Patanjali Sastri, J.
1. The appellant is the proprietor of the zamindari of Venkatagiri, a permanently settled estate of considerable extent in the district of Nellore. Within the estate are numerous parcels of land granted as inams before the permanent settlement for various pious and charitable purposes or as remuneration for village offices in the estate. The Provincial Government, respondent herein, purported to 'enfranchise' such of these inams as were annexed to certain classes of village offices in the estate and impose quit-rents thereon payable to Government, claiming to be entitled to do so under the provisions of the Madras Proprietary Estates' Village-Service Act, 1894 (hereinafter referred to as the Act). Though the enfranchisement was 'cancelled' subsequently, the appellant, alleging that such ' ancellation ' was ultra vires, brought the suit in which this appeal arises against the Government for a declaration that he is entitled to have the peishcush or permanent assessment of the zamindari reduced in the manner provided for in Sub-section (3) of Section 27 of the Act. He also prayed for certain consequential reliefs which by subsequent amendment of the plaint were omitted for reasons to which reference will be made later.
2. The right of resuming or assessing to public revenue the inam lands in the estate which were granted before the permanent settlement has been a bone of contention between the parties for over a century, but it is not necessary for the purposes of this appeal to trace the antecedent history of the disputes further back than 1910 when the appellant's grandfather instituted a suit (O.S. No. 10 of 1910), in the District Court of Nellore for a declaration that he and not the Government was entitled to resume all inams situated within his zamindari whether held rent-free (lakhiraj) or on favourable rent, and for an injunction restraining the Government from dealing with them under the inam rules or otherwise. He claimed that under the permanent settlement concluded by the Government of the East India Company in 1802 with the then Zamindar the terms of which were embodied in a sannad-i-nilkeut istimrar dated 24th August, 1802, the Government granted all the lands in the zamindari reserving only lands appropriated to the support of the Police Establishment besides the three heads of revenue, salt, sayer and spirituous liquors, but without any reservation of other lakhiraj lands and lands held on favourable rents such as was contemplated in Section 4 of the Permanent Settlement Regulation (XXV of 1802). On the other hand, the Government contended that the provisions of the regulations were applicable to the permanent settlement of all zamindaries including Venkatagiri, that all lakhiraj lands as well as lands held on favourable quit-rents must accordingly be deemed to have been excluded from the assets on which the permanent assessment was fixed with the result that the right of resuming such lands vested in the Government and. that, in particular, the Government had, by virtue of the statutory power conferred by the Act, the right to enfranchise, by the imposition of quit-rent, the inams attached to those village offices in the appellant's estate to which that Act had been made applicable. On the general issue, the trial Court held that the Government did not reserve to itself the right to resume lakhiraj lands and lands bearing favourable quit-rents at the time of the permanent settlement of the Venkatagiri zamindari and was not entitled, either under the terms of the sannad or by virtue of Regulation XXV of 1802, to resume such lands, and that the Zamindar alone was entitled to the reversion of all such lands and had the right to resume or assess them to revenue. With reference to the special ground of claim put forward by the Government in respect of village-service inams, which was the subject of issue 17, the learned District Judge noted that the Zamindar did not press the contention raised in that issue and held that 'the plaintiff is disentitled in consequence of the provisions of Act II of 1894, to object to the enfranchisement of village-service inam.' Accordingly he made a decree dated 30th September, 1912, declaring that the Government was 'not entitled to resume or assess to public revenue inams or lakhiraj lands (other than village-service inams enfranchised by Government under the provisions of Act II of 1894) within the Venkatagiri zamindari or to any reversionary right in such inams,' and permanently restraining the Government and its officers from dealing with such inams under the inam rules. The Zamindar did not prefer any appeal in respect of the village-service inams but the Government, after unsuccessfully appealing to this Court, carried the matter to the Privy Council. In the meantime, acting on the decision of the trial Court which was thus allowed to become final so far as it related to the village-service inams in the estate, the Government proceeded to implement the policy underlying the Act by enfranchising such inams and substituting salaries for the village establishments, and issued notifications under Section 17 of the Act directing that the enfranchisement should take effect in the different groups of villages mentioned therein on the various specified dates during the years 1914 and 1915 On 15th July, 1921, the Privy Council rejected the appeal.
