1. The plaintiff's right to resume the villages held by the defendants is chiefly put upon the ground that the latter and their predecessors have always held and still hold by tenure of service. It is also contended that, by the custom of the zamindary, the Maharajah had the right to resume the villages, and that the grant of 1853 made by the plaintiff's predecessor must be construed with reference to the acts done and views expressed by him at or about that time. Since 1853 the defendants have been holding under an instrument, dated the 13th September 1853, which recites that the villages then under attachment had been granted to their ancestors for family purposes under tenure of service, and that no kattubadi had hitherto been payable. It provides that henceforward kattubadi shall be payable at the rate of Rs. 300 a year, and requires that the grantees 'shall behave themselves properly, abiding by the orders of the circar as was done before the attachment (sabak).' The attachment mentioned in this document had been in force since 1845, when the plaintiff's grandfather died. Up to that date the defendant's predecessor had held the villages under an instrument of 1808 (XII). That instrument, styled a mokhasa patta, declares that the grantees shall enjoy the villages hereditarily. Except in the use of the word mokhasa there is no reference to any service. The grant is an absolute one, free of rent and evidently intended to be in perpetuity. The plaintiff's counsel was unable to explain what the nature of the supposed service required of the defendants was, and we can find no evidence that any services were ever rendered or required. The probability is that the grant of 1808 was made to the defendants' predecessors simply because they were fellow caste-men of the Maharajah whom he wished to maintain. No doubt it was the current opinion in 1853 that such grants were liable to resumption. That circumstance explains the language used by the late Maharajah in the letter on which the plaintiff's counsel relied.
2. The circumstances under which the new grant was made in 1853 are similar to those in Vizianagram Maharajah v. Suryanarayana I.L.R. 9 Mad. 307. In that case the Privy Council approved the judgment of this Court in dismissing the suit. The expressions of subservience used in the grant of 1853 are likewise to be found in the grant in the case. We may also refer to the decision of this Court in Suryanarayana v. Ramachandra Appeal No. 77 of 1866 unreported.
3. We agree with the District Judge in the conclusion at which he has arrived. We think there is no evidence of the alleged custom. The plaintiff's appeal must be dismissed with costs.
4. The objection on the part of the respondents in Appeal Suit No. 134. is based on the law of limitation. The Judge has held that the suit for kattubadi is one to which Article 132 of the schedule to the Act applies and has awarded relief accordingly. Whatever may be the nature of the claim for kattubadi, the suit is so framed as to enforce the personal remedy only. It has been held by the Judicial Committee that the 132nd article has reference only to cases in which the property charged is sought to be made liable Ram Din v. Kalka Prasad I.L.R. 7 All. 502 see also Miller v. Runga Nath Moulick I.L.R. 12 Cal. 389; Seshayya v. Annamma I.L.R. 10 Mad. 100; Rathnasami v. Subramanya I.L.R. 11 Mad. 56. In the face of these decisions we are bound to disregard an unreported decision to the contrary effect to which our attention was called 1. We must allow the objection and the decree must be amended accordingly. The respondents are entitled to their costs on this part of their objection. The other objections are not pressed.
5. In Appeal Suit No. 179 of 1893, the memorandum of objections is allowed with costs.
Second Appeal No. 822 of 1894 8th November 1894: Venkatarama Doss v. Maharajah of
Vizianagram. This was a suit by the Maharajah of Vizianagram to recover from the defendant
a sum of money being arrears of kattubadi accrued due for eleven years (faslis 1289 to 1299
both inclusive) on the village of Arjunavalasa held by the defendant in the plaintiff's
zamindari. It was held by the lower Courts that the suit was not barred by limitation for the
reason that kattubadi was not rent merely but constituted a charge on the land. Alubi v.
Schedule II, Articles 1312 and 132, were held to be applicable to the case. The judgment of
Description of suit. limitation Time from which period begins to run.
To establish a periodically Twelve years.... When the plaintiff is first refused
recurring right. the enjoyment of the right.