(1) This is a petition under article 226 of the constitution of india praying for the calling of the records pertaining to a. S. No. 182 of 1956 on the file of the court of the estates abolition tribunal (district judge) , west godavari, at eluru, and to quash the decision dated 12th april, 1958, of the tribunal in the appeal.
(2) The petitioners before me claim to be the ryots in nagulapalli mokhasa. The respondents 2 and 3 are the mokhasadars. After the coming into force of the madras estates (abolition and convertion into ryotwari) act xxvi of 1948, the settlement officer suo motu, acting in exercise of his powers under section 9, clause (i) of the act, started an enquiry to determine whether the nagulapalli mokhasa is an inam estate within the meaning of section 2, clause (7) of act xxvi of 1948. Notices of that enquiry were duly served on the mokhasadars and the tenants. A large mass of evidence was produced before the settlement officer. By an order, dated 15th may, 1950, the settlement officer held that though the mokhasa was a grant of a named village and, therefore, would fall within the definition of section 3 (2) (d) as amended by act ii of 10,45, inasmuch as the evidence disclosed that the grantee had and enjoyed both the warams, it would be an estate only by reason of the third amendment act, act xviii of 1936, and therefore, not an inam estate within the meaning of section 2, clause 7 of the madras estates abolition act, act xxvi of 1948. The ryots carried the matter in appeal to the estates abolition tribunal in a. S. No. 295 of 1950. The tribunal held that the nagulapalli mokhasa is an inam estate as defined in section 2 (7) of act xxvi of 1948. An application under article 226 of the constitution was filed against that decision in the madras high court. The high court quashed the decision of the tribunal on the ground that it was passed by two out of three members and, therefore, invalid. The appeal (a. S. No. 295 of 1950) was remanded to the estates abolition tribunal for disposal according to law. The present petitioners had also filed an independent appeal against the order of the settlement officer. The estates abolition tribunal at eluru (district judge) by its order, dated 12th april, 1958, held that it was not proved that the grant of the mokhasa was of the whole or of a named village and that, therefore, it would not be an estate even under section 3 (2) (d) as amended by the third amendment act, act xviii of 1936. It is this decision that is assailed in this petition.
(3) In a case where the question is whether certain lands do or do not constitute an estate within the meaning of section 3 (2) (d) of the madras estates land act, and the decision has to be reached on the examination and consideration of a large mass of documentary evidence, the appropriate course would be to refer the parties ' to a suit. But where the decision is vitiated by either lack of jurisdiction or a manifest error of law, it is open to the high court in exercise of its jurisdiction under article 226 of the constitution to quash the order.
(4) In basappa v. Nagappa1 the supreme court observed as follows : -
"an error in the decision or determination itself may also be amenable to a writ of certiorari, but it must be a manifest error apparent on the face of the proceedings, e. G. , when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari, but not a mere wrong decision."
(5) This statement of law was affirmed again by the supreme court in hari vishnu kamath v. Ahmed ishaque. In prem singh and others v. The deputy custodian of evacuee property and others, (1958) s. C. J. 29. The chief justice of india reaffirmed the statement of the law in hari vishnu kamah v. Ahmed ishaque, (1955) 1 m. L. J. 157 : (1955) s. C. J. 267 : a. I. R. 1955 s. C. 233 (s. C.). And basappa v. Nagappa, (1954) s. C. J. 695 : a. I. R. 1954 s. C. 440 it may, therefore, now be taken as settled law that a writ of certiorari could be issued to correct an error of law, provided it is one that is manifest and patent on the face of the record. Mr. Somasundaram, the learned counsel for the petitioners, has contended, firstly, that the finding of the tribunal that the mokhasa is not an estate within the meaning of section 3 (2) (d) of act i of 1908 as amended by act ii of 1945, is so palpably erroneous having regard to the recitals in the inam fair register extract ; secondly, that the tribunal was under a legal misapprehension in solely casting on the ryots the burden of proving that the minor inams were granted prior to the major grant ; and thirdly, that it ignored the provisions of act xviii of 1957 (andhra). It is argued that these mistakes constitute errors apparent on the face of the record so as to justify the intervention of this court under article 226 of the constitution.