3. As their Lordships' judgment reported in Secretary of State v. Rajah of Venkatagiri (1921) 41 M.L.J. 624 : L.R. 48 IndAp 415 : I.L.R. 44 Mad. 864 forms the principal foundation for the contentions of the parties in these proceedings, it is necessary to refer briefly to the conclusions recorded in that judgment. Their Lordships pointed out that at the time of the permanent settlement of proprietary estates in this Presidency two distinct policies were pursued, one with regard to the powerful zamindars who maintained large armies with whom settlement was essential on a separate basis; the other a measure of general assessment in accordance with the provisions of Regulation XXV of 1802. In the case of 'the four western zamindars,' viz., Venkatagiri, Kalahasti, Bomrauzepalam and Sidapore which were held on condition of rendering military service to the ruling power, the settlement was effected 'independently of the provisions of Regulation XXV of 1802 'by fixing' a definite specific assessment on the whole zamindari irrespective of the particular assets derived from each particular unit of property.' For Venkatagiri, the permanent assessment, viz., 1,11,058 star pagodas, was arrived at by adding to the 'established peishkush 'of 21,673 star pagodas, which the Zamindar had been paying as a tribute to the Nawab of Arcot and which, by the treaties of 1792 and 1801 made between the East India Company and the Nawab, became payable to the company, the commuted value of the military service (of which the Zamindar was relieved), viz., 98,327 star pagodas, and deducting 8,942 star pagodas for the loss of revenue arising from sayer, salt and spirituous liquors, which the company's Government reserved to itself. Their Lordships laid stress on the absence in the sannad granted to the Zamindar, of any reference to the lakhiraj lands within the zamindari, the only reservations being those contained in Clause 5, and held that Section 4 of the Regulation had no application to the zamindari, and that 'both the assessment and the sannad were outside the Regulation.' Their Lordships concluded by observing that 'the jama was assessed on the whole estate inclusive of the lakhiraj and inam lands.'
4. It will thus be seen that the decision proceeded on broad grounds of the principles and policy on which the permanent settlement of the 'four western zamindaries' including Venkatagiri was effected and on the interpretation of the sannad issued to the Zamindar--grounds that are equally applicable to the village-service inams situated within the zamindari, although these inams did not form part of the subject matter of the appeal before their Lordships which was concerned only with other classes of inams in the estate. This is accepted by both parties in these proceedings and it is, accordingly, common ground that village-service inams were also included in the estate granted to the Zamindar under the sannad, and that, in consequence of such inclusion, the reversionary right in such inams was vested in the Zamindar and not in the Government.
5. As a result of the decision, the Government reconsidered its position vis a vis the village-service inams in the Venkatagiri zamindari and, taking the view that no enfranchisement of such inams was legally possible as the right &f; reversion in respect of them was held to be in the Zamindar, the Government issued an order (G.O. No. 875 dated 12th June, 1925), directing the 'cancellation' of the enfranchisement of such inams. By the same order it was also proposed that the Government should maintain only such village officers in the estate as were necessary for purposes of general administration and for magisterial, police and revenue work, leaving it to the Zamindar either to make his own arrangements for carrying on the work of his estate or, if he preferred to employ the same village establishment, to contribute the extra cost involved in maintaining the additional establishment that would be necessary to carry on the proprietor's work as well. The Zamindar to whom the proposals were communicated protested against the proposed changes. He urged that the Government having gone far in giving effect to the policy underlying the Act by actually enfranchising the village-service inams in the estate, abolishing the system of collecting meras and resumes from the ryots for payment to the village officers as additional remuneration and substituting fixed salaries, a reverter to the old system would be fraught with serious consequences. He accordingly requested that the re-organised system of village service which had been introduced under the Act should be continued. The Government, however, paid no heed to this request and carried out their proposals by purporting to 'cancel' the enfranchisement of the village-service inams and the previous notifications relating thereto and by framing revised rules under the Act whereby village officers were not required to perform the services which they had theretofore been rendering; to the proprietor. This led to fresh litigation between the parties.
6. The Zamindar took up the position that the decision of the Privy Council in no way affected the statutory power of the Government under the Act to enfranchise village-service inams in proprietary estates even where such inams were included in the estates at the time of their permanent settlement and that the unreversed decision of the trial Court in the previous litigation regarding the right of the Government under the Act to enfranchise village-service inams in the Venkatagiri zamindari was binding on both the parties and precluded the Government from re-opening that question. He accordingly brought the suit O.S. No. 6 of 1934, in the Court of the Subordinate Judge of Nellore for a declaration that the acts, proceedings and notifications of the Government purporting to cancel the enfranchisement of the village-service inams and promulgate the revised rules regarding village officers were ultra vires and illegal, and that he was entitled to a proportionate reduction of the permanent assessment under Section 27(3) of the Act in consequence of the Government having enfranchised the service inams included in his. estate at the permanent settlement. He also sought sundry other consequential reliefs to which it is unnecessary to refer in detail. The Government traversed the claim, maintaining that the action taken by it subsequent to the decision of the Privy Council was in accordance with and consequent on that decision, and that Section 27(3) of the Act had no application to the case. The suit, however, ended in a compromise which was recorded by the Court and a decree was passed in accordance therewith on 20th October, 1937. The Government was to assign-to the Zamindar 'whatever right, title or interest that the Government may possess in the village service inams in the Venkatagiri estate' mentioned in the plaint schedule, withdraw the special rules applicable to village establishments then in force in the Venkatagiri Zamindari and apply the general rules previously in force; the Zamindar was to pay every year a sum of Rs. 14,436-2-0 by way of an addition to the peishcush payable on the zamindari so long as the Government continued to maintain the village establishments in the estate, and, in the event of the Government ceasing to do so, to reassign to the Government whatever rights the Zamindar obtained by assignment under the compromise; liberty, however, was reserved to the Zamindar to claim by appropriate proceedings a reduction of the peishcush under Section 27(3), and to the Government to contest the claim if so advised. It is for an adjudication of the claim thus reserved that the present suit has been brought.
