Decided on November 04,1953

Sri Sri Chandrasekhar Swamy Thakur Appellant
Baidhar Panda Respondents


Narasimham, J. - (1.) THIS is a Plaintiff's appeal against the reversing judgment of the Agency Subordinate Judge, Jeypore, dismissing his suit on the ground that it was no cognizable by the Civil Court. The material facts are as follows: The Plaintiff is a deity situated in village Karini within Gunupur taluk of Koraput district and was represented by its trustee Simhadri Sahu. The deity owns some lands in the village which were let out to the Defendant on condition that the paid an annual rent of Rs. 100/ -. As the rent was not paid the suit was brought for the years 1943 and 1944 and the total claim including interest etc. was laid at Rs. 215/8/ -. The suit was decreed, in the first instance, by the Principal Agency Munsif of Gunupur and was taken up on appeal before the Agency Subordinate Judge who on 2 -9 -48 remanded it for rehearing after framing the following two important issues: 1. Is Karini a whole inam village?
(2.) IF so, has the Civil Court jurisdiction to try the suit? 2. After remand, both parties led evidence to prove the origin of the inam grant in respect of the village. Then the Principal Agency Munsif of Gunupur he living the evidence of the Plaintiff held that the village was not a whole inam village recognised by the British Government and that consequently the disputed lands were not included within the definition of 'estate' as given in Section 3(2)(d) of the Madras Estates Land Act, 1908 as amended by Orissa Act XVII of 1947. On appeal, however, the learned Subordinate Judge held that the Plaintiff had totally failed to discharge his burden of proving that the disputed property was not an 'estate'. He, therefore, held in favour of the Defendant on this question and as a consequence of this finding be held that the suit was cognizable only in the Revenue Court and not in the Civil Court. But as regards the Plaintiff's claim, however, be gave a finding to the effect that the claim was valid and fully established. The original definition of the expression 'estate' as given in Section 3(2)(d) of the Madras Estates Land Act, 1908 was amended by Orissa Act XVII of 1947 and the new definition is as follows: (d) any inam village of which the grant has been made, confirmed or recognised by the British Government notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee of grantees. Explanation (1). -Where a grant as an inam is, expressed, to be of a named village, the area which forms the subject -matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of the name which have already been granted on service or other tenure or been, reserved for communal purposes. Explanation (2). -Where an inam village is, resumed by the Government, it shall cease to be an estate but, if any village a resumed is subsequently regranted by the Government as an inam, it shall, from the date of such regrant, be regarded as an estate. Explanation (3). -Where a portion of an inam village is resumed by the Government, such portion shall cease to be part of the estate, but the rest of the village shall be deemed to be an inam village for the purposes of this sub -clause. If the portion a resumed or any part thereof is subsequently re -granted by the Government as an inam, such portion or part shall, from the date of such re -grant, be regarded as forming part of the inam village for the purposes of this sub -clause; By Section 5 of the Madras Estates Land (Orissa Second Amendment) Act, 1946 a new section (Section 23) was inserted in the Madras Estates Land Act to the following effect: 23. Where in any suit or proceeding it becomes necessary to determine whether an inam village or a separated part of an inam village was or was not an estate within: the meaning of this Act as it stood before the commencement of the Madras Estates Land (Orissa Second Amendment) Act, 1946 it shall be presumed, until the contrary is shown that such village or part was an estate. The effect of this new Section 23 was to shift the burden on the person who alleged that a portion of the inam village was not an estate, to establish this fact thereby rendering the law as laid down by the Privy Council in, 148 I.C. p. 827 inapplicable. His thus clear that it is the Plaintiff's primary duty to establish by evidence that the disputed property is not an 'estate' as defined in Section 3(2)(d) of the Madras Estates Land Act as amended by Orissa Act XVII of 1947.
(3.) THE Inam Commission did not make any investigation about the inam tenures in Koraput district and consequently there are no title deeds to prove the terms of the pre -settlement inams in Jeypore estate. The following extract from the Gazetteer of Koraput district (1945 edition) p. 140 may be read in this connection. By the terms of the permanent settlement the reversionary right in inam tenures then in existence was reserved to the Government, though the kattubadi on them was included in the assets of the estates and is payable to the zamindars and proprietors. In 1862 the inam Commission appointed by the Madras Government visited the Vizagapatam district and permitted holders of pre -settlement inams to enfranchise their grants from the risk of reversion to Government by the payment of an annual quit -rent which was fixed according to circumstances and did not vary thereafter. But no investigation was made into the status of the various inamdars in Jeypore and the hill tracts of Pachipenta, with the result that there is at present no practical distinction between pre -settlement and post -settlement grants in the district, the Government never having exercised their right to the reversion of the former either by resuming them or enfranchising them. Owing to the absence of reliable. Records until comparatively recent years it is now often impossible to ascertain the date of an original grant.;

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