1. The dispute in this appeal relates to Jodi Kittane village which is said to contain 28 virtues owned by 51 sharers. Defendant 1 is the holder of 1 1/2 virtues in the said village. The plaintiff in the suit, from which this appeal arises, claims to have purchased the entire jodi village in an auction sale held by Government for arrears of revenue due on the holding for the year 1933-34. The suit was filed for possession of items 1 to 9 of the suit schedule properties which are alleged to be in the possession and enjoyment at defendant 1. Defendant 1 had, prior to the revenue sale, granted items 2 to 9 to defendant 2 on a permanent lease. The plaintiff has alternatively claimed a decree for all the rights of defendant 1 in items 2 to 9 in addition to actual possession of item 1. An additional claim for mesne profits is also laid in the suit. The plea of defendant 1 is, in main, that the suit properties belonged to her permanent kadim tenancy rights and the plaintiff who has only purchased the jodidar's rights is not entitled to possession of the suit items. The trial court held that the plaintiff is only entitled to recover kandayam due to the jodidars from items 1 to 9 and disallowed the rest of the claim. On appeal, the learned District Judge decreed the plaintiff's suit granting the alternative claim for possession of item 1 and for the rights of defendant 1 against defendant 2. The legal representatives of defendant l since deceased, have preferred this appeal against that decision.
2. Sri Lakshminarayana Rao, the learned Counsel on behalf of the appellant, raised two contentions namely, that the revenue sale did not have the effect of transferring the rights of defendant 1 in the jodi village and even it admitting, but not conceding, that the entire jodi village was sold, the sale did not affect the right to possession of items 1 to 9 which belonged to defendant 1 as the permanent or kadim tenant thereof. The argument in respect of the first contention is based on exhibit C the order of forfeiture, wherein a mention is made of two persons as the defaulters and in consequence, the sale in pursuance of forfeiture must be deemed to be the right, title and interest of only the defaulters named therein. It is difficult to accede to this argument. In the written statement, defendant 1 has admitted that what is sold is the right to collect the jodi of the entire village, nor could exhibit C be interpreted as the sale confined only to the shares of the defaulters named therein. It is not shown that all the 51 sharers in the village have been registered as 'occupants'.
3. Section 54, Land Revenue Code, provided that arrears of land revenue is a paramount charge on the holding and every part thereof and empowers the Deputy Commissioner to forfeit the occupancy or holding and sell the same free from all tenures, rights and encumbrances created by the occupant or his predecessor-in-title. The section also stated that all the rights created by any occupant or his predecessor-in-title shall become liable 'unless the Deputy Commissioner otherwise directs'. Whether the sale and forfeiture is confined to the shares of the persons named in exhibit C, has to be determined by the examination of the history of the sale proceedings. Exhibit A is the notice of demand Issued to Seshadri lyengar and Lingappa. Exhibits I and II are similar notices, to the Apex Bank at Hassan and Bangalore respectively. Exhibit B is the attachment list dated 11-3-1934 giving the estimated value of the village to be Rs. 30,000/-. In Exhibit C, the entire village has been forfeited. In col. 7 of exhibit D the properties forfeited are described as the 'entire village' and the extent and assessment stated therein accord with the actual figures of the full holding; so also in exhibit E, the proclamation of sale published in the Gazette. In exhibits C and D the names or defaulters are mentioned as Seshadri Keshava lyengar and Lingappa. Exhibits E and P name the defaulters as Jodidars Seshadri Keshava lyengar and others. In exhibit B, the attachment list, the khatedar's name is stated to be 'Sri Rameswam Deity', Lingappa, Seshadri Keshava Iyengar and others': In Exhibit F, the document relating to the confirmation of sale, the name of khatedar is stated to be 'Lingappa and others'. Exhibit H is the confirmation of sale which puts down the khatedars as Lingappa and others; exhibit J the sale certificate, and exhibit L, the delivery receipt, also indicate that the entire village was dealt with. It is not denied that defendant 1 was one of the defaulters in payment of the land revenue. Admittedly, the arrears for which the sale was held represented the entire revenue due to Government for the year 1933-34. The entire Jodi payable to Government by all the sharers amounts to about Rs. 300/- and it cannot, therefore, be said that the two persons are the defaulters in respect of Rs. 1300/-. Hence, the arrears did not relate to the shares of persons named in the documents. Clause (17) of Section 3, Land Revenue Code, describes the 'registered occupant' as a sole occupant or the eldest or principal of several joint occupants whose name is authorisedly entered in the Government, records; and an 'occupant' is described as a holder of land or, when there are more holders than one, the holder having the highest right in respect of any such land. Note 3 to Rule 9 under the 'Inam Rights' published in the Revenue Manual prescribes that subsequent alienees who derive their titles from the gifts made by the original holders of inams should not be entered in col. 15 of the said, register. It is not shown that defendant 1 is the registered occupant, nor is she the holder of a recognised share assessed separately. Seshadri lyengar and Lingappa are represented to be the Patel and shanubhogue respectively and they are thus the principal persons representing the jodi rights. The forfeiture and sale records entered in the name of the principal jodidars representing the entire village cannot be characterised as irregular. In the circumstances, we are of opinion that what is sold is the entire village represented by the principal jodidars.