7. Briefly, the appellant's case is that, notwithstanding the inclusion of the village service inams in his estate at the permanent settlement thereof, the Government had the statutory right under Section 17 of the Act to enfranchise the said inams, and the Government having validly enfranchised the same and issued title deeds granting freehold rights in the properties to the inamdars, could not legally 'cancel' such enfranchisement as it purported to do in 1925. Such cancellation was therefore void and inoperative and left the enfranchisement of the inams in full force. The appellant, having thus been deprived of the reversionary rights in such inams which had been included in the assets on which the peishkush was fixed was entitled to the compensation by way of proportionate reduction of the peishcush provided for by Section 27(3) of the Act. The appellant maintained that although the decision of the Privy Council conclusively established that all pre-settlement inams were included in his zamindari at the time of its permanent settlement, it did not in any way affect the Government's statutory power under Section 17 of the Act to enfranchise the village-service inams in the estate. In any case, the Government, having sought and obtained a decision in its favour in the trial Court in O.S. No. 10 of 1910 as to the existence of such power was estopped from denying that it had such power.
8. On the other hand, the Government while admitting, in view of the Privy Council decision, that the right of reversion, in the village service inams in the Venkatagiri estate was in the Zamindar, averred that, for that very reason, the enfranchisement of such inams by the Government was ultra vires and illegal, and that its subsequent cancellation was therefore proper and valid. The right of reversion in respect of these inams always remained vested in the appellant or, at any rate, became revested in him in consequence of the compromise decree in O.S. No. 6 of 1934, and he was not entitled to any reduction of the permanent assessment payable on his zamindari. In any case, Section 27(3) of the Act on which the appellant based his claim was not applicable to the case as the peishcush was fixed at the permanent settlement without reference to the assets of the zamindari. The Government also pleaded that the suit was barred by limitation as well as by the proviso to Section 42 of the Specific Relief Act, as the appellant, being able to seek further relief than a mere declaration of right, omitted to do so. Sundry objections as to the valuation of the suit and the court-fee paid thereon were also-raised. It will thus be seen that the material facts are not in dispute, and the questions that fall to be decided are questions of law and interpretation.
9. The learned Subordinate Judge overruled the preliminary pleas put forward in bar of the suit. On the merits he held : (a) that the Government had power under Section 17 of the Act to enfranchise the village service inams in the Venkatagiri zamindari, although such inams were not reserved by the Government at the permanent settlement, (b) that the Government was precluded from contending that they had no such power by reason of having successfully pleaded in O.S. No. 10 of 1910 that they had such power, (c) that the Government had no right to cancel the enfranchisement thus validly effected, and (d) that the compromise decree in O.S. No. 6 of 1934 did not have the effect of nullifying the enfranchisement or of precluding the appellant from contending that the Government had power under Section 17 to enfranchise the inams. The learned Judge, however, upheld the respondent's contention that Section 27(3) on which the appellant's whole claim in the suit was based was not applicable to the case, as the peishcush was fixed without reference to the assets of the zamindari and he accordingly dismissed the suit. All these points have been argued before us with ability and thoroughness by learned Counsel on both sides. It may be mentioned here that in view of the decision of the Privy Council both parties accepted the position (1) that the pre-settlement village service inams in the Venkatagiri zamindari were not reserved by the Government at the permanent settlement with the result that the right to resume such inams was vested in the Zamindar and (2) that the peishcush payable on the zamindari was fixed without reference to the income derived from the properties included in the estate, or in the words of their Lordships, 'irrespective of the particular assets derived from each particular unit of property within the estate.' The argument before us proceeded on that footing.
