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Kasturi and ors. Vs. Anantharam Thivari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1903)13MLJ248
AppellantKasturi and ors.
RespondentAnantharam Thivari and ors.
Cases ReferredKrishnasami v. Venkatarama I.L.R.
Excerpt:
.....the landcess and villagecess from defendants 1 to 4 and their predecessors. it is clear that the government revenue was not assigned to the trustees as inamdars in respect of the holding, and the very fact that the government did not direct the ryot to execute the, muchilka exhibit d, in favour of the plaintiff's mutt, but took it in its own favour clearly indicates that there was no transfer of the rights of government to the plaintiffs, and it would probably be open to government at any time to substitute any other arrangement for that made in 1803 in this view whenever the ryot fails to pay the said assessment to the trustees of the mutt, the latter should bring the matter to the notice of the revenue authorities, and it would be competent to them to realize the arrear under act ii..........assignment in favour of the plaintiffs, would have been obliged to pay the amount in question as land revenue to government according to their respective shares. in the view that the plaintiffs have not been constituted inamdars so as to create the relation of land-holder and ryot between themselves and pattadars the claim made by the plaintiffs cannot be regarded as one for rent either for the purposes of the rent recovery act, or for the purposes of article 110 of schedule 2 of the indian limitation act, 1877. there being no special article applicable to a claim, such as the present, it falls under the general article no. 120, which prescribes six years from the date of the cause of action and the claim therefore as a person alone is not barred. as only some of the defendants have.....
Judgment:

1. Until 1863 the Government was paying from the Public treasury in cash Rs. 233-5-3 to the trustees of a charitable mutt, of which the plaintiffs are the present trustees. In 1863 the Government in lieu of the cash payment directed the predecessor of defendants 1 to 4, who was the holder on ryotwari tenure of 5 and odd velis of land, to pay the first crop assessment payable on the land amounting to Rs. 233-5-3 to the trustees of the mutt instead of to the Government revenue officers and obtained from him an agreement (Exhibit D) that he would do so, and from that time the trustees were apparently collecting the said amount and the Government was collecting the 2nd crop assessment on the land amounting to Rs. 120 as well as the whole of the landcess and villagecess from defendants 1 to 4 and their predecessors. In 1893, at the time of the revision of the Tanjore assessment, the assessment for the 1st crop was raised to Rs. 299-8-0, the difference (Rs. 66-2-9) between that and the former assessment being payable to Government direct.

2. The plaintiffs bring this suit to recover Rs. 709-8-6, being the amount payable under the arrangement made in 1863 in respect of faslis 1303 to 1306 inclusive. They seek to recover this both personally from defendants 1 to 4 and as a charge on the said 5 and odd velis of land, portions of which have now passed into the hands of defendants 6 to 16,

3. The District Munsif gave a personal decree against defendants 1 to 4 only and dismissed the suit in other respects.

4. On appeal by the plaintiffs to the Subordinate Judge, he held that the plaintiffs were entitled to a charge on the land and gave a decree against all the defendants to that effect, affirming also the personal decree against defendants I to 4.

5. This second appeal is made by defendants 8 to 11 and 14 alone. The principal contentions raised by them are that the plaintiffs, even if entitled to maintain the suit, have no charge on the land, and that if so, the period of limitation applicable is 3 years, the suit being one for rent and is therefore barred except as against the 2nd defendant, who has given an acknowledgment of liability which saves the bar as against him.

6. In support of the Subordinate Judge's judgmen the learned pleader for the 1st and 2nd respondents relies on the decision of this Court in the case reported in Krishnasami v. Venkatarama I.L.R. 13 M 319. In the absence of the necessary materials bearing on the question, some of which are referred to in Exhibit D, we are unable to express a definite opinion on the point, but we are inclined to agree with the view there taken by Mr. Justice Shephard, viz., that by the similar arrangement made in that case in 186) the Government did not part with its right to the revenue and the fact that a portion of the public revenue was temporarily appropriated by Government to a demand against the public treasury did not deprive such portion of its character as public revenue. It is clear that the Government revenue was not assigned to the trustees as Inamdars in respect of the holding, and the very fact that the Government did not direct the ryot to execute the, muchilka Exhibit D, in favour of the plaintiff's mutt, but took it in its own favour clearly indicates that there was no transfer of the rights of Government to the plaintiffs, and it would probably be open to Government at any time to substitute any other arrangement for that made in 1803 In this view whenever the ryot fails to pay the said assessment to the trustees of the mutt, the latter should bring the matter to the notice of the revenue authorities, and it would be competent to them to realize the arrear under Act II of 1864 (Madras) and pay it over to the trustees. This view, however, was not put forward either in the pleadings or in the courts below, and defendants 1 to 4 have not appealed to the Lower Appellate Court and have not taken any part in bringing this second appeal. The case has therefore to be disposed of on the footing that the plaintiffs were assignees from Government of the said annual amount of Rs. 23.-5-4 entitled to sue in their own names, in this view it is clear that the amount which they now seek to recover is not public revenue, but an income due to the mutt though the right of the mutt to such income originated in a grant or arrangement made by Government. Sections 2 and 42 of the Revenue Recovery Act are applicable only to public revenue and not to the realisation of sums due to an institution like the plaintiff's mutt. The plaintiffs can therefore enforce (heir claim only as a personal one against the holders of the land for the time being who, if there had been no assignment in favour of the plaintiffs, would have been obliged to pay the amount in question as land revenue to Government according to their respective shares. In the view that the plaintiffs have not been constituted Inamdars so as to create the relation of land-holder and ryot between themselves and pattadars the claim made by the plaintiffs cannot be regarded as one for rent either for the purposes of the Rent Recovery Act, or for the purposes of Article 110 of Schedule 2 of the Indian Limitation Act, 1877. There being no special article applicable to a claim, such as the present, it falls under the general Article No. 120, which prescribes six years from the date of the cause of action and the claim therefore as a person alone is not barred. As only some of the defendants have preferred this second appeal viz., defendants 8 to 11 and 14, the decree appealed against will stand so far as the other defendants are concerned. The 9th defendant was a purchaser of a part of the land in revenue auction sale, and no part of the sum claimed in the plaint accrued due subsequent to his purchase. The 11th defendant is only a mortgagee and as such is not liable for the Government revenue and therefore for the plaintiff's claim. As regards defendants 8, 10 and 14, they were no doubt in possession of portions of the land during fasli 1306 and as such would be personally liable to pay severally the revenue falling due on their respective portions, but as the plaintiffs have obtained a decree which has become final in the Original Court personally against defendants 1 to 4 in respect of all the lands for the whole of fasli 1306, the plaintiff cannot obtain a further decree against defendants 8, 10 and 14 for a portion of the same amount. The Second Appeal as regards all the appellants is therefore allowed. The plaintiffs will pay the costs of the appellants in this and in the lower appellate Court. The decree of the lower appellate Court will be modified accordingly and affirmed in other respects.


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