Charles Arnold White, Kt., C.J.
1. The circumstances in which this appeal comes before us are set out in the judgment which has been written-by my learned brother Miller, J., which. I have had the advantage of reading, and it is not necessary for me to state them. The point for determination is - under the provisions of the Madras Hereditary Village Offices Act, 1895, is the jurisdiction of the Civil Courts excluded in a case in which he plaintiff sues to recover possession of land which he alleges is he emolument of is office of karnam, and the defendant resists he plaintiff's claim on the ground that the land is not the emolument of the office, but is the private property of the plaintiff which passed to the defendant in execution of a decree obtained by him against the plaintiff.?
2. The question turns upon the construction of Sections 13 and 21 of the Act. Section 21 excludes certain matters from the jurisdiction of the Civil Courts - amongst others, a claim to recover the emolument of the office of kurnarn (under Section 4 of the Act 'emoluments' includes lands). Beading the words 'emoluments of any such office' in Section 21 in their ordinary sense they would, as it seems to me, apply to a case, in which the plaintiff sues to recover lands which he alleges are the emoluments of his office, this being denied by the defendant. The plaintiff's sole-ground of action is that the lands sued for are the emoluments of his office, and it seems to me the claim is none the less a claim for the emoluments within the meaning of the section, because the defendant denies that the lands in question constitute the emoluments. The operation of the first paragraph of Section 21 is cut down in two ways. 1st, by a proviso to the whole section, and secondly by a proviso, or exception, to so much of the section as ousts the jurisdiction of the Civil Courts to decide a claim to recover the emoluments of any of the offices to which the section refers. The proviso to Section 21 saves the jurisdiction of the Civil Courts in one specified case i.e. a case where the appellate Revenue authority decides against the defendant's plea that a Revenue Court has no jurisdiction on the ground, that no emoluments appertain to the office. In such a case a Civil Court has jurisdiction to yet aside the decree of the appellate Revenue Authority on the ground, and only on the ground, that no emoluments appertain to the office.
3. The proviso, or exception, to so much of Section 21 as ousts the jurisdiction of the Civil Courts in the case of a claim to recover the emoluments of the office cuts down the operation of the section by a reference to proviso it to Sub-section (1) of Section 13. If the case falls within the terms of this proviso, the jurisdiction of the Civil Courts is preserved by the words of the proviso 'but such decision & c'. If the case does not fall within the terms of the proviso, the jurisdiction, as it seems to me, is ousted by Section 21. Proviso ii to Section 13 is in these terms : - 'When one of the facts in issue in a suit is whether the emolument of the office consist of land or of an assignment of revenue payable in respect of land, the Collector shall decide the claim on the assumption that only the said assignment constitutes the emoluments; but such decision shall not bar the right of the claimant to institute a suit in a Civil Court for recovery of the land itself.' The words 'such decision' mean a decision given on a suit in which one of the facts in issue is whether the emolument consist of land or of an assignment of revenue payable in respect of land. In the present suit this was not one of the facts in issue. The two issues were:
1. Did the lands in question constitute the emoluments?
2. Did the plaintiff hold the office of kurnam?
4. The District Judge was of opinion that although no issue was framed by the Original Court as to what the emoluments consisted of (by which I understand him to mean that no issue was framed as to whether the emoluments consisted of land or of an assignment of revenue) this point appears to have been considered by the Board of Revenue. Even if this were enough to satisfy the terms 'of the proviso there is nothing, as it seems to me, to show that the point was considered by the Board. The form of the Board's Resolution of 20th 'August 1901, suggests that it was not. The terms of the resolution to my mind, show beyond reasonable doubt, that the only questions which the Board considered were the questions raised in the formal issues. It appears to me that they did not decide the case on the assumption referred to in the 'proviso that the assignment as distinguished from the land itself constituted the emoluments, but on the ground that the plaintiff had made out his case as regard the lands. But they only gave him a decree with regards to the assignment because, in their view, it was not competent for them to do more. I am of opinion that there was no 'such decision' within the meaning of the proviso and that the saving clause to the proviso, which if the proviso applied, would have had the effect of preserving the jurisdiction of the Civil Courts, does not apply. It follows that the words in question in Section 21 are not qualified by the exception; and the jurisdiction of the Civil Courts is ousted.
5. On the other hand it seems to me that Section 13 expressly gives jurisdiction to the Collector. As I have pointed out, the case, in my opinion, does not fall within proviso ii to Sub-section (1) of Section 18, and the words at the end of the proviso preserving the jurisdiction of the Civil Courts, do not apply. The words 'emoluments of any such office' occur in Section 13 and Section 21, and I think they must be construed in both sections in the same way, i.e., as including a claim for lands which are alleged to constitute the emoluments of the office. Section 13 subject to the proviso, gives the Collector jurisdiction to decide such a claim whilst Section 21 subject to the exemption, takes away the jurisdiction of the Civil Courts.
