TaxTMI 
TaxTMI 
TaxTMI 
1949 (6) TMI 2
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....rabic" origin which means reward or favour. The word came into use after the Mahomedan conquest. In ancient days, grants of land, or revenue, were made by Hindu sovereigns to individuals, particular families, or communities for various purposes, or to religious institutions, for their upkeep. These were known as "Manyams," The practice was continued by the Mahomedan rulers, and later, by the East India Company also, till it was discontinued in the earlier years of the nineteenth century, as a result of instructions received from the Directors of the Company. Thenceforward, gifts of land were granted only in special cases, the ordinary cases being provided for by the grant of money pensions. Inams in the presidency of Madras are of two kinds ; first, those where the proprietary right in the soil and the right to the Government share of the revenue derivable from land coalesce in the same individual, and secondly, those where the proprietary or occupancy right is vested in one or more individuals, whilst the Government share of the revenue has been granted to another (para. 71, Mr. W.T. Blair's report on the operations of the Inam Commission, dated October 30, 1869....
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....; who lived "in Dantaloor in Guntur District." The grant is lost and has not been produced. In 1808, the Putcha family transferred half of the inam to the Tangirala family, whose successor in title is the plaintiff. By two transfers in 1912 and 1913, the Putcha family conveyed the remaining half of the inam to Tangirala Narasimha, the father of the plaintiff. As a result of these transfers the Tangirala family owned as inamdar the entire extent of the inam which had been originally granted to the Putcha family. 7. The plaintiff alleged in his plaint that the village was uninhabited and overgrown with shrubs and bushes in which animals moved about, that his predecessors in title obtained both melvaram and kudivaram rights under the grant, that the land gradually became fit for cultivation, that registered leases had been executed by defendants in 1908, and in various subsequent years, containing admissions of the plaintiff's rights, and that, as the present owner of the land, he is entitled to eject the defendants. The defendants denied that the land was waste land, and averred that the Putcha people had only melvaram right under the grant, and that they (the defendan....
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.... generally understood as meaning a permanent right to occupy the land. Shortly stated, for a long time the courts in Madras took the view that an inam grant conveyed to the grantee only the melvaram interest in the land. In Suryanarayana v. Patanna (1918) L.R. 45 I.A. 209, the Board held that there is no such presumption. This view was affirmed in Upadrashta Venkata Sastrulu v. Divi Seetharamudu (1921) I.L.R. 44 M. 588, in which their Lordships held that when the question arose each case must be considered on its own facts. These decisions of the Board were differently understood by different Division Benches of the High Court. In certain cases, it was held that both the melvaram and the kudivaram interests passed to the grantee unless the contrary was shown; while in others, it was held that there was no such presumption according to the Privy Council decisions. In the Full Bench decision in Muthu Goumdan v. Perumal Iyen (1921) I.L.R. 44 M. 588, it was held that underlying the exposition of law by their Lordships there was an initial presumption of law in favour of the grant of both varams, which would mean that in a suit in ejectment by the inamdar against a tenant the onus of pr....
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.... 83 are correctly understood, and that the decision in that case by which the burden of proving occupancy rights is thrown on the tenant "is only applicable in cases where the inamdar is proved or admitted to be the owner of the land itself" (3). Thus understood, the decision did not contravene the principle that in a suit for ejectment the burden lies on the inamdar as plaintiff to prove his right to evict and was in conformity with the decision in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi (1922) L.R. 49 I.A. 286. 12. In Ayyangars v. Periakaruppa Thevan (1929) 30 Mad. L.W. 583, decided three years later, and without reference to the decision in Zamindar of Parlakimedi v. Ramayya (1926) 51 Mad. L.J. 510, which was apparently not cited to them, the learned judges, Wallace and Odgers, JJ., were inclined to hold that the decision in Nainapillai Marakayar v. Ramanathan Chettiar (1923) L.R. 51 I.A. 83 being later in point of time was binding on them and that "....it laid down that the onus therefore rests upon the defendants to show that they possess such right of occupancy in their holdings as will prevail against the plaintiffs' prima facie right ....
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....considering on which side the burden lies, on the evidence, which he thought was "not sufficient for the suit to be disposed of in this way," he was of opinion that the three circumstances referred to immediately above are entitled to more weight than the admissions (assuming that the tenants knew the contents of the muchilikas) of ignorant and illiterate ryots," 15. As there was thus a difference of opinion between the two learned judges they stated under Clause 36 of the Letters Patent the following points (already quoted at the commencement) of law and fact: "(1.) Whether in a suit by a holder of a minor inam to eject the tenants from the holding, the burden is on the plaintiff to make out a right to evict by proving that the grant included both the melvaram and the kudivaram interests or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease, or whether the burden is on the tenants to prove that they have occupancy rights. (2.) Whichever way the burden lies, whether the burden has been discharged in the present case by the party on whom it lies." The case was posted for disposal before King, J., who held....