4. On behalf of the appellant an important point was raised touching the effect of forfeiture and sale of a jodi village on the rights of kadim tenants. It was contended by the appellant that the rights of the kadim tenants are not affected. The contention is undoubtedly in consonance with the amendment to Section 54, Land Revenue Code, after 1928; but the moot point is about the rights, of the jodidar, if he happens to be a kadim tenant also. Reliance is placed upon the decision of this Court reported in -- '24 Mys LJ 39 (S.A. No. 354 of 1939-40) (A)'. Our attention is drawn to an observation by Nageswara Iyer J. -- 'at pages 47-48' that--
'In respect of lands in which the tenants hold kadim or permanent tenancies, the only right the inamdars have, is to collect the assessment thereon. They have no right to possession of lands and if according to the order of forfeiture, it was only the jodidars' rights that were forfeited, it would be going too far to contend that the permanent or kadim tenancy rights were also lost on account of the order of forfeiture'.
This observation is in relation to interpretation of Section 54 which governed the subject matter of the appeal which arose before the amendment of 1928. But the respondents on the other hand cited a more recent decision in -- 'R.A. No. 25 of 1947-48 (Mys) (B)' which is yet unreported wherein it is observed that--
'Even if a Jodidars can be said to have permanent tenancy rights in the lands of his jodi village, if he is the owner of the jodi village or in his vritti or share in the jodi village, in case he is only the owner of a vritti, the amendment does not state that any such rights of the Jodidars remain unaffected by the sale'.
There appears to be apparent conflict between the opinions expressed in the cases cited above. It is needless to say that a jodi village consists of jodidars and permanent tenants and it is not uncommon that a Jodidars could be a permanent tenant as well. The forfeiture and sale after the amendment of 1928 could not be 'so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings'. As the legal position is rendered doubtful, the point needs clarification in an appropriate case when the question may again arise for decision. In the view we have taken about the facts in this case, it is unnecessary for us to express an opinion whether the rights of the Jodidars as a kadim tenant also are forfeited and sold.
5. Tne next contention is that defendant 1 held the suit lands as a permanent tenant. On a perusal of the oral and documentary evidence adduced in the ease, we are of opinion that the contention remains unsubstantiated. The learned Counsel for the appellant rested his contention solely on exhibit IV, which is denominated as account No. 15 required to be maintained by jodidars. Khata No. 15 in exhibit IV refers to defendant 1. Exhibit IV contains the details of the lands owned by the vrittidars and others. Khatas 1 to 35 relate to the vrittidars of several lands; kathas 35 to 66 to iht lands of kadim tenants and 66 to 193 are in the joint names of tenants and vrittidars. D.W. 1 who was the shanubhogue of the neighbouring village states that the suit lands were vritti lands of Lakshmidevamma. This witness who prepared exhibit B maintains that under the column 'Khatedar' he mentioned Sri Rameswara Devaru Lingappiah and Seshadri Iyengar and 'others'; the expression 'others' was added as there were many other jodidars for Kittane village. D.W. 2 one of the jodidars of Kittane village possessing 13/16ths share, explaining the entries in exhibit IV, states that the lands described in exhibit IV (a) belong to his vritti for which no kandayam is levied. The kandayam due and payable refer only to such lands which are not specifically described as rent free. He is paying a jodi of Rs. 11-7-0 and cesses to Government on the lands belonging to his vritti; but states that Rs. 11-7-0 does not represent kandayam of all the lands. On a proper calculation he had to pay about Rs. 36/- and the difference was being recovered from the ryots.