6. I see no good reason for construing the word emoluments in Section 21, as it has been contended on behalf of the plaintiff they should be construed, as limited to emoluments when there is no dispute as to what constitutes the emoluments.
7. With great deference to Sir Subrahmania Aiyar, lam unable to agree with what I understand to be his view that because the emoluments which are claimed consist of lands the jurisdiction of the Civil Courts is not ousted.
8. I think the sections were rightly construed by Moore, J.
9. I would allow the appeal, set aside the order of the District Judge and restore the decree of the Munsif. In the special circumstances of this case, I think that each party should bear his own costs up to date.
10. The plaintiff's land was attached in execution of a decree for money against, him and, in spite of objection made by him on the ground that its attachment was prohibited by Section 5 of Act III of 1895 (Madras) the land being his karnam's service inam, was brought to sale and purchased by the defendant.
11. He then sued before the Collector for,, recovery of the land alleging that he was the karnam and the land the inam attached to that office. The Special Assistant Collector found that he was not the karnam and dismissed the suit on that ground. The District Collector on appeal, holding, it would seem, that there was a mistake, and finding that the land was admittedly service inam, would, so his Judgment suggests, have given the plaintiff a decree for the assessment payable on the land, but for the fact, that, in his view, the plaintiff had, himself, by contracting debts, in effect alienated the inam, and ought not to be allowed to recover it. The Board of Revenue on second appeal was unable to take this view and gave the plaintiff a decree for which the Act expressly forbids a plaintiff to ask, a declaration of his title to the assessment, [vide Section 13(I)(i).], leaving him to sue if so advised in a Civil Court, to recover possession, of the land. Plaintiff armed with this decree sued in the District Munsif's Court; the defendant denied that the land was service inam land alleging that it originally belonged to the plaintiff's family and had duly passed to him (defendant) by the Court sale. The District Munsif held that the Civil Court had no jurisdiction to entertain the claim and dismissed the suit on that ground; but the District Judge on appeal remanded it for disposal on the merits. On a second appeal to the Court the learned Judges differed in opinion, and the appeal was dismissed.
12. By Section 21 of the-Hereditary Village Offices Act, III of 1895, no Civil Court has authority to take into consideration or to decide any claim to succeed to any of the offices specified in Section 3 (of which that of karnam is one) or any question as to the rate or amount of the emoluments of any such office, or except as provided in proviso (ii) to Sub-section (1) of Section 13 any claim to recover the emoluments of any such office.
13. By Section 13(1), suits can be brought before the Collector for any of the village offices specified in Section 3 or for recovery of the emoluments attached to any such office, on the ground that the plaintiff is entitled (with reference to the law regulating the succession and appointment of such offices) to hold such office and enjoy such emoluments. And by the 2nd proviso to this sub-section when one of the facts in issue in a suit (before the Collector) is the question whether the emoluments of the office consist of land or of an assignment of revenue payable in respect of land, the Collector shall decide the claim on the assumption that only the said assignment constitutes the emoluments; but such decision shall not bar the right of the claimant to institute a suit in a Civil Court for recovery of the land itself.
14. The learned Judge whose decision prevailed in the second appeal has held, if I understand him aright, that the suit is not within Section 13(1) and is, therefore, not cognizable by a Collector's Court, and that it must in consequence be cognizable by the Civil Court. It may be granted that all suits not within the terms of Section 13(1) are cognizable by the Civil Courts, for though the words of Section 21 are wide enough to embrace all claims for emoluments, however grounded that section must be read (in my opinion) with Section 13 so as not to deprive a suitor of all remedy in cases not within the latter section.
15. But with very great respect for the learned Judge, I am unable to concur in his view that this suit is not within the provision of Section 13(i).
16. It must be remembered that the land in question was attached and sold in execution of a decree for the plaintiff's debt; the plaintiff does not deny the debt, nor does he seek to set aside the sale on any ground other than the inalienability of the land. He can therefore only succeed by showing (i) that he is the karnam of the village entitled as such to enjoy the emoluments and (ii) that the land for which he sues is the emolument of his office. These must be the grounds of his suit and these are the grounds of suit which give him his right of action before the Collector under Section 13(1).
17. Is then the present suit excluded from the cognizance of the Collector for the reason that the claim is for land? I think not. Emoluments may be lands (Section 4), and there is nothing in Section 21 to indicate that such emoluments were intended by the Legislature to be excluded from its operation; the answer to the question must depend upon the construction to be placed upon proviso is to Section 13(1).