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....xth paragraph they do state, most definitely, that they will consider whether the defendants have proved that they had rights of permanent occupancy under the Madras Estates Land Act, which can mean on the facts of that case only whether they have proved that the lands which they were cultivating were part of an estate, which again can mean only whether in those lands the melvaram alone was granted to the inamdar. If their Lordships meant the doctrine as to burden of proof which they laid down in their fourth paragraph to apply only to cases where the landlord's title to both varams was already admitted or proved, then that paragraph was bound logically to come not before but after the decision of their Lordships on the evidence as to the terms of the grant. Whether 47 Madras 337 be held inconsistent with earlier Privy Council decisions or not, I cannot resist the conclusion that the proposition of law in the fourth paragraph is a general proposition of law which must be applied to a case such as the one now before me. The juxtaposition of the third and fourth paragraphs, and the language of the sixth show clearly that a tenant who admits a melvaram right in his landlord and cl....
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....udi Kotayya (1897) I.L.R. 20 M. 299, it was pointed out that there is no substantial analogy between an English tenant and an Indian ryot for the simple reason that the rights of the ryots in most cases came into existence not under any letting by the Government of the day or its assignees, the zamindars, but independently of them. This view was fully developed in the well-known case of Cheekati Zamindar v. Ranasooru Dhora (1899) I.L.R. 23 M. 318. It was also pointed out in Venkatanarasimha Naidu v. Dandamudi Kottayya I.L.R. 20 M. 299, 302 "that the interest in the land is divided into the two main heads of the kudivaram interest and the melvaram interest, and that the holder of the kudivaram right, far from being a tenant of the holder of the melvaram right, is really a co-owner with him. The kudivaram right originated in priority of effective occupation and beneficial use of the soil, and the claim of the government and the assignees of government, was always, in these parts, to a share in the produce raised by the ryots." See Narayana Ayyangar v. Orr (1902) I.L.R. 26 M. 252, 255. 19. The controversy as between the zamindar and his tenants was settled by Section 6 of t....
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....sment on such lands...." By Section 15 of the regulation the collectors were required to keep a register of the inams. One of such registers is Oakes Inam register, noticed by the Privy Council in Suryanarayana v. Patanna L.R. 45 I.A. 209. Various measures followed the passing of this regulation, but nothing effective was done to settle the validity of the titles of the inamdars till 1859, when the question of examining their titles was taken up by the Inam Commission. As a result of its deliberations various Acts - Madras Acts IV of 1862, IV of 1866, and VIII of 1869 - were passed. The history of these enactments, into which it is not necessary to inquire, is fully dealt with by Sir George Rankin in Secretary of State for India v. Srimath Vidhya Sri Varada Thirta Swamigal (1941) L.R. 69 I.A. 22, 39. Attention may, however, be drawn to the following provision of Madras Act VIII of 1869, which enacted: "Nothing contained in any title deed heretofore issued to any inam-hold or shall be deemed to define, limit, infringe or destroy the rights of any description of holders or occupiers of the lands from which any inam is derived or drawn, or to affect the interests of any pers....
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....med and considered the dues of the Government." 23. The Board in Chidambara Sivaprakasa Pandora Sannadhigal v. Veerama Reddi L.R. 49 I.A. 286 quoted the above well-known statement apparently with approval, but left it without any comment, obviously because it had been already decided by the Board in Suryanarayana v. Patanna L.R. 45 I.A. 209 that in an ejectment suit brought by an inamdar against the cultivating ryot no presumption in law exists that the grant conveyed only the melvaram, and the decision was accepted as not open to any question. 24. Their Lordships will now proceed to consider how the question as to the onus of proof raised in the first question before the Board should be decided when the merit? of the case are examined, without any reference to the supposed presumption in law that an inam grant conveys only melvaram rights, which has now been held not to exist. Admittedly, no question strictly relating to onus of proof as such arose for decision in Suryanarayana v. Patanna L.R. 45 I.A. 209. That case only dealt with the presumption in law as regards the nature of the interest that exists in lands granted in inam. In that case the ryots claimed rights of perm....
