DESAYI CHELAPATHI REDDI Vs. PROVINCIAL GOVERNMENT OF MADRAS, REPRESENTED BY THE COLLECTOR OF CUDDAPPAH

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiff, the appellant here as well as in the lower appellate Court, for a declaration that the Provincial Government had no right to call upon him either to effect any repairs to two tanks called Mussalareddipalle Kunta and Bassampalle Kunta, situate in his shrotriem village of Mussalareddipalle or to pay the costs of the repairs incurred by the Government. The suit was the sequel to action taken by the District Collector of Guddappah under Sub-section (1) of Section 142 of the Madras Estates Land Act and was instituted under Sub-section (3) on both the grounds referred to therein, namely, that the plaintiff was under no obligation to repair the tanks, and that the proportion of the charge which he was liable to pay under Sub-section (1) had been wrongly calculated. In support of the first ground it was alleged in the plaint that there were desabandam inam grants for the repair and maintenance of the tanks confirmed by the Inam Commissioner, at the time of the inam settlement in 1861, that the holders of these inams--not the plaintiff-- were the persons liable to repair the tanks, and that the Government had all along been calling upon them only to repair the tanks till in 1938 for the first time it chose to initiate proceedings against the plaintiff under Section 142 (1) of the Act. In support of the second ground there were no definite averments in the plaint which contented itself with the rather negative statement that it was not clear how the Collector had arrived at the figure Rs. 2,083- 3-0 in respect of which a bill had been presented to the plaintiff by an order of the Collector dated 29 May, 1941. There were also three more points raised in the plaint all of which were directed to showing that the order of the Collector was altogether outside the scope of Section 142. The first was that the tanks in question did not serve any Government lands at all for Section 142 (1) to come into operation. The second was that there was no complaints from any ayacutdars of the tanks that they required any repairs. The third was that all the repairs contemplated by the estimates prepared by the Government and forwarded by the plaintiff had not been completed and that such completion was the sine qua non of any order of the Collector under Section 142 dividing the charges incurred by the Government for the repairs between themselves and the plaintiff.

(2.) The plaint allegations were very closely traversed in the written statement. Issues were raised at the trial which are set forth in paragraph 4 of his judgment by the learned Subordinate Judge of Guddappah who tried the cause. It is unnecessary to refer in specific terms or in close detail to the findings recorded by the trial court on all the issues. It is sufficient to state that the learned Subordinate Judge held that the Government had some lands, though very small in extent under the ayacut of the tanks, although not under Section 142 of the Madras Estates Land Act, which, in his opinion, did not apply to a situation like the one in the present case where there was a desabandam inamdar bound to maintain the tanks in good repair, the whole village inamdar, under Board's standing order No. 56(2), Clause 2, like the zamindar under Clause 1, could resume a desabandam inam in the event of default by the inamdar to keep the tank in good repair, and reimburse himself in the amount that he might be called upon to pay the Government under Section 142, and that therefore there was no hardship to the inamdar involved in his being held liable to bear the Collector's apportionment of charges under Section 142(1). In this view of the matter the learned Subordinate Judge dismissed the. suit. He also held that all the repairs originally contemplated were not effected, but that there was however, no evidence adduced by the plaintiff to show that the amount claimed by the Government for his share so far as the work actually done was concerned was incorrect. There was just one more finding which the learned Subordinate Judge recorded, namely, that the procedure laid down by Section 136(0) and 139(1) was not followed in the present case. An appeal was preferred by the plaintiff against the judgment and decree of the learned Subordinate Judge to the District Court of Cuddappah which confirmed that decree on its acceptance of the findings of fact of the learned Subordinate Judge on the basis of which he had dismissed the suit. The learned District Judge however differed from that judgment as to the inapplicability of Section 142 of the Madras Estates Land Act to at case where there was an inamdar bound to maintain the tank in good repair under a desabandam inam grant and also as to the applicability of the procedure prescribed by S. 136 (D) and 139 (1) to the case on hand. Against the judgment and decree of the learned District Judge the plaintiff has preferred this second appeal in which his learned advocate has raised three points only at the hearing, one not raised in the courts below or even in the memorandum of second appeal, and two others which were accepted by the trial court but rejected by the learned District Judge on appeal. I have after a very careful consideration of every one of these points come to the conclusion that the appeal must fail.

(3.) The new point which I shall deal with first is that the Madras Estates Land Act does not at all apply to the suit shrotriem village which is a Hissa shrotriem as described in the Inam Fair Register Ex. P-1. Hissa shrotriem is defined in Mclean's Mannal of Administration, Volume 3, page 354, column 2, lines 17 to 20,. as an inam village the revenue of which is shared between the inamdar and the Government or between the inamdar and the zamindar as the case may be, and it is said in column 21 of Ex. P-1 that the share of the Government in the Hissa shrotriem of Mussalareddipalle is 12 annas in the rupee and that of the shrotriemdar 4 annas in the rupee on the annual beriz of the village. It is therefore argued by Mr. Venkatadri that the shrotriem is not a whole village Inam governed by the Act. The argument is, in my opinion nonsequitur. The Inam Register is not itself the original grant, though of course a very authentic piece of evidence of the terms of the original grant. The question whether a grant is a whole village inam or inam of a fraction of the village is a question of fact on which, however strong the prima facie evidence furnished by the recitals of Ex. P-1, it would have been open to the defendant to produce evidence by way of rebuttal, had the point been taken in the trial court. Moreover in paragraph 9 the judgment of the learned Subordinate Judge, there occurs the observations: For information sake I may state that, Mussalareddipalle is a whole mam village. That observation he makes in the course of his discussion of the applicability of Board's standing order No. 56(2), Clause 2, to the present case. There was no ground in the Memorandum of Appeal to the District Court objecting to the accuracy of the observations so made by the learned Subordinate Judge. I am not in the circumstances prepared to entertain this point in second appeal.