(6) Mr. Ramanujachari, the learned counsel for the respondents has contended that the recitals in the inam fair register in this case are not conclusive, that since the poramboke and waste lands were excluded, the grant could not be regarded as of a whole village, that the tenants have not proved that the bhatavrithi and personal inams were anterior in date of the major grant of the mokhasa and lastly the enjoyment of the mokhasa in two shares coupled with the circumstance that two title - deeds were issued would indicate that the grant was not of the whole village. After considering the arguments advanced at the bar, i am of opinion, that the contentions of mr. Somasundaram should prevail.
(7) Before referring to the crucial documents in the case, it is necessary to refer to a few relevant statutory provisions in the madras estates (abolition and conversion into ryotwari) act, act xxvi of 1948, section 2 (7) , section 9 (1) and section 9 (7).
"section 2 (7). - inam estate ' means an estate within the meaning of
section 3, clause (2) (d) of the estates land act, but does not include an inam village which became an estate by virtue of the madras estates land (third
amendment) act, 1936. Section 9 (1). - as soon as may be after the passing of this act the settlement officer may suo moiu and shall, on application, inquire and determine whether any inam village in his jurisdiction is an inam estate or not. Section 9 (7). - in the absence of evidence to the contrary, the settlement officer and the tribunal may presume that an inam village is an inam estate."
(8) By act xviii" of 1957, section 2 (7) has been amended and the following provision substituted : " inam estate means an estate within the meaning of section 3 (2) (d) of the madias estates land act (madras act i of 1908) ". section 3 (2) (d) of act i of 1908 as it originally stood was in these terms : "any village of which the land revenue alone has been granted in inam to a person not owning the kudivaram; thereof provided that the grant has been made, confirmed or recognised by the british government, or any separated part of such village. "
(9) This definition was amended by the third amendment act, act xviii of 1936, which substituted the following definition :
" any named 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 or grantees."
(10) In ademma v. Satyadhyana thirtha swamivaru, (1943) 2 m. L. J. 289. And suri reddi v. Agnihotrudu, (1943) 2 m. L. J. 528. The madras high court took the view that if at the time of the grant of the village there were pre - existing minor inams, a grant could not be regarded as of a whole village. To settle that uncertainty, the madras legislature passed act ii of 1945, adding explanation i to section 3 (2) (d) in these terms :
"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 that name which have already been granted on service or other tenure or been reserved for communal purposes."
(11) By sub - section (2) of section 2 of the act, retrospective effect was given to the amending act from the date on which the madras estates land (third amendment) act, 1936, came into force, i. E. , 28th october, 1936. The object of this amendment was as pointed out in venkanna v. Lakshmipathi raju, (1946) 1 m. L. J. 300. Lakshminarasimhacharyulu v. Ratnam, (1947) 2 m. L. J. 289. Bapiraju v. Vallayya, (1947) 2 m. L. J. 298. And janakirama raju v. Appalaswami, (1915) 29 m. L. J. 478. To ensure that where the grant is expressed to be of a village, the grant would constitute an estate notwithstanding that it did not include lands which had been already granted on service or other tenure or resecved for communal purposes and to restore the law as laid down in narayanaswami naidu v. Subrahmanyaml therefore, the question in this case is whether the nagulapalli mokhasa is the grant of a whole and a named village and an estate within the meaning of section 3 (2) (d) of act i of 1908. The fact that the grantee had both the warams and, therefore, it was an estate by reason of the third amendment act of 1936, is of no significance for the reason that by act xviii of 1957, even what may compendiously be called the 1936 estate have been brought under the definition of section a (7) of act xxvi of 1948.
