Ramesam, Offg. C.J.
1. The facts out of which this second appeal arises may be shortly stated. There used to be an ancient estate known as the estate of Bellamkonda in Sattempalli Taluk of the present Guntur District but formerly Kistna District. This estate belonged to the Malraju family. Some time in the 18th century the then holder of the estate, namely, Deshmukh Desh Pandya Malraju Ramarayanim Garu, granted an agraharam of the village of Palidevarlapadu to one Prativadi Bhayankaram Vedantacharyulu Garu. The grant was an absolute one but liable to pay kattubadi of Rs. 89-7-10. The Kistna District Manual by Mr. Mackenzie, page 318, shows that in the year 1818 the then owner of Bellamkonda Estate gave away his estate to Government by his will. His descendants are now in receipt of an allowance from Government. The Government thereby stepped into the Zamindar's shoes and were in receipt of the kattubadi. At the time of the Inam Commission, 1860, the village was enfranchised. Exhibit V-a is the inam register for the whole village. This document shows that the extent of the whole village was 521 acres 37 cents. The porambokes in the village were of the extent of 56 acres 22 cents and there were minor inams of 132 acres 90 cent. Deducting the porambokes and the minor inams amounting to 189 acres 12 cents the extent of the rest of the village was 332 acres 25 cents. Details are given in column 5 of the dry extent (327 acres 15 cents) and the wet extent (5 acres 10 cents). Of the dry 209 acres 55 cents were cultivated and the rest was waste. The wet was all waste. The annual collection from the cultivated dry lands is also given for about 15 years, namely, Faslis 1247 and 1256-1269. The average per annum is shown at Rs. 246 and the permanent assessment is shown as Rs. 270. At the time when the register according to Regulation XXXI of 1802 was prepared, the owner of the village was Vedantacharlu, son of the original grantee. At the time of the survey the enjoyer was Kumara Vedantacharlu, son of the last person. At the time of the enfranchisement the enjoyers were two brothers, Aravamu-dalwar and Thirumalacharlu, sons of the last preceding person. Column 20 shows that they were divided. Ex. I is the corresponding inam statement. It gives a pedigree and column 6 says that the agraharam was granted in the Vaisagha Sudha of the year Vijaya which corresponds to May, 1773. Under columns 7, 8 and 9 details are given of the 132 acres 90 cents of minor inams. First, there is the inam granted to the karnam 56 acres 22 cents and then there are the inams to the village purohit 10 acres 23 cents, the Muhathad 10 acres 22 cents, the vettis 15 acres 33 cents and three private inams granted by the agraharamdars to Kurmalla Venkatacharyulu 10 acres 23 cents, Prativati Bhayankaram Appalacharlu 20 acres 45 cents and Kurmalla Varadacharyulu 10 acres 22 cents,. The Inam Deputy Collector recommended the confirmation of the village as an inam adding a quit-rent of Rs. 26-8-2. The agraharam was made subject to a total burden of Rs. 116 made up of the new quit-rent and the old jodi and title deed 1154 was issued. Alongside of this the purohit inam was also enfranchised separately. Ex. V is the inam register. No. 1153 was the title deed for this. The Karnam, Muhathad and Vetti inams being village service inams were not then enfranchised. The other three personal inams were apparently intended to be enfranchised but the inamdars did not come forward to file inam statements and they were accordingly kept under attachment. This appears from Ex. V-b, the inam register, dated the 23rd November, 1865. It is not very clear whether specific lands were kept under attachment or merely a paper of attachment was made. It appears as if no inamdars ever turned up asking for enfranchisement of those inams. They seem to have left the village altogether. In the year 1911 the fact that these inams of the extent of 40 acres 90 cents were omitted from enfranchisement was first brought out by the Revenue Officers and after some correspondence in which it appears that the Collector and the Board of Revenue recommended that the agraharamdars may be dealt with leniently the Government passed a final order on the 25th October, 1921, as follows:
The Government are not convinced of the necessity for the grant of any concessions to the agraharamdars. They accordingly direct the resumption of the inams and the levy of the full assessment from the Agraharamdars who are admittedly in possession of the lands;
and the Board of Revenue was asked to issue the necessary instructions. Thereupon the Board passed a resolution, dated the 31st October, 1921, to the following effect:
Resumption ordered. G. O. communicated. Communicated to the Collector of Guntur for necessary action.
