R KOTAYYA Vs. R SUBBARAYUDU
LAWS(APH)-1955-7-23
HIGH COURT OF ANDHRA PRADESH
Decided on July 15,1955

REVIPATI KOTAYYA Appellant
VERSUS
RAMASAMI SUBBARAYUDU Respondents


Cited Judgements :-

MEDAM SANKARANARAYAN VS. GADDALA TRIPATHI TAO [LAWS(APH)-1970-1-17] [REFERRED TO]


JUDGEMENT

- (1.)THE Judgment of the Court was delivered by the Hon'ble Mr. Justice Viswanatha Sastry. This is an appeal by defendants 4 and 5 from the judgment of Subba Rao J. (as he then was) in A. S. No. 819 of 1948 affirming the decree of the Subordinate Judge of Bapatla in O. S. No. 57 of 1947 awarding the plaintiffs possession of their share in Acs. 9-88 cents of land situated in the village of Dhenuvakonda. Defendants 4 and 5 are purchasers of the lands under Ex. B-33 dated 26-10-1936 from the father of the 6th defendant and 7th defendant who in turn purchased them under Ex. B-5 dated 13-7-1936 from defendants 1 and 2. THE plaintiffs are the younger brother and the sons of the 1st defendant and they alleged that the sales Exs. B-33 and B-5 were invalid and not binding on their interest in the lands sold. THE plaintiffs' case, accepted by the trial court as well as by the learned Judge, is that the lands are Dasabhandam inam lands whose alienation by defendants 1 and 2, the descendants of the original grantee, is illegal and void. Before us Sri P.Somasundaram, the learned Counsel for the appellants urged the following points : 1. It has not been proved that the lands were granted as Dasabhandam inam ; 2. THE Inam was granted in lieu of past services and was not burdened with any obligation to continue the service in future; 3. THE inam was a grant only of the melwaram; 4. Even if the lands were Dasabhandam inam, their alienation is not illegal or void. On the first point, it is urged that the original grant has not been produced by the plaintiffs, the descendants of the original grantee who should have custody of it and therefore a presumption adverse to their claim should be drawn. THE grant was made nearly 200 years ago by the then Zamindar of Venkatagiri to an ancestor of the plaintiffs several degrees remote and it is quite possible that the original grant, though it appears to have been filed in some earlier proceedings, has now been lost. Ex. A-2, a communication from the Zamindar of Venkatagiri to his Officer gives the Telugu year of the document as Vilambi and also the month and date. THE year Vilambi should correspond to 1778 in view of the reference to Ex. A-2 in Ex. A-1 dated 19-8-1929. Ex. A-2 refers to the lands enjoyed by Ramasami Ramalingam as Dasabhandam manyam in respect of the cheruvu (tank) constructed in Dhenuvakonda and direct the officer to see that the inam lands are allow to be enjoyed by Ramasami Ramalingam according to usage. Ex. A-l dated 19-8-1929, another communication by the succeeding Zamindar to his officer, refers to Ex. A-2 as a sanad granted to Ramasami Ramalingam by the Zamindar's father for the Dhenuvakonda manyam. When Ex. A-1 was issued, Ramasami Ramalingam referred to in Ex. A-2 had died and his son Sethupathi who is referred to by name in Ex. A-l was in possession of the Magili (wet) Dasabhandam lands. Ex. A-l refers to the fact of Sethupathi's grand-father Ayyanna having constructed the Cheruvu in Dhenuvakonda. Ex. A-13 of the 1807 is an order issued to the village officers of Dhenuvakonda that 'the produce of the Dasabhandam manyam enjoyed by Ramasami Ramalingam's son Sethupathi towards the cheruvu of your village as per the Sanad of Sri Rajah varu" should be allowed to be taken by him. Ex. A-2 is a similar document for an earlier year. Exs. A-12 and A-13 refer to dumbalas of earlier years presumably to the same effect. In Exs. A-7 and A-9 series, the Dittam Registers of Dhenuvakonda village for 1908, 1916 and 1917, the lands in the suit are described as Cheruvu Dasabhandam. In Exs. B-5 and B-33, the sale deeds under which the appellants claim title, the lands are described as relating to Dasabhandam inam lands pertaining to the panta cheruvu in Dhenuvakonda village. On these documents, the only conclusion possible is that the lands in suit are Dasabhandam inam lands. On the second point, the learned Advocate for the appellants contended that the Dasabhandam grant was in lieu of past services in constructing a tank at Dhenuvakonda and there was no obligation on the part of the grantee to render service in future by keeping the tank in good repair. Dasabhandam, inam, generally, though net invariably, carries, with it the condition of keeping the tank or channel or other sources of irrigation in repair. Board's Standing Order 56 gives the power to the Government in ryotwari villages and the Zamindars in permanently settled Estates to resume Dasabhandam inams in case of default of service. See