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....he onus in respect of this matter rested. Their Lordships do not consider it necessary to enter upon a discussion of the question of onus, because the whole of the evidence in the case is before them and they have no difficulty in arriving at a conclusion in respect thereof." Where no difficulty arises in arriving at a conclusion, as in the cases above-mentioned, the question respecting the onus recedes into the background, but where the court finds it difficult to make up its mind the question comes to the foreground and becomes the deciding factor. In Yellappa Ramappa v. Tippanna (1928) L.R. 56 I.A. 13, 18, Lord Shaw said: "In any case onus probandi applies to a situation in which the mind of the judge determining the suit is left in doubt as to the point on which side the balance should fall in forming a conclusion. It does happen that as a case proceeds the onus may shift from time to time...." 25. What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as "shifting." The burden of proof on the pleadings never shifts, it always remains constant see Pickup v. Thames Insurance Co.....
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....hat in certain circumstances the onus shifts. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered." 28. Their Lordships may here observe that in shifting the burden from one side to the other by adducing evidence, parties may rely on presumptions in law, which are really inferences of fact, in place of actual facts. If there was a presumption in law that an inamdar was the owner of both kudivaram and melvauran interests in the land then he could rely on that presumption to discharge the initial burden of proof that lay on him to prove his title to eject. In this sense the presumptions arising from law are connected with the question of onus of proof. It is settled law that in a suit for ejectment the burden of proof lies on the plaintiff to show that he has a right to eject the defendant before the onus is shifted to the defendant to prove that he has a....
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....to eject them, and that proof of long occupation at a fixed rent did not satisfy that onus; and in Seturatnam Aiyer v. Venkatachala Gounden L.R. 47 I.A. 76, in a suit by landlords for the ejectment of the defendants from lands in a ryotwari district in Madras, the giving of notice to quit not being disputed, it was held that the onus of proving that the defendants had rights of permanent occupancy was "upon them." 31. Instead of making the presumption that the landlord is the absolute owner of the land and dealing with the case on that assumption their Lordships proceeded to consider the terms of the grant, and after finding that themelvaramand kudivaram interests in the land were at some time granted to the temple, they began to consider "whether the defendants have proved that they, or those through whom they claim title as occupiers of the lands in suit, obtained at any time a right of permanent occupancy in the lands." This being their method of approach to the case it seems to their Lordships that, as pointed out in Zamindar of Parlakimedi v. Ramayya 51 Mad. L.J. 510, 515, "when the principle above-mentioned was laid down...the words 'tenant of la....
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....ancy in such circumstances their Lordships, in Nainapillai Marakayar v. Ramanathan Chettiar (3), laid down the principle that the burden will be on him to prove that he has such rights.. Read in the light of the above cases the decision in Nainapillai Marakayar v. Ramanathan Chettiar L.R. 51 I.A. 83 by which the burden of proving occupancy right was thrown on the defendant did not enunciate any rule as to burden of proof inconsistent with the decision in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi L.R. 49 I.A. 286. In this connexion it may be stated that it is not correct to say, as was boldly argued, that a ryotwari pattadar has no proprietorship in the land he holds under the Government. In his Land Systems of British India, Baden Powell gives the following definition of the ryotwari system: "A system of land revenue administration in which there is no middleman or landlord over the individual ryots, who are severally liable for the land revenue assessment on the holding." Again, quoting from the Settlement Manual from Madras, he describes the ryotwari system as follows: "Under the ryotwari system every registered holder of land is recognized as its....
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....lage has the right of cultivation also and he is therefore at liberty to arrange for it from time to time either by granting leases or letting it to purakudies for varam or under what is usually called the pannai system by means of labourers who are paid wages in grain." Subramania Ayyar, J. added: "In other words, the view of the learned judges was that permanent holdings under raiyatwari proprietors being unusual and exceptional, the onus is on the party setting up such a special kind of holding." The cases which arise between ryotwari pattadars and their under-ryots are not in point in disputes between inamdars and cultivating ryots. 38. The principle of the burden of proof laid down in Nainapillai Marakayar v. Ramanathan Chettiar L.R. 51 I.A. 83 when read in the light of the facts of the case also, does not appear to contravene the rule that in a suit for ejectment the initial burden lies on the plaintiff to prove that he has the title to immediate possession. The lands in respect of which a decree in ejectment was sought were the endowed property of a temple. It is stated in para. 3 of the judgment that "it is not disputed that the defendants were tenants ....