2. This was followed by the preparation of a new inam register Ex. IV imposing an assessment of Rs. 97-2-0 as additional quit-rent on the whole agraharam land. At this stage it may be observed that it was not suggested for anybody that any persons other than the agraharamdars were in possession of these inams. The inams were apparently mixed up with the rest of the agrahanam. They are not now localisable and are enjoyed either by all the agraharamdars or by some one or other of them though we are not in possession of the details of the enjoyment. The Board's resolution was followed by the imposition of the seri cist of Rs. 107-6-0. This was followed by a distraint order served on the 2nd plaintiff for Rs. 66-7-0 and the 2nd plaintiff's property was distrained by the Government officials on the 23rd May, 1923. Thereupon the present suit was filed on the 23rd March, 1925, for a declaration that the proceedings of the Government are ultra vires and illegal and for recovering the amount of Rs. 66-7-0 paid by the 2nd plaintiff. The three plaintiffs filed the present plaint. According to paragraph 3 of the plaint, the 1st plaintiff is entitled to 1/2 share and the 3rd plaintiff to 1/8 share, the other shares (1/4) 'being held by certain others'.
3. Paragraph 4 of the plaint alleges that a notice was served on the plaintiffs imposing the seri cist of Rs. 107-6-0 and refers to the distraint proceedings for Rs. 66-7-0 against the 2nd plaintiff only. It alleges that the distraint order was not clear as to the nature of the demand but the plaintiffs infer that it must have related to unlocalised inam land. The old quit-rent of Rs. 116 was paid by them but not the additional demand. In paragraph 6 the plaintiffs say:
Plaintiffs believe that they are not now in possession of the said inam and it is not possible to localise the inam. Plaintiffs are co-sharer agra-haramdars and own only fractions of the agraharam land. A large portion of the agraharam was alienated to others who are now in possession of the same. Some other portions are held by certain others and enjoyed by them.
4. The last two sentences seem to refer to the alienation of 1/4 agraharam not held by the plaintiffs. In the written statement of the Secretary of State for India in Council it was pleaded that the agraharamdars had no right to these inams and that they were excluded from the inam settlement. In paragraph 3 it is alleged that even if the plaintiffs were in possession and enjoyment for any length of time 'the Crown has the right to levy the assessment at any time and there is no bar of limitation for the Crown to exercise such a right'. Paragraph 4 refers to the G. O. directing the resumption and alleges that an assessment of Rs. 97-2-0 was imposed. The fact that the inam was unlocalisable is not denied in the written statement and in fact both the Lower Courts have proceeded on the footing that the inams were unlocalisable. The District Munsif found that these inams were included in the inam settlement of 1860. On a construction of Ex. V-a he has found that the whole village was enfranchised and that the agraharam lands on which the total land-tax of Rs. 116 was imposed included the suit inam land. In paragraph 9 of his judgment he refers to the long delay and to the fact that for the first time the Tahsildar reported in 1911 that the agraharamdars were in possession of these lands. In paragraph 10 he thinks that the Government are not entitled to resume the land and levy full assessment. In paragraph 11 he thinks there is another objection to the resumption and the levy of assessment, namely, the fact that these inams are not loealisable. He accordingly finds issues 2 to 4 in the suit for the plaintiffs. The fourth issue raises the question whether the resumption order in G. O. Mis. No. 235.5 is illegal and invalid and not binding upon the plaintiffs. In paragraph 13 of his judgment he finds that the claim to a refund of the amount is barred by limitation. In the result he gave a decree declaring that the Government are not entitled to levy and collect full assessment for the suit lands from the plaintiffs and dismissed the claim for refund of the specific sum of money. There was an appeal by the defendant. This appeal was disposed of by the Subordinate Judge of Guntur. In paragraph 10 of his judgment he says:
I agree with the Court below that the Government is not entitled to resume the lands in question and levy full assessment thereon.