also Sec. 140 (2) of the Madras Estates Land Act and Sec. 17 (2) of the Madras Estates Abolition Act 1948. In the present case there is conclusive evidence that the inam was a grant burdened with service by way of keeping the tank in repair. Ex. A-4, an extract from the suit register shows that the .Zamindar of Venkatagiri filed O. S. No. 568 of 1867 against Ramasami Ramalingam, the ancestor of the plaintiffs and got a decree against him for the amounts spent by the Zamindar for effecting repairs to Dhenuvakonda Cheruvu. This judgment indicates that the inamdar was bound to keep the tank in repair and as he defaulted to do so, the Zamindar effected the repairs and recovered the cost from him. Ex. A-5, the judgment in O. S. No. 521 of 1914 shows that a person who was employed by Ramasami Sethuramayya, the then holder of the Dasabhandam inam, to repair the tank obtained a decree against his employer for the amount payable to him for the work done. Exs. A-10 dated 25-11-1933 and A-11 dated 1-6-1946 are notices given on behalf of the Venkatagiri Zamindar, to Subbarayudu and Ramalingayya, the then inamdars, to repair the tank or on default of their doing so, to deliver possession of the inam lands. Lastly, Ex. B-4 dated 22-1-1936 the contract of sale, Ex. B-5 the sale deed dated 13-7-1936and Ex. B-33 the subsequent sale deed dated 26-10-1936 in favour of the appellants, alt provide that the vendees of the inam lands should themselves do the cheruvu repairs pertaining to the Dasabhandam inam from the date of the sale. We, therefore, find the second point against the appellant. THE third point argued is whether the grant of the inam comprised both the warams or the melwaram alone. THE evidence on this point is some what meagre, but the dumbalas to which we have referred, Exs. A-1 and A-2, the recitals in Ex, B-37, a bill maktha cowle dated 8-9-1873 granted by the inamdar to a lessee and in Ex. B-39, a mortgage deed dated 11-9-1879 executed by the then inamdar, indicate that it was the land and not the melwaram alone that had been granted as inam. THEre is also Ex. B-35, a deposition given by the grand-father of the plaintiffs in certain summary suits which points in the same direction. Having regard to the age of the grant, the circumstances under which the grant was made and the indications in the documents above referred to, we agree with the decision of the learned Judge on this point. THE last and fourth point raised by the learned Advocate raises the question whether Dasabhandam inam lands could be validly alienated by the holder of the inam. A forcible argument has been addressed to us to the effect that in the case of Dasabhandam inams the service was purely of a secular nature which could be performed by anybody, that no special or personal qualification on the part of the holder was necessary for rendering the service, that an alienee of the inam land; would take it subject to the burden of service and to resumption by., the grantor on default of service, that therefore there was no prejudice to the ryots depending on the irrigation source for the maintenance of which the Dasabhandam inam was granted and that no high principle of public policy was violated by recognising the inamdars' right of alienation. THE learned Advocate argued that the decisions of the Madras High Court on which reliance has been placed by the learned Judge should be re-considered in the light of the above considerations and recent legislation regarding Dasabhandam inams. It is necessary to consider the nature of the service rendered by the grantor of a Dasabhandham inam. As early as the Madras Railway Co. v. Zamindar of Carvetnagarum the Judicial Committee laid down that it was the duty of the Zamindar to maintain the tanks in his Zamindary which were part of a national system of irrigation, recognised by the laws of India as essential to the welfare of the inhabitants. In the course of their Judgment, the Judicial Committee observed :
" THE tanks are ancient, and formed part of what may be termed a national system of irrigation, recognised by Hindu and Mohomedan law, by regulations of the East India Company, and by experience older than history, as essential to the welfare, and, indeed, to the existence of a large portion of the population of India. THE public duty of maintaining existing tanks, and of constructing new ones in many places, was originally undertaken by the Government of India, and upon the settlement of the country, has, in many instances, devolved on Zamindars, of whom the defendant is one. THE zamindars have no power to do away with these tanks, in the maintenance of which large numbers of people are interested but are charged under Indian law, by reason of their tenure, with the duty, of preserving and repairing them."
