1. The question for our determination is whether the period of limitation applicable to these suits, which have been brought to recover amounts alleged to have been illegally collected by Government from the plaintiffs as water-cess on their lands, is one year from the date of payment under Article 16 of the First Schedule of the Limitation Act or six months from the date of the distraint of the plaintiff's paddy crop under Section 59 of the Madras Revenue Recovery Act (II of 64).
2. It is conceded on either side that if the former period applies, the suits are in time, after giving the plaintiffs credit for the time required under Section 80, C.P.C. to give notice of suit to the Government, as allowed by Section 15(2) of the Limitation Act, but that if the latter period of limitation is applicable, the suits are out of time. Under Section 2 of the Madras Irrigation Cess Act (VII of 1865) arrears of watercess are made recoverable in the same manner as arrears of land revenue. Section 59 of Act II of 1864 gives a right to persons deeming themselves aggrieved by any proceedings under that Act to apply to the civil Courts for redress within 6 months of the cause of action arising.
3. In the plaints it is stated that the imposition and collection of penal water rate was unauthorised and illegal, and the relief claimed is the refund of the amount thus illegally collected and paid under protest together with interest, the cause of action being given as the communication on June 24th, I920, (five days, before the institution of the suit) of the Collector's order of May 28th, 1920 in the village of Visalur, where the amount was collected on April 30th, 1919.
4. The nature of the suit thus falls exactly under the description in column 1 of the First Schedule of the Limitation Act, Article 16(suit) 'Against Government to recover money paid under protest in satisfaction of a claim made by the revenue authorities on account of arrears of revenue or on account of demands recoverable as such arrears.' The only doubt is whether the fact that the plaintiff's crops were distrained in order to enforce payment of the demand (alleged to be unjustifiable) operates to introduce Section 59 of Act II of 1864 by reason of Section 29(b) of the Limitation Act and so shorten the period of limitation. The fact that the plaintiffs do not even mention in their plaints the attachment of their crops clearly shows that they do not deem themselves aggrieved by that. It is not their case that the collection of watercess from them was intra vires but irregular. They maintain that it was altogether ultra vires as they were not at all liable to pay the cess because they have an immemorial vested right to the water.
5. The distinction between proceedings for the collection of revenue which are taken professedly under the Act but amount to an illegal or irregular exercise of jurisdiction, by which a party is aggrieved, and proceedings which are wholly without jurisdiction owing to the party against whom they are taken not being a defaulter was first made by a Full Bench in Venkata v. Chengadu I.L.R. (1888) M. 168, and the distinction has been since observed in Iswara Patter v. Karuppan (1893) 3 M.L.J. 255 and in Raman Naidu V. Bhassori Sanyasi I.L.R.(1903) Mad ., Vadlur Chinna Nagi Reddy v. Devineni Venkataramiah (1917) 7 L.W. 468 and in Bhanireddivenkan Doragam v. The Secretary of State (1918) 48 I.C. 844.In Secretary of State v. Simhadri Jaghathiraju Bahadur 28 M.L.J. 51 quoted by the Subordinate Judge and in Suryaprakasa Rao v. Secretary of State for India : (1903)13MLJ380 this particular point was not raised and discussed.
6. In Ravula Vengala Reddi v. Secretary of State (1912) 15, I.C. 328 in Ravula Nagamma v. Secretary of State (1913) M.W.N. 75 and in Secretary of State v. Renganayakamma 12 L.W. 334 , where the suits were for the recovery of cess alleged to have been illegally levied, the one year's period of limitation under Article 16 was held to govern them, Section 59 of Act II of 1864 being confined in operation to the particular class of cases to which that section is directly applicable, namely, to the cases of persons being aggrieved by illegal or irregular proceedings taken for the collection of revenue under the provisions of Act It of 1864 according to the principles laid down in Srinivasa Aiyangar v. Secretary of State I.L.R. (1912) Mad. 92. The learned Subordinate Judge was therefore right in his view that Article 16 of the limitation Act, which gives one year from the date of payment, governs these suits, and the C.M. As. are dismissed with costs.