5. In paragraph 11 he says that the agraharamdars had been enjoying the inams in question as they had merged in the agraharam proper. In paragraph 12 he disposed of the question of limitation and comes to the conclusion that even the suit for a declaration is barred by time under Section 59 of the Revenue Recovery Act. In paragraph 14 he observes:
I agree with the Court below that the Government is not entitled to proceed against the suit lands. Even if the plaintiffs are entitled to a declaration, a declaration and injunction against the Government are unnecessary. The Government would respect the findings of Courts.
6. These observations imply that though a relief by way of declaration and injunction was not granted by the Court the Subordinate Judge expected the Government to respect the findings of the Court and not to continue to levy the assessment on the lands. The plaintiffs have filed this second appeal.
7. This second appeal originally came on before my brother Venkatasubba Rao, J., who referred it to a Bench.
8. In second appeal as we, have come to conclusions on the various issues the opposite 6f those arrived at by the Lower Courts, I proceed to deal with this matter in some detail.
9. The first question that naturally arises for discussion is--are the suit inams of 40 acres 90 cents included in the inam settlement of 1865 and is Government's claim to resume them or assess them now erroneous and unjustified? This looks at first sight to be a question of fact and, if so, we are bound to accept the findings of the Courts below. But when we look at the material on which the conclusions have got to be arrived at, they consist not of oral evidence but of the documents representing the proceedings of the Inam Commission One has to come to a conclusion on this point solely on the construction of Exs. V, V-a, V-b and I which are all the documents connected with the inam proceedings. Taking up Ex. V-a it is contended before us by the learned Advocate for the appellants that the whole of 521 acres 37 cents which was the total extent of the village was enfranchised. He refers to the remark under column 21 in which(r) the statement appears that ' Rs. 270 may fairly represent the value of the village'. He contends that 'the village' there means the whole village and that the whole village must therefore be regarded as enfranchised. Unfortunately this argument proves a little too much. It is true that, simply because the cultivated and cultivable extent of the village, namely, 332 acres 25 cents is mentioned in column 4 we cannot say that only 332 acres 25 cents were enfranchised. The poramboke of 56 acres 26 cents must also be regarded as enfranchised. The extent of the poramboke was deducted only for the purpose of ascertaining the extent of the village which can be turned out to material profit. On this extent the income was ascertained and the quit-rent was imposed but none the less the poramboke and the waste lands must also be regarded as included in the enfranchisement for the reason that the main village was enfranchised. From this one cannot take the next step and say that all the 521 acres 37 cents were enfranchised. The village service inams could not have been enfranchised nor could a quit-rent be imposed on the agraharamdars with reference to them. The inams of the Karnam, Muhathad and Vettis must therefore be regarded as excluded. Then there remains the four inams, the one belonging to the purohit and the three personal inams, which are the subject of the present litigation. We have got the fact that the purohit inam was Separately enfranchised by Ex. V so that that could not have been included in the quit-rent in Ex. V-a or covered by the title deed 1154 for it has got its own inam register Ex. V, its own quit-rent and its own title deed 1153. Therefore it is impossible to argue that the purohit inam was included in the inam settlement of the main village. That also leads one to the conclusion that the personal inams which are the subject of the present dispute were also not the subject of the quit-rent of Rs. 26-8-2 and were not included in title deed 1154. This position is strengthened by the fact that an order of attachment was passed against them under Ex. V-b. It is obvious that Exs. V-a and V-b are parts of the same proceeding. Though Ex. V-b is dated 1865 the very fact that the Inam Deputy Collector waited for some time to see if the inamdars would turn up and when they did not turn up passed an order attaching them shows that they were kept distinct from the main proceedings represented by Ex. V-a. In our opinion, therefore, the suit inam of the extent of 40 acres 90 cents was not covered by Ex. V-a or title deed 1154. To this extent we differ from the conclusion of the Lower Courts which were of the opinion that the Government has no right to take further proceedings for the resumption or assessment of these 40 acres 90 cents. Having come to the conclusion that the 40 acres 90 cents were not dealt with in 1860, it follows that the Government is entitled to take further steps either for the enfranchisement or for the assessment or for the resumption of these inams and whichever they choose to do cannot be questioned in Civil Courts. Nor is there any limitation for taking such a step (vide Boddupalli Jagannadham v. The Secretary of State for India in Council I.L.R. (1903) Mad. 16, where it is pointed out that there is no period of limitation prescribed by any law within which alone the Government should exercise its prerogative of imposing assessment on land liable to be assessed with public revenue). So far we are in favour of Government.