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....n a case where the defendants' tenancy is admitted - an admission that involves the admission of the defendants' right to be in possession--the plaintiff must necessarily establish as to how he is entitled to possession; in other words, how the tenancy has come to an end" Ibid. 161. After referring to the two decisions of the Board in Seturatnam Aiyar v. Venkatachala Gounden L.R. 47 I.A. 76 and Nainapillai Marakayar v. Ramanathan Chettiar L.R. 51 I.A. 83 they stated as follows: "In my opinion, the decisions of the Judicial Committee do not indicate that their Lordships ever intended to depart from these elementary rules. In both the cases the plaintiff's title to the lands was conceded, and notices by which the defendants' tenancies were terminated were not disputed. In neither case had any grant been alleged, asserted, or admitted on behalf of the plaintiff, but inasmuch as the defendants had been in occupation on payment of rent, a tenancy from year to year terminable on notice was all that was conceded" 32 Cal. W.N. 162. 40. Before proceeding further one more case - already referred to - remains to be discussed. In Ayyangars v. Periakaruppa Thevan....
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....mdars, inamdars or to Government officers, such as tahsildars, amildars, amins or thannadars, the payments which have always been made are universally deemed the due of Government (4), he observed as follows: "To treat such a payment by cultivators to zamindars as 'rent' in the strict sense of the term and to imply therefrom the relation of landlord and tenant so as to let in the presumption of law that a tenancy in general is one from year to year, would be to introduce a mischievous fiction destructive of the rights of great numbers of the cultivating classes in this province who have held possession of their lands from generation to generation" I.L.R. 20 M. 229, 302." Further comment on the above observation is needless. It may be mentioned that the passage quoted above which - as already stated - is from the proceedings of the Board of Revenue dated January 5, 1818, was referred to in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi L.R. 49 I.A. 286 with approval by their Lordships as correctly describing the position of cultivating ryots in the agricultural economy of southern India. Secondly, it also ignores the principle laid down by the Boa....
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....terate, and the lease deeds were not read over to them. Both sides also relied on general circumstances relating to the holding as throwing light on the nature of their respective rights in the land. 43. It was conceded by both parties in the courts in India that the extracts from the various registers filed by the plaintiff do not throw any light on the question whether the grant was of one varam only or of both varams. In support of his claim the plaintiff mainly relied on certain stereotyped statements made by the defendants in the various lease deeds executed by them. No lease prior to the year 1908 has been filed. The terms of the lease deed R are non-committal and are of such a nature as has been held not to contain any admission that the ryots have no rights to the kudivaram interests in the land. Terms appearing in S to S-5 deeds, such as "The land belongs to you and has been in your enjoyment with absolute rights," "If I fail to deliver rent on due date, I shall pay the value of the paddy in arrears," "At the expiry of the term in the khath I shall deliver up possession of the "land" do not necessarily show that the landlord owns kudivar....
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....d to by Wallis, C.J. (as he then was) in an earlier decision, Zamindar of Chcllapatti v. Rajalapati Somayya (1914) 27 Mad. L.J. 718: "In this connexion it is to be borne in mind that numerous instances have come before the courts in which subsequent to the decision of the Chokalinga's case (1871) zamindars succeeded in inserting in pattas and muchilikas terms negativing the existence of occupancy right...." In the above case 1 lie claim of the zamindar to treat certain lands as his "private land" based on the admissions to that effect contained in the muchilikas executed by tenants was negatived. 45. Their Lordships cannot neglect the consideration that a ryot, so long as he is not evicted, might be prepared to sign anything, and that the evidential value of such a contract should be judged accordingly. Their Lordships will only add that this attitude might be modified if such statements in the leases were supported by other circumstances which - as they will show presently - do not exist in this case. After careful consideration their Lordships think it is unsafe to act on the statements and admissions contained in the S series lease deeds. In considering ....
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....ar of charges for the repairs of the ridges, the fact that the rents have been raised from time to time and the fact that there is no proof of dealings by the tenants by sales, mortgages or otherwise, it seems to me that the only reasonable inference is that the tenants have failed to make out that they have any occupancy right in the land." The provision contained in the kaths for the payment of charges by the inamdar stands on the same footing as the other provisions in the kaths which their Lordships have already considered. In addition, it may be pointed out there is no reliable evidence that the landlord has paid for any repairs. (See para. 22 of the Subordinate Judge's judgment.) As regards the payment of increased rent, Horwill, J. observes "The learned Subordinate Judge has held that the rent paid by the tenants has always been the same and that although in muchilikas from 1913 onwards the tenants agreed to pay increased rent, yet they never in fact paid it. Although this can be spelt out of the oral evidence and may be true, this is not at all clear from the documentary evidence." Krishnaswami Ayyangar, J. apparently accepted the payment of increased ren....