10. The main questions for consideration are whether the Government had the right under Section 17 of the Act to enfranchise the village service inams in the appellant's zamindari notwithstanding that the right of resumption in respect of them was vested in the Zamindar, and, if so, whether the appellant is entitled, by way of compensation for the loss of such right, to a proportionate reduction of the permanent assessment in the manner provided for in Sub-section (3) of Section 27. It must now be taken as settled that village service inams, which formed part of the emoluments of village officers charged with the performance of certain public duties were excluded as a general rule from the assets of permanently settled estates either as lakhiraj lands or lands paying only a favourable quit rent as provided in Regulation XXV of 1802. See Secretary of State for India v. Raja Sobhanadri Appa Rao (1937) 2 M.L.J. 240 : L.R. 64 IndAp 227 : I.L.R. 1937 Mad. 862 . Although the right of resuming these inams was thus reserved by the Government, the appointment and control of these officers was left largely in the hands of proprietors, and this led to lack of discipline and efficiency among certain classes of village-officers. With a view to bring these officers under more efficient control, the Government decided, on the one hand, to subject their appointment by the proprietors to the approval and confirmation of the Revenue Officers of the Government, and, on the other, to substitute a system of payment by fixed salaries in lieu of remuneration by means of service tenure lands, which, being thus no longer required to provide such emoluments, the Government took power to enfranchise by imposition of quit rents. To give effect to this policy, the Act was passed as an enabling measure which the Government was empowered by notification to extend in whole or in part to any proprietary estate within the Presidency and to any of the specified classes of village-offices. The power of enfranchisement was conferred by Section 17 which, so far as material here reads thus:
If the remuneration of a village-office consists in whole or in part of lands or assignments of revenue payable in respect of lands, granted or continued in respect of or annexed to such village office by the State, the Government may enfranchise the said lands from the condition of service by the imposition of quit rent under the rules for the time being in force in respect of the enfranchisement of village service inams in villages not permanently settled or under such rules as the Government may lay down in this behalf; such enfranchisement shall take effect (from such date as the Government may notify):
* * * * * * *and provided, further, that any lands or emoluments derived from lands which may have been granted by the proprietor for the remuneration of village service and which are still so held or enjoyed may be resumed by the grantor or his representative.
The question is whether the village service inams in the Venkatagiri zamindari to which the Act has been extended were 'granted or continued in respect of or annexed to the village offices by the State.
11. The learned Government Pleader broadly contended that the Government had no authority to enfranchise lands held in service-tenure unless such lands had been reserved and excluded at the time of the permanent settlement as provided in Section 4 of Regulation XXV of 1802, the terms 'granted ' ' continued ' and ' annexed ' by the State implying that the tenure was held under the Government, so that it could resume the lands and terminate the tenure. In support of this contention he strongly relied on the decision of the Privy Council, in Secretary of State for India v. Raja Sobhanadri Appa Rao (1937) 2 M.L.J. 240 : L.R. 64 IndAp 227 : I.L.R. 1937 Mad. 862 already referred to. In that case the proprietors of certain permanently settled estates sued the Government to recover possession of service inams which the Government had purported to resume under Section 17 of the Act, and the question arose whether the lands had been granted or continued in respect of or annexed to the village offices there in question by the State. Some of the lands were totally exempt from the payment of revenue while others were subject to quit rents. This Court held that the former class must be regarded as having been excluded from the permanent settlement as lakhiraj lands and therefore ' continued ' in respect of the offices by the State within the meaning of Section 17, while the latter were held to fall outside the scope of the reservation under Section 4 of the Regulation as not being lands paying ' only ' favourable quit-rents as they were also subject to liability for service, and, therefore, also outside the scope of Section 17. On appeal, their Lordships held that the reservation under Section 4 of the Regulation extended also to service inams paying quit rents to Government as the word ' only ' was not meant to exclude liability to service, and that accordingly these inams must also be treated as ' continued ' by the State and so enfranchisable by the Government. The importance of the decision for the purposes of the present case lies in the fact that both this Court and the Judicial Committee made reservation by the Government at the time of the permanent settlement the test of the inam having been ' continued ' by the State. In other words the Government's right to enfranchise village-service inams was considered to rest on their exclusion from the assets of the zamindari at the settlement. Their Lordships observed that the framers of Section 17 must have contemplated that continuance would be proved by reference to the provisions of Section 4 of the Permanent Settlement Regulation ' on which so much is found to turn ' and that the word ' continued ' was probably taken from that section ' so that, assuming lands paying only favourable quit rents to be included in the reservation in Section 4 of the Regulation, their Lordships are of opinion that continuance by the State has been proved in these cases. Whether they are so excluded from the Permanent Settlement is the important question.' Reservation at the time of the Permanent Settlement was similarly regarded as the test of liability to enfranchisement under Section 17 in Secretary of State v. Sri Raja Vasi Reddi (1929) 30 L.W. 129 where Venkatasubba Rao, J., after referring to Section 4 of the Regulation observed:
Thus from the exclusion springs the right of the Government either to continue or abolish, for, if these various articles were included in the Zamindari, what right could the Government thereafter exercise in respect of them ?
These decisions would seem to support the contention of the Government Pleader.