10. The next question that arises is--are the steps taken by the Government for the purpose of enforcing its right and carrying out its orders of resumption legal and valid or are they ultra vires? On the facts found above we come to this state of things. First we have got an agraharam of 388 acres 47 cents which is-enfranchised and which is liable to pay a quit-rent of Rs. 26-8-2 and a jodi of Rs. 89-7-10 (total Rs. 116) to Government. Then we have got an agraharam inam land of 40 acres 90 cents which is liable to pay an assessment of Rs. 97-2-0 under Exs. Ill and IV. I am of opinion that the claim to impose Rs. 97-2-0 on the inam land of 40 acres 90 cents is valid, therein differing from the Courts below. But the question arises whether the proper steps and the proper proceedings have been taken by the Government for the purpose of enforcing its right and recovering this Rs. 97-2-0. The land subject to this burden of Rs. 97-2-0 is distinct (in theory) from the land which is subject to the burden of Rs. 116. The latter is a very favourable burden being Rs. 116 on 388 acres 47 cents. The former Rs. 97-2-0 on 40 acres 90 cents is a heavier kind of burden. The two cannot be mixed up and 'totalled up as if they are burdens of the same kind and it is not permissible to speak of a total burden of Rs. 213-2-0 upon agraharam land of 429 acres for it is open to an inamdar to retain the land which is subject to the lighter burden of Rs. 116 and give up the 40 acres 90 cents subject to the heavier burden of Rs. 97-2-0. If he does not want to incur the heavier liability he is only to abstain from paying it and Government can resume the land and grant it to some other. Where there is only one owner of the whole inam land; it may be that the unlocalisability of the inam is hot of much importance at any rate so long as the inamdar is willing to retain the land and merely contests his liability to pay the heavier assessment. If the inamdar wants to exercise his option of throwing up the land with the heavier burden1 so that it may be free for the Government to take it up and give it to some other person, the unlocalisability is a serious impediment for imposing a wholesale assessment upon the land without distinguishing the portion subject to the lighter burden and the portion subject to the heavier burden and without distinguishing the separate ownerships of the various parts of the village. The learned Government Pleader referred to my remarks in the judgment of myself and Madhavan Nair, J. in Second Appeals Nos. 648 to 832 relating to the correct application of the decisions in Secretary of State for India v. Rajah of Pittapur : (1913)24MLJ530 and Rama Rao v. Secretary of State for India 1912 H.W.N. 542. One of these, namely, Secretary of State for India v. Rajah of Pittapur : (1913)24MLJ530 , is relied upon by the District Munsif in paragraph 11 of his judgment and by the Subordinate Judge in paragraph 9 of his judgment. In my judgment in Second Appeal No. 648 of 1927 I observed that that case did not support the proposition of the Subordinate Judge in that case. In Secretary of State for India v. Rajah of Pittapur : (1913)24MLJ530 It was found by the High Court that it was not shown that the Zamindar was in actual possession of the village service inams either by inference or admission or otherwise and therefore patta could not be granted to him. The decision in Rama Rao v. Secretary of State for India 1912 H.W.N. 542 is similar. But as to Rama Rao v. Secretary of State for Indian it was observed that if it could not be shown by inference, admission or otherwise that the Zamindar was in possession of village service inams a patta could not be given to him and both parts of the proposition were illustrated in that case. I have no desire to resile from anything I said in that judgment but the difference in the facts must be noticed. In those cases there was no question of plurality of ownership. There was only one Zamindar and it was found by inference that he was in possession and it was not suggested by the Zamindar that that land had got to be kept separate from the other lands because it is subject to a burden estimated on different principles, from the rest of the land. On the facts of Rama Rao v. Secretary of State for India 1912 H.W.N. 542 and on the facts of S.As. Nos. 648 to 832 with which I was dealing, there was no suggestion of two kinds of inam lands-one land being subject to one kind of quit-rent and the other land being subject to another kind of quit-rent and both being mixed up. All that we had in that case was a Zamindar being in possession by inference of service inams within his zamindari and the question was whether a patta could be issued to him or not. There was no question of two owners and there was no question of different kinds of assessment being mixed up. If such a question was raised and the Zamindar wanted to know the lands subject to separate quit-rent so that he might throw it whenever he wanted to do so, it may be that he was entitled to insist on localisation. But