a declaration that the lands belong to the Agraharamdars, and to get a refund of the penal assessment, alleged to have been wrongly levied from them. The plaintiffs trace their title to a confirmatory grant in their favour of 1797, made by the then Zemindar of Narasaraopet (Ex. A). This refers to a yet earlier grant of an unknown date (not forthcoming) and the plaintiffs rely upon the recital in Ex. A, wide and unqualified, to the effect that the whole village is granted "inclusive of the hills, channels, saline lands, donkas, tank-bed lands" within the boundaries specified. It will be seen that there is in this grant a specific mention of the tank-bed lands, which are expressly conveyed. The Agraharamdars next rely upon a conveyance of 1844, under which they acquired a portion of this agraharam from certain third parties. There again, the tanks are in terms mentioned among the rights appertaining to the property conveyed. This agraharam came within the purview of the inam enquiry instituted by the Government and in 1860 it was both confirmed and enfranchised and an inam title deed was issued to the agraharamdars (Ex. G). What was granted and confirmed "as freehold in perpetuity" was the entire village, nothing having been excluded. In the title deed issued by the Government, it was the title of the plaintiffs ancestors "the agraharam village" that was acknowledged on behalf of the Governor in Council. In the Inam Fair Register (Ex. F) there is a recital on which the plaintiffs strongly rely. It refers to the sanad of 1797, and goes on to say, that it appears therefrom, that the original grant comprised the entire village, excluding only the common village site, and certain minor inams, which had already been carved out. The plaintiffs take their stand upon these documents and ask: If the pre- British grant was unqualified and was of the entire village, inclusive of the tank-beds, and that grant was duly confirmed by the Governor in Council, how can the Government sustain their present claim? The plaintiffs complain that the Judge in the ourt below, who has negatived their claim, has misunderstood the issue to be tried and has misconceived the law to be applied.

(2.) In our opinion, the learned Judge has not given due effect to the completeness of the grant evidenced by the original sanad and the inam title deed. At the inam enquiry there was an express reference, as already observed, to the comprehensiveness of the original grant and when the proceedings culminated in the issue of the title deed, the tank-beds, which had been specifically conveyed by the sanad, were not excluded. What is even more significant is, that certain items were particularised as having been excepted, and neither the tanks nor the tank- bed lands were among those so excluded. The law undoubtedly is, that after a cession of territory, the only enforcible rights in respect of lands ceded, are those subsequently conferred by the Crown by express or implied agreement, or by legislation {Secretary of State for India in Council V/s. Bat Rajbai (1915) 29 M.L.J. 242 : L.R. 42 I.A. 229 : I.L.R. 39 Bom. 625 (P.C.)). The British Government, as observed in Sam V/s. Ramalinga Mudaliar were not bound to recognise the revenue-free grants of the previous Governments, though in practice they did recognise them. But when the original sanad is produced and the inam title deed does not curtail or limit the right conferred by its terms, the original grant remains the best evidence of what has been granted by the Crown as the result of the inam enquiry. This is the effect of the pronouncement of the Judicial Committee in Secretary of State for India in Council v. Srinivasachariar (1920) 40 M.L.J. 262 : L.R. 48 I.A. 56 : I.L.R. 44 Mad. 421 (P.C.). That case is also valuable as showing, that their Lordships recognise the existence of Indian documents, where apt words occur intended to create a complete interest in land, including even the right to minerals (see page 65). "In the clearer light afforded " (to use the language of their Lordships--vide page 66) by the original grant produced here, which expressly conveys the tank-beds, no inference can be drawn against the agraharamdars, from the non-mention of those items in the inam title-deed more especially, in view of the exclusion of certain specified items other than the tank-beds, in the Inam Register. This being so, it remains to consider whether the Government have made out their claim, in the face of these documents, that they are the owners of the lands in question.

(3.) It is contended by the Government that there is a finding in a former suit, which constitutes the question res judicata. 4 How the lower Court was persuaded to accept this contention, is inconceivable. The Agraharamdars filed the previous suit O.S. No. 7 of 1905, for a declaration that the whole village was granted to them and not merely certain specified portions thereof, as then contended by the Government. A decree was made by Mr. Rice, the District Judge who heard the suit, upholding the Agraharamdars claim in its entirety. Though the plaint in the previous suit has not been filed, the schedule thereto containing the particulars of the property claimed, has been exhibited. From that schedule, it appears that the Agraharamdars claimed the entire village less certain minor inams with which we are not concerned, and communal porombokes. The decree that was passed, granted to the Agraharamdars all that they had asked for in the plaint. In the course of his judgment, Mr. Rice refers to the inam proceedings and says that the Inam Fair Register granted what was exactly claimed in the inam statement neither more nor less. The formal decree that was drawn up, follows the terms of this judgment and declares the right of the Agraharamdars to the entire village, "exclusive of the porombokes and the minor inams not claimed at the Inam settlement."