1. The following facts are either undisputed or are proved by the evidence:
The plaintiffs are the lessees of the Sivaganga Zemindari. Prior to fasli 1300 it was the custom for the tenants to bring their paddy, when harvested, to the threshing floor, when it was divided among those entitled to it in the following manner:first, the ' common charges ' were deducted; that is, the actual cultivator took his expenses of cultivation (Kudi Swatantram) and the village servants, such as the Kamam, Ambalagaran, totti, etc,, took the shares due to them (Pala Swatantram). Then the balance was equally divided between the Zemindar (or his lessees)(Melvaram) and the tenant (Kudivaram),
2. . This was done in the presence of the Zemindari officials, the tenants and the village servants, and neither the Melvaram nor the Kudivaram could be taken until the 'common charges ' had first been appropriated. From and after fasli 1300 the lessees altered this old system which had obtained from time immemorial. They then directed the tenants not to bring the paddy to the threshing floor for division as hitherto, but to bring it direct to the granaries (Kalanjiams) of the lessees, and they promised to pay the village servants their fees, Swatantram, in a lump from the granaries. The village servants do not appear to have been consulted as to this arrangement; some of them appear to have acquiesced in it, but the totties protested. Their protest was unheeded, and they appear then to have accepted the situatiou and looked to the lessees for payment of their fees. These fees were, in part at all events, paid by the lessees to the village servarts, but a part of the fees due to the totties of Tirupatur and Themmapathu, for the faslis 1300 to 1302 remained unpaid. The totties are menial village servants who discharge various duties both for the Zemindar and for the Government and for the villagers. Their duties include both revenue and policy duties, as there are no Kavalgars in those villages, their duties being dis-charged by the totties. They made repeated applications to the lessee's officials for the unpaid fees, but could get no satisfaction. They then sent a number of petitions to (he Government Revenue officials who repeatedly pressed the lessees' officials for payment of the arrears due. These arrears are shown in Exhibit (1)a statement furnished by the lessees's Tahsildar to the Government Deputy Tahsildar on' the 7th April 1894. It showed the total paddy fees due to the totties for faslis 1300 to 1302 (1st July 1891 to 30th June 1893), the amount which had been actually paid to them in kind from the lessees' granaries and in eash from the lessees' treasury for paddy which had, been collected and sold and the balance that was still due, partly in cash by the lessees and partly in kind. The latter was shown as with parties,' meaning apparently, that it was still in the hands of the tenants and had not been collected by the lessees. Farther correspondence followed, and at length on the 27th July 189,3 the, Deputy Tahsildar issued a demand under Section 52 of the Revenue Recovery Act (II of 1864,. Madras) on the lessees for the balance shewn in Exhibit A (I). ' This was paid by the lessees on the 5th August 1896 under protest, on the ground that they were not liable for any fees which had not been actually collected by them. On the 4th August 1897 the lessees filed the present suit against the Secretary of State to recover the money Rs. 219-0-1) so paid and for other reliefs. The' Subordinate Judge dismissed the suit, and the lessees now appeal against that decree.
3. The fundamental question which we have to decide is wheth-er, in the circumstances of this case-, the totties were entitled to demand their fees from the lessees or could recover them only from the tenants. The question is not altogether frez from difficulty, but the conclusion at which we arrive is that the totties could demand them from the lessees. It is to be observed that prior to fasli 1300 the question never arose. The crop was taken to the threshing floor by the actual cultivator or the tenant under the supervision of the lessees officials and the common charges' including the totties fees were there and then deducted a first charge, and handed to the persons entitled thereto,or, in their absence, to the ambalagaran, who took charge of them for the absentee; and it was only after this had been done that either the landlord or the tenant could take their shares of the balance. The village servants could hardly be said to recover their fees from either the tenant or the landlord, but rather from a common fund from which all were to receive a share, and the shares of both landlord and tenant were equally liable to, and equally affected by, the deduction of the first charge in favour of the village servants. The fees to the village servants were not at that time entered in the Zemin accounts, but from fasli 1300 the tenants were required by the lessees to bring the whole crop, or at least the Mel-varam and village officers' fees, to the lessees' granaries direct and the village officers' fees were from that time entered in the Zemin ' Demand, collection and balance accounts.' The reason for the change is not quite clear, but it was probably to enable the lessees to exercise a stronger control over the village servants, for the lessees' Tahsildar says.' The lessees issued orders not to disburse the Swatantrams if the village servants should show remissness.' Whatever the reason was, it is clear that the change was made by the authority of the lessees, and for their own purposes, and on a promise or understanding that they would pay the fees in a lump to the village servants at the granaries (see evidence of 1st defence witness, uncontradicted).