these points did not arise in that case but in the present case we have got the fact that the agraharam was held by different owners. Even if we think that the plaintiffs are not enjoying their shares of the agraharam, by metes and bounds, certainly the other 4/1 of the agraharam is being separately enjoyed by some other alienees. There is no justification for dealing with the three plaintiffs who are owners of a distinct 1/2, 1/8, 1/8th shares but not divided by notes and bounds and the owners of the other separated 1/4 share as if they are all one unit. On the face of it, the question arises who enjoys the land 40 acres 90 cents. It may be that the whole of it is in the possession of the original agraharamdars and no part of it is in the possession of the alienee or it may be that the alienors and the alienees must be presumed to be in possession of parts of the inams proportionate to their own shares. Until this question is decided it is not proper nor is the Government entitled to levy an assessment of Rs. 97-2-0 upon the whole agraharam without the several sharers of the agraharam being able to know the portion on which the new burden falls and without, in the case of an individual sharer, the agraharamdar not being able to say which portion of his land is subject to the new burden and which portion is subject to the old quit-rent. Under these circumstances it seems to me that the obvious remedy of the Government to enforce the right which they undoubtedly have of imposing the new assessment is, if they cannot make the agraharamdars agree as to the portions liable to the new assessment, to take steps by filing a kind of interpleader suit making all the agraharamdars parties in which it could be determined which owner should be liable to this new burden and in what shares. In such a suit the alienees may perhaps plead that there was a representation to them that the land was subject only to a proportionate part of the old quit-rent and it was only on that representation that they purchased the land and that the whole burden of the new assessment should fall upon the alienors or it may be that there was no such representation and that the facts were known to both the alienees as well as the alienors and all are liable to a proportionate share of the new burden on equitable principles. Government has not very much to do in such a suit. That is a point which the alienors and the alienees have to fight out between themselves and, once the shares of the various sharers in the new burden are determined, the Government will only have to call upon each sharer to localise, according to his option, the particular part of the land liable to his share of the new burden. Once it is localised, if he is willing to pay the new assessment he can go on paying. If he does not pay, he can throw it up and Government can resume it and grant it to a new grantee on such terms as they like. In such a case no question can arise of mixing up two kinds of assessment and indiscriminately making the new assessment a burden upon all the agraharam land most of which is prima facie not liable for it. The need for localisation in a case of this kind is seen far more clearly than in a case where the facts are not complicated by difference of ownership and difference in the kind of assessment imposed upon the land. While therefore holding that the Government was perfectly right in claiming to impose the new assessment of Rs. 97-2-0 for the 40 acres 90 cents unenfranchised inam they are not justified in imposing it on the whole agraharam indiscriminately and taking distraint proceedings against the agraharamdars without localisation. For instance, in the present case there is a distinct order for Rs. 66-7-0 against the 2nd plaintiff. Paragraph 6 of the plaint denies that the plaintiffs are in possession of the disputed mams. The denial is perhaps not wholly true. When a proper enquiry of the kind I have indicated above is made it may be that it will be found that the 2nd plaintiff is or must be taken to be in possession of some portion but still Government cannet proceed to throw the burden indiscriminately upon any one of the agraharamdars as they choose without determining the liabilities inter se. The question of throwing this burden and determining its aliquot parts upon the agraharamdars is different from the imposition of quit-rent upon the whole inam village in 1860. The agraharamdars though they were enjoying the village in two shares, chose to file a joint inam statement and were content to take a joint patta. But there is no such consensus of minds between the various agraharamdars. The new burden cannot be thrown indiscriminately without previously localising the burden not only with reference to the land but with reference to the owners. I have therefore come to the conclusion that the proceedings imposing the new quit-rent on the whole agraharam, the demand and the distraint order for the purpose of realising it without having previously taken steps for localising the inam are illegal and ultra vires.
