Subba Rao, CJ.

1. This appeal by special leave raises the question. whether the land described as "Vantari Muttah" in Talluru village was included in the assets of Jaggampeta A and D Zamindari estates, in Peddapuram taluk, East Godavari District, Andhra Pradesh, at the time of the Permanent Settlement.

2. The undisputed facts may be briefly narrated. The said Muttah comprises an area of 50 puttis, i.e., about 400 acres, and five tanks are situate therein. The said Muttah was granted to the predecessor-in-interest of the appellants and respondents 2 to 5 long before the Permanent Settlement in consideration of payment of Kattubadi of a sum of Rs. 620. At the time of Inam Settlement, it was not enfranchised by the Government. After the Madras Estates (Abolition and Conversion into Ryotwari) Act XXV1 of 1948 was passed on September 22, 1952, by a notification issued there under, the Government took over the Jaggampeta Estate. In April 1953, when the appellants and respondents 2 to 5 tried to effect repairs to the tanks, the village munsif of Talluru under instructions from the 1st respondent, obstructed them from doing so. Thereupon, the appellants filed O. S. No. 269 of 1953 in the Court of the District Munsif Peddapuram, against the State of Andhra and others for a declaration that the 1st respondent had no right to the said tanks and for an injunction restraining it and its subordinates from interfering with their rights in the said tanks The 1st respondent resisted the suit inter alia on two grounds, namely, (i) the entire Vantari Muttah was included in the, assets of the said estate of Jaggampeta at the time of the Permanent Settlement, and (ii) in any view, under the grant, the predecessor-in-interest of the appellants and respondents 2 to 5 was given only the land and not the tanks therein. The learned District Munsif upheld the claim of the appellants to the said tanks and decreed the suit. On appeal, the learned Subordinate Judge, Kakinada, held that the said land was included in the assets of the Zamindari at the time of the Permanent Settlement and, on that finding he dismissed the suit. On further appeal, Kumarayya, J. of the Andhra Pradesh High Court agreed with learned District Munsif. But, on Letters Patent appeal, a Division Bench of the High Court, consisting of Chandra Reddy, C. J. and Chandrasekhara Sastry, J., agreed with the learned Subordinate Judge. The result was that the suit of the appellants was dismissed with costs throughout. Hence the present appeal.

3. On the pleadings, two questions arose for consideration, namely, (i) whether the Muttah was included in the asset of the Zamindari at the time of the Permanent Settlement, and (ii) even if the said Muttah was excluded from the asset of the Zamindari, whether the original grant comprised the tanks.

4. The second point need not detain us, for, though Kumarayya, J., held on the said point in favour of the appellants, the Division Bench did not express any opinion thereon, in view of its decision on the first point. As we are agreeing with the Division Bench on the first point, it is not necessary for us to express our opinion on the second point.

5. Apropos the first point, Mr. R. Ganapathy Iyer, learned counsel for the appellants, contended that the said Muttah was granted to the predecessor-in-interest of the appellants and respondents 2 to 5 long before the Permanent Settlement by the then Zamindar for public services, subject to a payment of favourable rent, that, subsequently, the services were discontinued, but the grant was continued subject to the payment of favourable rent, that at the time of the Permanent Settlement the said Muttah was excluded from the assets of the Zamindari and that, therefore, the said Muttah was outside the scope of the notification issued by the Government under Madras Act XXV of 1948.

6. Mr. P. Ram Reddy, learned counsel for the 1st respondent, the State of Andhra Pradesh, argued that the grant was subject to the payment of the full assessment, that the said assessment was paid partly in cash and partly by personal services to the Zamindar, that at the time of the Permanent Settlement the said Muttah was included in the assets of the Zamindari and that, as it was a part of the Zamindari, the Government. even at the time of the Inam Settlement, did not take ant steps to enfranchise the same.

7. Before we advert to the evidence, it will be convenient to notice briefly at this stage, the relevant law on the subject.