18. That proviso recognizes the jurisdiction of the Civil Courts to entertain claims for the possession of land, and declares that the plaintiff's right to sue in such Courts shall not be barred by the Collector's decision in a case where he has to decide whether the land or the revenue forms the inma.
19. Section 21 takes away the jurisdiction of the Civil Courts in suits for emoluments, the case provided for in Section 13(1) para ii excepted, and one other case also excepted, that in which the defendant pleads before the Collector that his jurisdiction is ousted because no emoluments are attached to the office in respect of which the suit is brought (proviso to Section 21). In this case the Civil Court is empowered to set aside the decree of the Revenue Court.
20. Now if the Legislature had intended to save the jurisdiction of the Civil Court in a third case, that in which the plaintiff sues for land as being the emoluments of his office, it would have been very easy to declare that intention and to enact that the Collector should not decree ejectment in any case in which it was denied by the defendant that the land sued for appertained to the inam.
21. That is not the effect of the 2nd proviso to Section 13(1) which applies in terms only to the special case in which it is found or admitted that the inam is to be taken out of the land sued for, but plaintiff alleges and defendant denies that the kudivaram as well as the melvaram is a part of that inam.
22. It is not perhaps easy to discern the object of the Legislature in enacting the proviso in this way, but it may be that the emoluments being secured to the plaintiff, it was considered unnecessary to take away from the Civil Court the duty of determining its precise nature while in the case before us the emolument itself is in jeopardy, and on that account the decision is placed in the hands of the Court specially appointed for the protection of service inams.
23. The main object of the Regulation VI of 1831 appears to have been to prevent the appropriation of the emolument derived from lands and other sources and annexed to various hereditary village and other offices in. the Revenue and Police Departments to purposes other than those for which they were originally designed; and in order to secure the due performance of the cervices, to prevent any separation of the emoluments from the offices. With a view to accomplish this object the adjudication of all claims to such' emoluments is confined to the Revenue authorities subject the ultimate control of the Government.
24. This passage from the judgment of the Court in Basppa v. Venkatappa (1868) 4 M.H.C.R. 70 is applicable to the present Act, the successor of Regulation VI of 1831, and it appears to me that the object of the Legislature might in some cases be defeated if the adjudication be not confined to the Revenue Courts in cases in which the inam is undoubtedly land.
25. It is, I think, clear that the Board of Revenue and the Government have not interpreted this proviso as taking from the Collector the power to decree ejectment, for the rules, framed under Section 20 provide for delivery of possession in execution of a decree of a Collector by a warrant issued by him. (Board's Standing Orders Edition of 1905, Vol. i. App. III, p. 493), and when jurisdiction is given to the Revenue Court it is by Section 21 taken from the Civil Courts. The Act does not seem to contemplate concurrent jurisdictions. I am unable then to find anything to exclude the present suit from the jurisdiction of the Revenue Courts, provided that it is grounded on a claim for emoluments within the meaning of, Section 21. It has been contended before us that this is not so, and that Section 21 must be confined to suits in which the subject-matter is admitted to be: the emoluments - and reliance was placed on the decision in the case of Ravathu koundan v. Muthu Kounden I.L.R(1881) M. 41, a decision under [Regulation VI of. 1831 - as showing that when there is a denial that the 'subject-matter of the spit is emoluments, the Civil Court has jurisdiction to determine the question.
26. That was not a claim to recover emoluments, and so is clearly distinguishable from the present case. The present suit is a claim for emoluments, and as such prima facie within the jurisdiction of the Collector, and, in my opinion, it is for the Collector to determine in such a suit whether what is claimed is emolument or not.
27. To refer again to the proviso to Section 21, if the Legislature had intended to give the Civil Court jurisdiction in a case like that before us, what could be easier than to declare that intention in that proviso by enacting that recourse may be had to the Civil Courts in cases in which the defendant alleges that what is sued for is not the emolument, as well as in cases in which he alleges that no emolument appertains to the office.
28. The suit is prima facie within the provision of Section 21, and is not within the exception. I see nothing in reason or authority which should take it out of those provisions.
29. I would, therefore, allow the appeal.
30. If the effect of this be that the plaintiff looses his land, that is due to the fact that the Board of Revenue has, as was pointed out by Moore, J., mistaken the position, and instead of giving a decree for the land which it might have given, has given a decree for the assessment only.
31. In the circumstances of this, case, I would direct that each party pay his own costs throughout.
32. I concur in the conclusions arrived at by my learned brothers.