(Italics ours.) THE responsibility of the Government for maintaining in order the tanks and irrigation channels in permanently settled estates was transferred to the Zamindars under the Permanent Settlement. In order to discharge this public duty cast upon them, the Zamindars granted lands in their estate by way of Dasabhandam inams, requiring the grantees to maintain the particular tanks and channels assigned to them in good repair. THE Dasabhandam inam was, therefore, a grant of land burdened with service of a public nature, the obligation of the Zamindar in this respect devolving on the grantee of the inam and if the inamdar defaulted to keep the tank or channel in good repair, the obligation to do so again devolved on the Zamindar. It was for this reason that the Zamindar was entitled to resume the Dasabhandam inam on default of service by the inamdar, the liability to resumption on default of service being a condition of the grant. In the case of Dasabhandam inams situated in ryotwari villages the Government has the right of resumption on default of service. (See Boards Standing Order 56 and Sec. 140 (2) of the Madras Estates Land Act.) Sec. 17 (2) of the Estates Abolition Act of 1948 also proceeds on the basis that Dasabhandam inams are grants burdened with service of a public nature. THE Dasabhandam service must therefore be held to be service of a public nature, namely, the keeping in repair of tanks and channels , from which water has to be drawn for the cultivation of their lands by the ryots of the village. In Anjaneyulu v. Sree Venugopala Rice Mill Ltd.,, a Full Bench of the Madras High Court decided that lands held on swastivachakam service tenure were not alienable and that the sale of such lands was opposed to public policy and the nature of the interest affected. Sri Somasundaram sought to distinguish this case on the ground that there the service was a Swastivachakam service which could be preformed only by Brahmins learned in the Vedas and which therefore depended entirely on the personal qualifications of the grantee, while here anybody could keep the tanks in repair if only he had the requisite funds for the purpose, THE ratio decedendi of the Full Bench Judgment is at page 623 of the report. Schwabe, C. J. observed :
" In my judgment the sale of such property is opposed to the nature of the interest effected and also is contrary to public policy. THE right to enjoy the property is as long as the inamdar renders services in the performance of which the public have an interest. If the inamdar sold the property it is obvious that he would in all probability no longer perform the services ; and further, it is quite opposed to the nature of his interest and duty (namely, that he should enjoy the produce of the land as salary for the public services he has to render) that he should sell it or alienate it, leaving himself without the means of subsistence and without further interest in the place or in the performance of the services. It is also to be observed that, if the property were sold, the purchaser would get no title of any value, for at any moment the property might revert to the zamindar or the Government, as the case may be, when the inamdar ceases to render such services. "
Goutts Trotter, J. who had taken a different view in an earlier judgment to which he was a party, agreed with Schwabe, G. J. that it would be contrary to public policy to recognise the validity of a sale in execution of Dasabhandam inam lands. Sri Somasundaram argued that " public policy " was a treacherous ground for judicial decision and that the sale of the inam lands was neither illegal, immoral or criminal nor per se injurious to public interest, especially when the service could be rendered by the alienee quite as efficiently as* by the inamdar himself. He also urged that public policy was a concept capable of expansion or modification from time to -time and that in the circumstances existing to-day, it is not right to fetter the holding and free disposal of property by citizens on grounds of public policy. Many of the incidents,.of service tenures are regulated by what may be called the common law which has grown up and has been formulated into fixed principles by judicial decisions. Our function is not so much to expound public policy according to the needs of the times as to apply principles recognised and established by