(12) The original sanad is not produced. In its absence, main reliance will have to be placed on the recitals in the inam fair register relating to the nagulapalli mokhasa, an extract of which has been filed and marked as exhibit p - 1 in the case. The heading of the extract is " the register of inams in the nagulapalli mokhasa ". Under column 2 it is described as personal. Under column 5, the total gudikat of the village as per inam account of i2i5 - f. Is given as 749. 58 acres. Poramboke and waste lands including the site of the village are described to be of an extent of 116. 36 acres. Inams for bhatavrithi and service are stated to be of an extent of 161. 70 acres. The balance 302. 26 acres are described as dry and 169. 26 as wet making a total of 471. 52 acres, which were held at the time of the inam enquiry in two shares of 151. 13 acres dry and 84. 63 acres wet each. Under column 7 the present assessment was stated to be rs. 484 - 0 - 0. The entries under column 8 show that originally the mokhasa was granted for the personal benefit of the holder in lieu of the privileges of the office of deshpande, which had been resumed, the office being discontinued. Rs. 262 - 14 - 0 is shown as the jodi payable. Under column 11, it is shown that the grant was confirmed by raja apparao in fasli 1171 corresponding to 1761 a. D. The next and most important recitals are under column 13 where as per the renewed sanad the original grantee's name is described as manchiraju lakshminarasu. Columns 14 to 19 deal with the names of the present enjoyers and their relationship to the original grantees. Under column 20, in the remarks of the deputy collector, it is stated that at the time of the permanent settlement the money fees attached to the offices of despandi and muzumdar were discontinued and the village was confirmed in the possession of the holders. In the explanatory memorandum, it is pointed out that since the permanent settlement the village continued in the same family for more than one life. In the sub - division accounts prepared in fasli 1251 corresponding to 1841 a. D. This mokhasa was shown as fully assessed. The remarks and recommendations of the deputy collector under column 21 were approved by the inam commissioner. The grant was confirmed and title - deeds 1428 and 1429 were issued. It is true, as contended by mr. Ramanujachari that the heading of the inam fair register is not conclusive. Exhibit p - i, however, shows that the entire gudikat of the village exclusive of the poramboke or waste lands including the site, bhatavrithi and other service inanis was granted as a mokhasa. If the grant of the mokhasa was not the entirety of the balance of the extent of the village, the mokhasa would have been described also as an inam along with the inams for service and other tenures. Further, under column 21 the deputy collector has expressly stated that since the permanent settlement the village continued in the same family for more than one life.
(13) On a fair reading of the recitals in the inam fair register extract, the conclusion is irresistible that the grant was expressed to be that of the whole and named village exclusive of the pre - existing inams and porambokes. Therefore, it would directly fall within the meaning of section 3 (2) (d) read with explanation i. The learned district judge has also overlooked the significance of exhibit d - a which is a certified copy of an extract from the register of whole village inams. This register is obviously maintained as per directions contained in clause 15 of regulation xxxi of 1802. This register relates to the lands exempted from the revenue and not being the badshahi or royal grants. Further, the learned district judge should have attached considerable importance to the judgment of the high court of madras (exhibit d - 4) where king, j. , held that nagulapalli mokhasa was an estate within the meaning of the third amendment of 1936.
(14) Some attempt has been made by mr. Ramanujachari to refer to the exclusion of the poramboke or waste lands. It is now well settled that the words 'deduct poramboke' do not mean that the poramboke or waste lands were excluded from the grant, but should be understood as showing that the poramboke or waste land was deducted in ascertaining the assessment since such land could not be assessed (vide the decision of the privy council in krishnaswami v. Perumal, a. I. R. 1950 p. C. 105. Bhavanarayana v. Venkatadu, (1953) 2 m. L. J. 748 at 758 (f. B.). And state of madras (now a. P.) by district collector, srikakulam v. Netuni narayudu, (1959) 2 an. W. R. 180. There is, therefore, no force whatever in this contention.