6. Exhibit VVV is a sale deed by one other Jodidars whose khata is 24 in exhibit IV possessing 1 11/2 th vritti in the said Kittane village. In the sale deed of 1909 under reference, it is described as lands sold belonging to that vritti. Besides there are admissions by defendant 1 alone which are conclusive. Exhibit EE is a registered sale deed executed by defendant 1 relating to item No. 4 in exhibit IV wherein she described the land sold as one attached to her vritfi. Exhibit BBB is a hypothecation bond of 1901 of items 1 to 6 where the lands hypothecated are described as belonging to 1 1/2 virtues possessed by her. Ex. JJJ is a notice relating to item No. 5 in khata No. 15 in exhibit IV. Exhibit FFF is the copy of the plaint filed by defendant 1 in which the land in dispute is described as belonging to her vritti of Jodi Kittane village. Exhibit 'PP' is a document or mortgage by defendant 1 in which she describes the mortgaged property being connected with her 1 1/2 virtues as entered in the Suit Rent Register of Kittane village. Similar references are not wanting in various other documents, but it is not necessary to pursue further to conclude that the schedule lands are comprised in the vritti of defendant 1.
7. Yet another circumstance which supports the conclusion is that according to the revenue accounts, the total assessment of the village is Rs. 2297-12-0 and the jodi payable to Government is about Rs. 1300/-. The lands which are in the possession of tenants are assessed at about Rs. 1100/- and the remainder of about Rs. 300/- is proportionately distributed as the residuary liability of the sharers payable to Government. It is significant to note that in each of the kathas 1 to 35, an endorsement that the Jodidars had to pay the balance after deducting the amounts recovered from the ryots is made in respect of the amount for which the Jodidars is made responsible. The cumulative effect of these facts leads to the conclusion that the shares of lands of the Jodidars are registered in the name of either the Jodidars or the Jodidars and the tenant and the liability of the Jodidars to the proportionate jodi payable to Government as entered in exhibit 'IV does not indicate that the lands are assessed as if it were permanent holdings. It is argued for defendant, 1 that exhibit 'IV is an account indicating the persons in possession of the respective lands which conclusively establishes that the jodidars were in the possession of the lands as occupancy tenants. It is further maintained that exhibit 'VIII', a sale-deed of 1377, shows that defendant 1 purchased the occupancy rights of item 2 of the schedule. There is no indication in the said document that, the occupancy right was purchased; but, on the other hand, it is apparent that the land belonging to one vrittidar is transferred to another vrittidar which merely goes to augment the share of the purchaser. Exhibit 'XXII is a delivery receipt of 1900 relating to some items in the schedule. Prom the arguments it is understood that in the dispute between defendant 1 and her mother-in-law, defendant 1 got delivery of some properties. What could be gathered from exhibit 'XII' is that probably in a family dispute, in relation to the property belonging to the same vritti, defendant 1 got delivery of the properties. The receipts produced for the payment of a sum of Rs. 13-10-10 by defendant 1 towards the jodi does not carry any further to support the theory that the lands belong to kadim tenancy. Further, in order to establish kadim or permanent tenancy the right ill question ought to have been granted by one or other of the jodidars. It is not shown from whom defendant 1 derived her right as kadim tenant and the jodi according to her is paid direct to Government as evidenced by exhibit 'XXIX' and not any of the jodidars. On a consideration of the oral and documentary evidence, we are of opinion that defendant 1 has failed to establish that the suit schedule lands belong to her permanent occupancy or kadim tenancy and it followed therefore that defendant 1 cannot resist the title of the plaintiff who has purchased all the rights of the jodidars free from all tenures except those of the permanent tenants. Since defendant 1 has created the permanent lease in favour of defendant 2 before the sale in favour of the plaintiff, the plaintiff is not entitled to actual possession of items 2 to 9. The decision arrived at by the learned District Judge is correct and should be upheld.
8. The appeal therefore fails. But, in the circumstances of the case, we direct that each party will bear his or her own costs throughout.
9. Appeal dismissed.