prior decisions. It is not as if the decision in Anjaneyulu v. Sri Venugopala Rice Mill Ltd., started a new current of authority or laid down a new principle. It was an affirmation of the law laid down in prior decisions of the High Courts some of which are referred to in the judgment of Schwabe, G. J. THE observations of the learned Judges in the Full Bench Case are not confined to the case of a Swastivachakam service but are of general applicability and cover cases of all public service inams. In Ramakrishnamma v. Venkatasubbaiah and Lakshmadu v. Ramudu two Division Benches of the Madras High Court have held, following the Full Bench decision, that lands burdened with Dasabhandam service which is a service of a public nature, are inalienable as being against public policy. We need not refer to cases relating to other kinds of service tenures. To Sri Somasundaram's request to refer the question to a Full Bench of this Court our answer is stare decisis. It was then argued that the principle of public policy on which the above decisions were based will no longer be available as a ground of judicial decision in the face of subsequent legislation relating to Dasabhandam inams. Reliance was placed upon Sec. 140 of the Madras Estates Land Act as reenacted in 1934. THE Section provides that on default of a Dasabhandam inamdar to maintain an irrigation work in good repair, the landholder of the estate served by the irrigation work may execute the repairs specified by an order of the Collector or Revenue Divisional Officer passed under Sec. 139 (1) (a) of the Act and recover the cost of the same from the Dasabhandam inamdar by a suit before the Collector. THE Section also provides that the amount of the decree so obtained by the landholder could be recovered as if it was an arrear of rent. One of the ways in which an arrear of rent can be recovered is a sale of the holding of the ryot. It is therefore argued that there is now no prohibition against bringing Dasabhandam inam lands to sale through court and that the reasons given in the decisions already cited for invalidating a private sale of the inam lands, no longer exist. In our opinion, this is not a conclusive argument. It is one thing to confer a special power on the landholder, in the interest of the ryots depending on an irrigation, work, to sell the land of the defaulting Dasabandham inamdar and it is a different thing to allow the Dasabhandam inamdar himself to sell the lands burdened with service for his own personal or private advantage. Secondly, it cannot be assumed that every method of recovering arrears of rent available to the landholder under the Estates Land Act would necessarily be available against the Dasabhandam inamdar. THE inamdar is not a ryot. THE inam land is not ryoti land. THE land held by a Dasabhandam inamdar is not a holding. THErefore all the remedies available to a landholder for recovery of arrears of rent under the Estates Land Act may not be available to the landholder for realising the cost of repairs from the Dasabhandam inamdar under Sec. 140(1). It is only to the-extent to which such remedies can be availed of without violating other provisions of law, that Sec. 140(1) can be invoked by the landholder. Decrees for arrears of rent could be transferred for execution to a Civil Court and it would be anomalous to hold that by reason of Sec. 60 C. P. C., the Civil Court executing a decree passed by the Collector under Sec. 140 (1) of the Madras Estates Land Act cannot attach Dasabhandam inam lands, while the Revenue Court executing the same decree could do so. Under Sec. 140 (2), of the Estates Land Act and Sec. 17 (2) of the Estates Abolition Act, 1948 the Legislat expressly reserved the right of resumption in the case of Dasabhandam them. If the Legislature had intended to abrogate the well established principle based on public policy that inams subject to the burden of service of a public nature, are inalienable it would have made a special provision to that effect. This, however, has not been done. In these circumstances, we are unable to hold that the principle of the decision cited above has been weakened or abrogated. We, therefore, agree with the conclusion of the learned Judge and dismiss the Letters Patent Appeal with costs of respondents 1 to 3 and 6, one set. T. A. B. L. Pt A. dismissed.
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