12. The learned Advocate-General appearing for the appellant drew attention to the observation at page 871 in Secretary of State for India v. Raja Sobhanadri Appa Rao (1937) 2 M.L.J. 240 : L.R. 64 IndAp 227 : I.L.R. 1937 Mad. 862
As in all these cases the village servants as part of their remuneration had been assigned the revenue payable in respect of the lands forming part of their remuneration as well as the lands themselves, and as such assignments can only have been by the State, it might appear that all such assignments of revenue must have been made and continued by the State within the meaning of the section, and that it empowered the Government to enfranchise.
and he submitted that, on that view, the inams now in question should be held to fall within Section 17 as having been ' granted ' by the State. It seems to us, however, that the expressions 'granted' and 'annexed' by the State must be taken in the context not only as referring to the origin of the tenure, but as implying also the continuance of the tenure under the State at the time of enfranchisement. This view would be in harmony with the interpretation by their Lordships of the word 'continued' and would, by restricting the application of the section to inams reserved at the permanent settlement, avoid the anomaly of the Government dealing with property granted to the Zamindar; for it must be remembered, as pointed out by their Lordships, that 'enfranchisement consists in releasing the lands from service and renouncing the reversionary rights of the State and confirming the inam to the grantee his heirs and assigns to dispose of as they might think proper subject to the payment of a quit rent and also, in some cases of a pecuniary payment' (p. 869). How could the Government exercise such rights of property in lands forming part of the estate granted to the Zamindar under the permanent settlement as in the present case It was said that if the power of enfranchisement under Section 17 was intended to be restricted to inam lands reserved under the settlement, it would have been unnecessary to confer statutory power on the Government for the purpose, as the Government would have no difficulty, having the reversionary right in such inams, in enfranchising them. This argument overlooks that service inams are held on certain conditions of tenure, and the Government may well have thought that it was desirable, to avoid litigation, to take statutory power to enfranchise such inams without reference to the terms on which they were held, in order to give effect to their scheme of reorganization of village establishments in proprietary villages. It was also argued that the second proviso to the section which empowers the Zamindar to resume service inams granted by him or his predecessor having been construed in Secretary of State for India v. Raja Sobhanadri Appa Rao (1937) 2 M.L.J. 240 : L.R. 64 IndAp 227 : I.L.R. (1937) Mad. 862 . as being applicable only to post-settlement grants, the body of the section must be understood as authorizing the Government to enfranchise all pre-settlement inams whether reserved or not. Otherwise, it was said, no one would have the right to resume such inams where they were not reserved. The argument is fallacious. Where such inams were not reserved but included in the estate at the settlement, the right of the Zamindar to resume where resumption has become possible, does not rest on the proviso but on the grant evidenced by his sannad. On the other hand, the proviso shows that the Legislature did not intend to expropriate proprietors of the right of resumption vested in them. It was finally urged that, whereas Section 2 contemplated the application of the Act to ' any estate,' the construction suggested for the respondent would exclude from the purview of the Act Venkatagiri and other zamindaries similarly settled under special sannads and thus substantially defeat the object which the Legislature had in view. We see no force in this argument. The Act is an enabling one, and the scope of its application is to be determined by a notification issued by the Government extending the Act or 'any portion thereof' to any particular estate. In passing such an Act, the Legislature may well have contemplated the application of any of its provisions only where the necessary or appropriate conditions for the application of that provision were present-for instance in the case of Section 17 where the right to resume is vested in the Government. The general language of Section 2, cannot, therefore, be taken as authorising the application of the Act so as to involve expropriation of the proprietors of their reversionary rights in the service inams included in their estates.
13. In our opinion, Section 17 was designed to enable the Government to deal with inam lands held by the specified classes of village-officers only where such inams were subject to reservations at the permanent settlement which gave Government the right to resume and assess them, and, as it is common ground that the lands here in question were not so reserved, the Government had no power to enfranchise them under the section, with the result that the acts, proceedings and notifications of the Government purporting to enfranchise them were void and of no effect.
14. The question next arises whether the respondent is estopped by the judgment of the trial Court in O.S. No. 10 of 1910 from contending that the Government had no power under Section 17 of the Act to enfranchise service inams in the appellant's estate. As has been stated, that decision was based on the concession made by the appellant's grandfather so far as village-service inams were concerned, and there was no adjudication by the Court on the merits of the Government's claim based upon the Act. But as pointed out in Hoystead v. The Commissioner of Taxation I.L.R. (1926) A.C. 155. estoppel by judgment extends also to matters of admission fundamental to the decision. The question there was whether in an essessment to land-tax upon the estate left by a testator to his six children on the terms contained in his will, the assessees were entitled to six deductions of a certain sum as 'joint owners' of the estate or only to one deduction, and it was decided that they were entitled to six. The decision was based on a construction of the relevant provisions of the taxing statute relating to the assessment of 'joint owners,' it being admitted by the Commissioner of Taxation that the assessees were joint owners under their father's will. In the assessment for a subsequent year, however, the Commissioner sought to limit the deductions to one, contending that his admission in the previous proceeding that the assessees were 'joint owners' of the testator's estate was erroneous in law. Their Lordships held, reversing the decision of the High Court of Australia, that the Commissioner was estopped by the judgment in the previous assessment proceeding. Lord Shaw, delivering the judgment of the Board, observed :
In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted.
