1. The first point raised in this petition is that the District Munsif had no jurisdiction to try the case as the relief which could be granted to the plaintiff is not a relief which a Small Cause Court is empowered to give, viz., mortgage decree. The argument is that the defendant who is in possession of property is liable to pay the tax on the property and when the pattadar pays the tax, he can only have a remedy against the land in the same way as the Government would be entitled to proceed against it, and the defendant not being a pattadar, Section 5 of the Revenue Recovery Act (Madras) II of 1864 has no application to him.This point was not raised before the District Munsif. His contention there was that the suit was not maintainable not on the ground that the Small Cause Court could not give a mortgage decree against the defendant but on the ground that patta had not been transferred to the defendant and therefore he was not liable to pay the revenue. The point not having been raised in the first Court, I do not think the defendant should be allowed to raise it in this Court. The suit as framed was a Small Cause suit and the relief prayed for also was one within the competency of the Small Cause Court to grant, and the relief granted was only for payment of money. That being so, the frame of the suit and the relief claimed were all within the cognizance of the Small Cause Court and the defendant could have pleaded that the suit as framed was improper and that a suit should have been differently framed and such suit would not be within the cognizance of the Small Cause Court. He not having taken the point before the District Munsif is not entitled to take the point now.
2. The next contention is that the plaintiff cannot obtain a personal decree against the defendant, and he relies on Subra-mania Chetti v. Mahalingaswami Sivan 19 M.L.J. 627 and Boja Sellappa Reddi v. Vridhachala Reddi 16 M.L.J. 569. In Boja Sellappa Reddi v. Vridhachala Reddi 16 M.L.J. 569 it was found that the payment was a voluntary payment and in Subramania Chetti v. MahaMngaswami Sivanl 19 M.L.J. 627 it was found that the mortgagee paid the kist on the property not in his capacity of pattadar but in his capacity of a mortgagee. In a recent case, C.R.P. No. 489 of 1923, Mr. Justice Krishnan held that the remedy which is open to a pattadar who pays kist against the owner of the land who is bound to pay it is not by a personal decree but by a decree against the property. These cases have no application to the present case as the District Munsif finds that there was a special agreement between the parties that the revenue payable on the plaint property was to be paid by the Tarwad of the defendant, and from the previous conduct of the parties it is clear that the plaintiff paid the revenue on the land on behalf of the defendant. That being the course of conduct between the parties, it is not now open to the defendant to contend that the plaintiff is not entitled to obtain a personal decree against him. The District Munsif has given a decree for the revenue for 4 years on the ground that Ex. 1 which is a registered sale deed provides for the payment of kist by the defendant. Under that document, the vendee, i. e., the defendant, was asked to pay assessment. That would not enable the plaintiff landholder to claim kist for more than three years prior to the date of the suit. The decree will therefore be modified by giving the plaintiff a decree only as regards the three years' kist. Each party to bear his own costs.