(15) The next contention of mr. Ramanujachari is that the fact that the village was being held in two shares and two title - deeds were issued, which would indicate that the grant was not expressed to be of a whole village. There is absolutely no force in this contention. In bhavanarayana v. Venkatadu, the full bench of the madras high court observed as follows : -
"when the inam commissioner after taking into consideration all the information placed before him regarding the original grant, issues a title deed with regard to a portion of the acreage of the original inam, by that process it should be deemed that he has recognised the original grant. It does not matter that at the time of the settlement, portion of the original grant happened to be in the possession of mifferent individuals. But if the total quantum of the original grant was recognised by the issuing of separate title - deeds, even then it must be said that the original grant has been confirmed or recognised. The crucial factor is that the inam commissioner should recognise or confirm the entire area of the original grant as an inam though the result of such confirmation might 1 e the grant of different title - deeds separately to different individuals. It is not the multiplicity of title - deeds that matters, but it is the fact that the entire area originally granted retains its character as an inam. Viewed in that light it does not matter whether for the minor inams created subsequently separate title - deeds have been issued at the time of the confirmation."
(16) The view expressed by the full bench has now been put on a statutory basis. Act xxxv of 1956 has introduced explanation i (a) to section 3 (2) (d) in these terms :
"an inam village, hamlet or khandriga in an inam village granted in inam, shall be deemed to be an estate, even though it was confirmed or recognised on different dates, or by different title - deeds, or in favour of different persons."
(17) The learned district judge has pointed out that there is nothing to show that the other portions of the village (presumbaly bhatavrithi and other personal inams) were granted previous or subsequent to the major grant. Assuming that there is no direct evidence as to the date of the grant of the minor inams, in such a case the presumption enacted in section 9 (7) of the estates abolition act should have been invoked. The position has now been put beyond all doubt by reason of the decision of the full bench of this court in sundararami reddi v. State of andhra, (1958) 2 an. W. R. 536. Where the learned chief justice has adopted with approval the decision of the full bench of the madras high court in varadarqjaswami varu temple v. Krishnappa goundar, (1958) 2 m. L. J. 463 (f. B.). And the observations of chief justice subba rao in the referring order in sundararami reddi v. State of andhra, that the presumption under section 9 (7) of act xxvi of 1948 is a rebuttable presumption and it was for the landlord to adduce evidence to establish that one or the other of the minor inams were carved out of the land reserved by the original grantor. The learned chief justice pointed out that the burden of proof in such a case would be on the landlord and not on the tenant. The observations of satyanarayana rao, j. , in ramarao v. Lingareddi, (1956) an. W. R. 89. Were not approved. After the full bench decision was rendered, umamaheswaram, j. , referred the question again to a full bench in stale of andhra v. Appalacharyulu, (1959) 2 an. W. R. 122. As to whether the burden of proof would lie upon a tenant or the landlord to show that the grantor reserved some interest in the land and granted the minor inam subsequent to the grant of the major inam in cases falling under section 3 (2) (d) of the madras estates land act. A full bench of this court reiterated the view taken in sundararami reddi v. State of andhra, that the burden of proof lies upon the landlord to show that the grantor reserved some interest in the lands and granted minor inams subsequent to the grant of the named village in cases falling under section 3 (2) (d) explanation 1 of the madras estates land act as amended by madras act ii of 1945.
(18) In this case it is abundantly clear that the landlord has not discharged the burden of showing that at the time of the original grant, the grantor reserved some portions of the village and granted the minor inams subsequent to the grant of a named village.
(19) It seems to me that this is a case where the learned district judge has misapprehended the clear terms of the definition of an 'estate' under section 3 (2) (d) of act 1 of 1908 as amended by act ii of 1945 and of section 2 (7) of act xxvi of 1948 as amended by act xviii of 1957. He has also failed to notice the burden of proofresting on the landlord and did not invoke the presumption under section 9 (7) of act xxvi of 1948. These circumstances, to my mind, constitute an error patent on the face of the record so as to justify interference under article 226 of the constitution of india. The decision of the estates abolition tribunal (district judge) in a. S. No. 182 of 1956 is quashed and the writ petition allowed. The respondent 2 and 3 will pay the petitioner costs of this petition. Advocate's fee rs. 100 petition allowed; order of tribunal quashed.