In regard to the service inams which the Government purported to enfranchise under colour of the Act, the learned District Judge held that the then Zamindar was 'disentitled in consequence of the provisions of Act II of 1894 to object to the enfranchisement of village-service inams.' That was the judicial answer to the Zamindar's objection raised in issue 17 in that suit, though the answer was given in consequence of the Zamindar 'not now pressing the contention raised ' in that issue. We consider that the respondent having claimed the right under the Act to enfranchise the village-service inams in the appellant's estate irrespective of their reservation and obtained judgment upholding the right, albeit on the admission of the appellant's predecessor, is estopped from contending that the Government had no such right.
15. There are, however, limits to the operation of the estoppel. If, for instance, the appellant had sued for compensation for loss of his reversionary right in the inams (assuming such a remedy to be open to the appellant in the circumstances of the case, as to which we express no opinion) the Government would undoubtedly be precluded from withdrawing from the position which it successfully maintained in the former suit. But the estoppel does not, in our opinion extend so as to prevent the respondent from placing before the Court what should be the proper construction of Section 17, in so far as such construction is found to have a bearing on the true meaning and effect of Section 27(3) on which the appellant has founded his whole claim to relief in this suit. It was for that reason that we have considered and expressed our opinion on the merits of the difference between the parties in regard to the construction of Section 17. This brings us to the consideration of the most important question in the appeal, viz., whether Section 27(3) is applicable to the case.
16. Section 27(so far as material) runs thus:
on or after the date notified under provisions of this chapter--
(1) if in any estate the cost of village establishments was provided for by a reduction of the permanent assessment on the condition that the amount of such reduction should be devoted to paying the village establishments, it shall be lawful for the Government to require the proprietor to pay, along with the present permanent assessment such sum, not exceeding the amount of such reduction as represents the annual remuneration at the time of such reduction of the classes of village officers-brought within the scope of this Act;
(2) Where the said cost of village establishments was provided for by a deduction from the assets of an estate before its permanent assessment was fixed, it shall be lawful for the Government to require the proprietor to pay, along with the present permanent assessment, a sum equal to that by which it would have been increased had no such deduction been made on account of the remuneration of the classes of village officers brought within the scope of this Act; in either of the cases referred to in Sub-sections (1) and (2) the proprietor shall no longer be liable for the payment of such classes of village officers;
(3) where the cost of maintaining any office to which this Act has been extended under Section 2, and which is in existence in an estate at the date upon which this Act is extended thereto was included in the assets upon which the permanent assessment of the estate was fixed, the said permanent assessment shall be reduced to the amount at which it would have been fixed had no such inclusion in the assets taken place.
Sub-section (3) is by no means a model of perspicuity in draftsmanship, but we do not share the difficulty felt by the learned Subordinate Judge in accepting the appellant's interpretation of the 'cost of maintaining any office 'being' included in the assets 'on which the peishcush was fixed. If the full annual rental value of a parcel of land appropriated as emoluments of an office was taken into account for the purpose of increasing the peishcush payable on the estate the cost of maintaining that office could well be said to have been 'included in the assets' upon which the permanent assessment was fixed. The difficulty, however, in the way of accepting the appellant's contention lies deeper.
17. The section is manifestly designed to provide for a readjustment of the pecuniary obligations of the Government and the proprietor consequent on the scheme of reorganization of village establishments in proprietary estates under which the Government assumed the responsibility of paying fixed salaries to certain village officers out of the provincial funds, relieving the proprietors of liability in that behalf. The first two sub-sections present no difficulty; for they contemplate and provide for cases where the cost of village establishments was provided for at the time of the permanent settlement by allowing, in the one case, a reduction of the peishcush after it was arrived at on the basis of the assets included in the estate, and in the other, a deduction from such assets before fixing the assessment on the balance. In either case, the peishcush is to be proportionately increased, as the proprietor is no longer to be liable for remunerating the village-officers concerned. It is worthy of note that in neither of these cases does the enfranchisement of village service inams enter into the adjustment. Does it enter into the adjustment provided for in Sub-section (3) The learned Advocate-General suggested that the sub-section was specifically designed to provide compensation to the proprietor where service inams included in a zamindari at the permanent settlement were enfranchised by the Government in exercise of its statutory power under Section 17 and was thus complementary to the latter provision. Indeed, it was claimed that unless Section 17 is construed as authorizing the Government to enfranchise even inams which were included in the zamindari, there would be no case to which Sub-section (3) of Section 27 could be applied. We cannot agree. An obvious case for its application would be where contributions levied from the ryots for the remuneration of village-officers had been taken into account in fixing the peishcush at the time of the permanent settlement. As such collections are prohibited under Section 30 where the Act is brought into force, the Zamindar would be entitled to the reduction of the peishcush as provided for in Sub-section (3) of Section 27. We have already expressed our opinion that Section 17, on its true construction, does not empower the Government to enfranchise village-service inams which were not reserved at the permanent settlement. If so, it must follow that Section 27(3) was not intended to deal with expropriatory enfranchisement under Section 17.