4. The effect of the change was to deprive the totties of their customary and easy means of recovering the dues as a first charge on the produce and to give them instead the security of the lessees, undertaking that they themselves would pay them the fees There is nothing to support the present contention' the lessees that they are liable to pay only so much of the fees as were actually collected by them. There is no evidence to that effect, and the plea does not appear to have been put forward by their Tahsildar until quite a late stage. There is no evidence that the lessees have in fact been unable to collect their Melvaram to an extent proportionate to the arrears of swatan-tram. All that appears is that up to the date of Exhibit A (I) the totti Swatantram not received by the lesssees was the amount therein shown. The totti Swatantram is a fixed proportion (8 markals in every 35 kalams of the gross out-turn of the crop), and it is not clear how the lessees' officials could have calculated the exact amount of the fees due to the totties unless the out-turn had been measured or the Melvaram paid. Apparently the lessees collected their own Melvaram, but not,in all cases, the Swatantram. Thus the 4th witness for plaintiffs, the Karnam of Themmapattu, says, ' some of the big ryots, ambalagarans and others, without paying Swatantram, only paid the Melvaram.' Thus the effect of the change, if the lessees are not liable to the totties for their fees is to enable the lessees to apply in satisfaction of their own melva ram the grain first received from each tenant, depriving the totties of their first charge on the crop, and leaving them to get their dues as best they can from the balance in the hands of the landlord or the tenant as the case may be We think that the lessees by their conduct, and by undertaking t5 pay the fees to the village servants, rendered themselves liable for the payment of those fees. The fact that the fees were for the first time from and after fasli 1300 entered in the lessees 'Demand collection and balance ' accounts shows that it was -their intention to collect them, and supports the inference and the evidence of the 1st defence witness, that they made themselves responsible for their payment to tie village servants. It is argued that the lessees prior to fasli 1300 never collected the fees from the tenants and have no legal power now to collect them and' cannot, therefore, be liable for them. It has not yet been decided whether the lessees have or have not that right, but it does not affect the question of their liability to the totties. Prior to fasli 1300, the totties never collected their fees from' either the tenants or the lessees, as already explained, but it cannot be argued that, for that reason, neither are now liable to the totties. The change of system was made by the lessees and the tenants without the consent of the village servants, and it seems reasonable that, in the circumstances, both should be liable for the fees, The lessees, at all events, are liable since. They are entirely responsible for the. new state of things under which the totties are deprived of their customary means of obtaining the fees. It is contended for the plaintiffs that if they are hable at all it is not for the fees but for damages, as wrong-doers; and that such damages can only be recovered by suit in a civil court. We do not think the contention is sound. The lessees made themselves liable to pay the fees, and whether that liability results from custom or contract, or otherwise does not seem to affect the question of procedure.
5. Section 52, Act II of 1864 (Madras), enacts that all fees or other dues payable by any person to or on behalf of the village servants emplo5'ed in revenue or police duties may be recovered in the same manner as arrears of land revenue.' The Collector, as representing Government, is interested in seeing that village servants of the class specified are paid their dues so as to enable them to discharge their duties efficiently, and if he is satisfied that their dues are improperly withheld by any person, he has power under this section summarily to compel payment. It is suggested that when the person alleged to be liable to pay the fee denies his liability and claims that it rests on some other person the Collector carnnot take action until the dispute has been settled by a suit under Regulation VI of 1831 Madras. No doubt it would be open to the Collector to take this course, and it would ordinarily be the better course, but we do not think that he is bound to take it in all cases. He may satisfy himself, in any way that the fees are payable, just as he may satisfy himself in any way that land revenue is payable by a person, and when so satisfied, he may proceed under the section. It is further contended that the totties could not have sued the lessees under Act III of 1895 (Madras) for recovery of the arrears as they had accrued more than 3 years before the Deputy Tahsildar's demand was issued, and that, therefore, the debt was barred and consequently not 'payable' within the meaning of Section 52 when the demand was issued. In answer to this it seems to be enough to say that by Section 22 of Act III of 1895 it is enacted that nothing in that Act shall affect the provision of Section 52 of Act II of 1864.
6. We think, then, that the lessees were liable for the fees and that there was nothing to prevent the Collector from proceeding under Section 52 to realize them. Oh this ground, we think the decree of the Subordinate Judge dismissing the suit was right on the merits and because the suit was barred under Section 59 of the Act not having been brought within 6 months of the time when the alleged cause of action arose No issue was raised in the lower Court, nor was any argument addressed to us to show that Regulation VI of 1831 and Act III of 1895 (Madras) are not applicable to the Sivaganga Zemindari.
7. We dismiss the appeal with costs.