8. Under S. 3 (b) of the Estates Abolition Act, the entire estate. including inter alia the tanks, shall stand transferred to the Government and vest in it free of all encumbrances. This Section would be attracted only if the suit land was part of an estate as defined under the Act. It cannot be disputed that if the land was included in the assets of the estate at the time of the Permanent Settlement, it would be a part of the estate. Section 4 of Regulation XXV of 1802 enabled the Government to exclude from the said assets certain items. Under the relevant part of the said Section, the Government was empowered to exclude from the assets of the Zamindari at the time of the Permanent Settlement "lands exempt from the payment of public revenue and of all other lands paying only favourable quit rents". Besides these two categories of grants of lands, namely, lands exempt from payment of public revenue and lands paying only favourable quit rents, there was another category of lands which were granted subject to the payment of favourable quit rents and also subject to the performance of certain services. The said services might be public or private services, i.e., services to the community or services to the grantor. The third category of land was the subject matter of decision in Mahaboob Sarafarajawant Sri Raja Parthasarathy Appa Rao Bahadur Zamindari Garu v. Secretary of State, ILR 38 Mad 620 [LQ/MadHC/1913/197] at p. 623: (AIR 1915 Mad 122 at p. 124). Where lands in a Zamindari were pre-settlement inams granted on condition of rendering personal service to the Zamindar and paying a favourable quit rent, the Madras High Court held that as the grant was for services purely personal to the Zamindar, prima facie the inams formed part of the assets of the Zamindari. The reason for this rule of presumption was stated by Sankaran Nair, J., thus:

"According to these cases, therefore, when lands were held on condition that the holders were to render certain services which were purely personal to the Zamindar and in which the Government were not interested, i.e., when such services had nothing to do with police or magisterial duties, or did not concern the community or the villagers, then the Government were entitled to include in the Zamindari assets for settling the peshkash the income from the lands allowed in lieu of such services which were not allowed for in the settlement : there is, therefore, no presumption they did not do so or treated the land as free from payment-."

If the services were purely personal to the Zamindar, there was no reason why the Government would not have included the land in the assets of the Zamindari for the purpose of fixing the peshkash. The same result was arrived at by a different process. Under S. 4 of Regulation XXV of 1802, lands paying only favourable quit rents might be excluded from the assets of the Zamindari. If the grantee paid part of the assessment in cash and part in the shape of personal services to the Zamindar, it cannot be said that he held the lands paying only favourable quit rent to the Zamindar. This aspect was brought out with clarity by Venkatasubba Rao, J., in Secretary of State v. Rajah Vasireddy, AIR 1929 Mad 676 [LQ/MadHC/1929/34] (682). Therein, the learned Judge said this:

"In the case of personal service inams, was there any reason at the time of the permanent settlement for treating them as "lands exempt from the payment of public revenue" The Zamindar was receiving income from such lands, though not of course in the shape of cash-rent but in the shape of services; for the rendering of services was one mode of paying the rent. It was reasonable, therefore, to treat them at the settlement as revenue paying lands."

9. The legal position may, therefore, be put thus : Under S. 4 of Regulation XXV of 1802 the Government was empowered to exclude income from lakhiraj lands, i. e., lands exempt from payment of public revenue and of all lands paying only favourable quit rents, from the assets of the Zamindari at the time of the permanent settlement. If the lands fall squarely within the said two categories, there is a presumption that they were excluded from the assets of the Zamindari. But if the grant of land was subject to performance of personal services to the Zamindar or subject to the payment of favourable rents and also performance of personal service to the Zamindar, there is no such presumption. Indeed, the presumption is that in such a case the income from the land was excluded from the assets of the Zamindari. The reason for the rule is that in one case the personal services are equated with the full assessment and in the other the favourable rent together with the personal services is equated with full assessment. If the Zamindar in one shape or another was getting the full assessment on the lands, there was no reason why the Government would have foregone its revenue by excluding such lands from the assets of the Zamindari.

(10 to 19) * * * *

(After considering the documentary evidence. their Lordships proceeded):-

10. The following facts emerge from a consideration of the documentary evidence. The grant was a pre-settlement grant. The land was granted to the Vantarlu subject to the payment of favourable rent and also subject to the performance of personal services to the Zamindar. The Government, either before the permanent settlement or subsequent thereto, never claimed a right to resume the same. Indeed, it was the Zamindar who was giving remissions to the Vantarlu whenever their services were not required. There is a presumption that such a land was excluded from the assets of the Zamindari and the evidence adduced in the case not only does not rebut that presumption but also, to some extent, supports it. We, therefore, agree with the Division Bench of the High Court holding that the Vantari Muttah of the appellants was part of the Jaggampeta estate and was, therefore, covered by the notification issued by the Government under the Estates Abolition Act, 1948.

11. In the result, the appeal fails and is dismissed with costs of the first respondent.

12. Appeal dismissed.