1. The point arising for decision in these petitions is whether the holder of a pre-settleraent inam in a zamindari can under any, and, if so, what circumstances be dealt with as an 'intermediate landholder' from whom the zamindar can claim to recover the whole or a portion of the cess paid by the zamindar to Government under Section 88 of the Madras Local Boards Act.
2. So far as we are able to gather from the materials now before us, the inam to which these petitions relate seems to have been granted long prior to the permanent settlement and in some of the reports filed in the case the purpose of the inam is described as 'Veeti Koluvu'. This expression has not been very much elucidated either by the translation adopted by the District Munsif. We prefer to leave it in the vernacular form so that the matter may be better investigated by the lower Court to which we are remanding these cases. It appears from the evidence-and on that circumstance one of the chief contentions raised by the defendants in the lower Court was based-the holders of these inams are in actual occupation of the land. It was accordingly contended that they cannot be regarded as intermediate landholders within the meaning of Section 88. It has been held in Bhupathi Raju v. Subba Rao (1931) 62 M.L.J. 472 : I.L.R. 55 Mad. 646 that the possession of the land itself by the inamdar does not preclude his being an intermediate landholder within the meaning of Section 88 because the first proviso to that section contemplates cases where the intermediate landholder may or may not have a right of occupancy. In Bhupathi Raju v. Subba Rao (1931) 62 M.L.J. 472 : I.L.R. 55 Mad. 646 the inamdar no doubt held a darimilla or post-settlement inam : but it does not appear to us that the decisive fact is whether the inam is a pre-settlement inam or post-settlement inam but whether even in the case of a pre-settlement inam the lands have been excluded from or included in the assets of the zamindari when the permanent settlement was made. The scheme of the Local Boards Act is that when the inam lands have not been included in the assets of the zamidari the inamdar is himself a landholder holding directly under the Government. But if the assets include the inam lands as well, he has no direct relation with the Government but the Government collects the cess from the landholder and the landholder reimburses himself from the inamdar treating him as an intermediate landholder.
3. In the plaint as originally filed the suit inam was described as darimilla inam but the written statement pointed out that the inam had been granted long before the permanent settlement. The plaint apparently made a mistake on account of the way in which the estate accounts have referred to this inam. Sometime after the written statement was filed and the mistake was pointed out, an application was filed on behalf of the plaintiff to amend the plaint (Interlocutory Application No. 291 of 1933) and similar applications in the rest of the batch, but the District Munsif dismissed it. We do not think that in the circumstances the amendment petition really attempted to change the cause of action. We accordingly allow the amendment to be made as prayed for but in the circumstances we also think it right to allow an opportunity to the defendants to raise any additional pleas that they may think fit to raise with reference to the plaint thus amended. The lower Court will then decide the question whether or not the suit inam lands had been excluded from the permanent settlement. There is an observation in the District Munsif's judgment that the Freese Report shows that they have been excluded. From the portion now made available to us we do-not think that it is so. Mr. Lakshmanna, the learned Counsel* for the respondent, has not been able to draw our attention to any such portion in the report. That observation of the District Munsif will accordingly be ignored and the question, tried afresh.
4. Mr. Lakshmanna suggested that there is some lacuna in Section 88 of the Local Boards Act and that pre-settlement inams. even if they had been included in the assets should not be held to he covered by the expression 'under-tenure created, continued or recognised by a landholder,' in the first proviso to Section 88 because, according to him, those three words must be held to refer only to post-settlement grants. It does not appear to us that these words are in their natural meaning so limited nor have we been shown any reason why, having regard to the policy of the permanent settlement and the scheme of the Local Boards Act, such pre-settlement inams should be excluded from assessment or the zamindar be made to pay the whole cess in respect thereof.
5. A further point was made by Mr. Lakshmanna that it is only when payment of kattubadi, jodi, poruppu or quit-rent is provided for in respect of any inam that it will come under that proviso. We do not think that it is the proper construction. All that the proviso enacts is that where kattubadi, jodi, poruppu or quit-rent is in fact paid, one half of the cess calculated with reference to such payment shall be deducted and the balance will be the amount which the landholder is entitled to recover from the intermediate landholder. Where no such payment is made, the landholder will be entitled to recover the cess from the intermediate landholder without any such deduction.
6. The other question dealt with in the judgment of the District Munsif is one of limitation. He has held the suits to be barred in respect of certain items on the footing that such a suit is governed by the three years' rule of limitation. We see no warrant for applying the three years' rule. The suit is not one for rent nor is it based on any contract express or implied. It is to enforce a liability created by statute. In such a case the course of decisions in this presidency has been to the effect that the suit will be governed by Article 120. In this view no portion of the suit claim will be barred by limitation.
7. The plaintiff claims interest on the amount sued for. We see no basis on which the plaintiff can claim interest prior to the date of the plaint. The plaintiff will only be entitled to interest at six per cent, per annum (on such amount as may be decreed in his favour) from and after the date of the plaint.
8. The decrees of the Court below are set aside and the cases sent back for retrial in the light of the above observations. In the circumstances there will be no order as to costs in these Civil Revision Petitions. Costs in the lower Court will be provider for in the revised decrees.