18. Assuming however, that such enfranchisement is authorised by Section 17, we find it difficult to accept the view that Section 27(3) was intended to provide compensation in such a case. Why should a recurring reduction of the peishcush be allowed as compensation for loss of an asset of no practical value to the Zamindar? When the new scheme is introduced in a proprietary estate, the Government takesupon itself the responsibility of paying the village-officers in consideration of which it would, on the assumption made, get the quit-rents imposed on the enfranchised lands as an off-set against the new liability assumed by it. But how does the new scheme affect the proprietor's financial position He was under an obligation to maintain the village-establishment before the Act was extended to his estate. As the village-officers to whom the Act can be made applicable performed services of a public character, the proprietor could not resume the service tenure lands held by them. Their rental value never figured in his balance-sheet. No doubt the reversionary rights in the inams are rights of property. But they are rights of such shadowy character in the case of inams held by public officers whom the Zamindar was bound to maintain that it is difficult to suppose that the Legislature intended to provide for a recurring annual compensation for their loss which, such as it is, is incurred once for all when the Government enfranchises such inams. For all these reasons we are inclined to think that Section 27(3) was not intended to provide compensation for enfranchisement of service inams by the Government under Section 17.
19. There is a still serious difficulty in applying Section 27(3) to the present case. However anomalous may be the result, as indicated above, of applying Section 27(3) to inams included in the zamindari but enfranchised by the Government under Section 17(assuming such enfranchisement to be authorised by that provision) it must be admitted that the language of Section 27(3) is apt to cover a case where the inams were included in the assets in the sense that the rental value of the lands were taken into account for the purpose of increasing the peishcush. But where, as in the present case, the inams were included (according to both parties) only in the sense that they were made part of the assets on which the payment of the permanent assessment was secured, it seems impossible to apply that provision. Such a case does not fit into the pattern of adjustment provided for therein. Though the expression 'included in the assets upon which the permanent assessment of the estate was fixed 'might, if it stood alone, mean inclusion in either of the senses indicated above, reading it in the context of the whole sub-section, particularly with the sentence immediately following, we think that it can only mean inclusion in the sense first mentioned, that is to say, that the rental value of the inam was taken into account for the purpose of increasing the peishcush. As we have already pointed out, the permanent assessment of the Venkatagiri and kindred zamindaries was fixed, under their special sannads, without reference to the assets comprised in them, by simply adding to the 'established peishcush,' which was only a fixed tribute, the commuted value of the military service which those Zamindars had theretofore been, but were no longer to be, liable to render. We are of opinion that Section 27(3) cannot be applied to such special cases, even assuming, for the purpose of argument, that Section 17 authorised the Government to enfranchise service inams which were not reserved at the permanent settlement and that Section 27(3) was intended to provide for compensation generally for such expropriatory enfranchisements.
20. Reliance was placed on behalf of the appellant on an observation of Ramesam, J., in Secretary of State v. Sri Raja Vasi Reddi (1929) 30 L.W. 129. referred to already where the learned Judge, in repelling an argument based on Section 27(3) that village-service inams must be deemed to have been included even in estates settled under Regulation XXV of 1802, remarked that the provision might be explained with reference to the settlement of the Venkatagiri and kindred zamindaries under special sannads which did not follow the policy of the Regulation and included the village-officer's emoluments. It would be less than fair to the learned Judge to regard a remark of somewhat doubtful import made in passing as expressing his considered view on the point with which we have to deal.
21. There remains for consideration the question as to the effect of the compromise decree in O.S. No. 6 of 1934 on the points in controversy here. The learned Government Pleader claims that two results followed from that decree; first, that if there arose any estoppel from the judgment of the trial Court in O.S. No. 10 of 1910 as to the Government's power under the Act to enfranchise inams included in the Venkatagiri zamindari it was destroyed and the matter was set at large; and secondly, that, notwithstanding the reservation of liberty to the appellant to claim a reduction of peishcush under Section 27(3) the original enfranchisement by the Government was nullified and its subsequent cancellation in 1928, was affirmed, with the result that there is no basis left for the present suit.
22. We are unable to accept the first of these suggestions. Though the doctrine of res judicata is often treated as a branch of the law of estoppel, it is really founded on the public policy of putting an end to all litigation in regard to the same matter or, in the words of Lord Shaw in the case above referred to, 'of setting to rest rights of litigants,' and cannot be waived even by the consent of the parties. It was not therefore competent for the parties to agree by their compromise in O.S. No. 6 of 1934 that the judgment of the trial Court in O.S. No. 10 of 1910 should not operate as res judicata. Nor do we find in the terms of the compromise any indication that they intended to do so. There is, however, more force in the second contention. It will be seen from the material provisions of the compromise which we have already summarised that the parties agreed to restore the status quo, so far as the service inams were concerned, byproviding that whatever right, title or interest that the Government might possess in the village service inams which they had purported to enfranchise should be assigned to the Zamindar subject to a condition of re-assignment in case the Government ceased to maintain the village establishments in the zamindari. It is not suggested that this event has happened and re-assignment has been made. If the appellant has thus reacquired whatever right the Government affected to acquire in village service inams in the estate by the enfranchisement proceedings, it is difficult to see how any claim for a reduction of the permanent assessment could be founded on Section 27(3). If the appellant has sustained any loss or damage by reason of the Government's acts and proceedings or on account of any complications arising out of such acts and proceedings, the appellant may have a remedy against the Government under the ordinary law (as to which we express no opinion), but such loss or damage would afford no ground for the special form of relief by way of abatement of the annual peishcush provided for in Section 27(3). It was said that the provision in the compromise for an annual payment of Rs. 14,436-2-0 in addition to the peishcush practically nullified the effect of the assignment by the Government of their right, title or interest in the inams, as the said sum represented the total of the quit-rents which the Government had imposed on the lands at the time of their enfranchisement, so that the position was left substantially as it was before. The suggestion, however, overlooks that the Government undertook liability under the compromise to maintain the village officers in question on the basis of the old rules under which the officers performed various duties to the zamindar, and the Government was thus entitled to stipulate for a contribution from the Zamindar for the purpose. That the contribution happened to be fixed at the same amount as the total of the quit-rents imposed on the lands in respect of which the Government assigned their right, title and interest to the Zamindar under the compromise can make no difference to the legal effect of the transaction.
23. The preliminary pleas raised in bar of the suit can be disposed of in a few words. The learned Subordinate Judge has held that the suit was not barred by limitation, applying Article 131 of the Limitation Act. That article provides a period of twelve years for a suit to 'enforce a periodically recurring right' the period commencing from ' when the plaintiff is first refused the enjoyment of the right.' It is not disputed for the respondent that if that article is applicable to the case, the suit would be well within timer, but it is urged by the learned Government pleader that the article is not applicable as the appellant claims not a ' recurring ' right but a deduction which if allowed in this suit would once for all fix his liability at a reduced sum. He suggests that the residuary Article 120 is applicable to the case, and as the right to sue for a declaration accrued at least on 9th August, 1934, when the Government filed the written statement in O.S. No. 6 of 1934, denying the appellant's right to a reduction of the peishcush, the suit brought more than six years later, on 20th December, 1940, is barred. It is unnecessary to consider the applicability of Article 131 to the present case for, even if Article 120 is applied as suggested for the respondent, the suit would be in time. This Court has held in Sriman Madabushi Achamma v. Gopisetti Narayanaswami Naidu (1909) 19 M.L.J. 734 : I.L.R. 33 Mad. 171 that the right to sue for a declaration that a landlord is not entitled to collect an enhanced rent arises on each occasion when such rent is collected. The same principle must apply here. It is not denied that the Government has been collecting every year peishcush at the original rate without allowing the deduction claimed. In such circumstances there can be no bar of limitation.
24. As regards the maintainability of the suit for mere declaratory relief, it is to be observed that the plaint as originally filed prayed also for the appointment of a Commissioner for ascertaining the reduction allowable under Section 27(3) and for an injunction restraining the Government from collecting any sum in excess of the peishcush thus reduced. These prayers were, as stated already, subsequently deleted by amendment of the plaint. The prayer for appointment of a Commissioner is said to have been dropped in view of Section 33 of the Act and Section 58 of the Madras Revenue Recovery Act (II of 1864), the effect of which is to bar the jurisdiction of Civil Courts to decide any question regarding payment under Section 27 of the Act or land revenue payable to Government. The appellant contends that he was not thus in a position to seek further relief by way of ascertainment of the amount of reduction allowable to him under Section 27(3). Nor could he ask, before the peishcush was actually reduced, for any injunction to restrain the Government from collecting it at the usual rate. Furthermore, it was not necessary for the appellant to ask for an injunction against the Government as a declaration of the appellant's right by the Court was sure to be respected and carried out. We accept these contentions and hold that the suit is not barred under the proviso to Section 42 of the Specific Relief Act.
25. In the result, the appeal fails and is dismissed with costs.