11. On these findings the next question arises whether the suit is barred by limitation. So far as the actual refund of the amount paid by the 2nd plaintiff is concerned, we are of opinion that the suit is undoubtedly barred by Article 16 of the Limitation Act and that portion of the claim therefore fails. The distraint proceedings were on the 23rd May, 1923. The suit was originally filed on the 6th March, 1924. That would be in time because the two months' notice which has to be given to the Government has to be deducted but the plaint was returned on the 23rd June, 1924, for presentation to the Additional District Munsif's Court. Probably the Principal District Munsif's Court and the Additional District Munsif's Court have different jurisdiction allotted to them, though the Courts are situate in the same places Instead of questioning the order by an appeal the- plaintiffs seem to have re-presented the plaint to the same Court on the 30th June, 1924. The Court again directed its return on the 23rd March, 1925. This time the plaintiffs submitted to the order and presented it to the Additional District Munsif's Court. The Additional District Munsif's Court must be assumed to be the proper Court before whom the plaint had to be filed and the other Court was not the proper Court. On that assumption there is no excuse for the delay committed from the 23rd June, 1924 to the 23rd March, 1925. The plaint as presented on the 23rd March, 1925, would be more than one year from the accrual of the cause of action. The suit for refund will be barred. But, in my opinion, the whole of this reasoning has no bearing on the question whether a prayer for a declaration and injunction is also barred. The proper article for a suit for a declaration and injunction is Article 120 of the Limitation Act. It may be that if the ground of such a suit is not that the act of Government was ultra vires or illegal but a mere irregularity which does not vitiate the main proceedings but relates only to some question of detail such as the exact amount to be collected or something of that kind which does not make the proceedings ultra vires, in such a case Article 14 of the Limitation Act may apply or in a case falling under the Revenue Recovery Act even Section 59 of the Revenue Recovery Act may apply. But where the act of the Government in respect of which a declaration and injunction is sought is an act which is illegal or ultra vires and the declaration is sought on that basis, then in such a case neither Section 59 of the Revenue Recovery Act nor Article 14 of the Limitation Act applies. So far as Article 14 of the Limitation Act is concerned, myself and Madhavan Nair, J. have dealt with this matter at great length in our judgment in Second Appeals Nos. 648 to 832 of 1927. Only one portion of that judgment comes for notice. While dealing with Surannanna Devappa Hegde v. Secretary of State for India I.L.R. (1900) Bom. 435 and pointing out that Jenkins, C. J. and Candv, J. differed and the matter was referred to Parsons, J. and after quoting the remarks of Jenkins, C. J. at pages 445, 446 and 447,1 happened to observe:
According to this view the question whether the act of Government is ultra vires or intra vires arises only in the case of an order; but where a more material act like an ouster occurs, the question of ultra vires or intra vires does not arise. There is a cause of action and the plaintiff should bring his suit within one year from the act.
12. These, sentences refer to what I thought was the view of Jenkins, C.J. There are no actual words in his judgment the effect of which is capable of being described by the above. Parsons, J. agreed with Jenkins, C. J. and there are sentences in his judgment which, if they do not express, imply that where there is an act one year's period always applies and with reference to the combined effect of Jenkins, C.J.'s and Parsons, J.'s remarks I must have made the above remarks. But, in my opinion, all this is beside the point in the face of the Privy Council decision in Laxmanrao M adhavrao v. Shriniwas Lingo which was discussed lower down in my judgment. According to that judgment whether it is an act or an order that is questioned the distinction between that which is ultra vires and that which is not ultra vires stands. In the case of an act or order which is ultra vires the action is not strictly an action to set aside but merely for a declaration that it is illegal and does not bind the plaintiff. The phrase 'to set a side' is prima facie applicable to a case vitiated only by some irregularity but otherwise valid. But in the case of an act which is ultra vires it has not got to be set aside. Only for the sake of clearness a party may seek a declaration that it is invalid and not binding on him. This is the view taken by a Bench of this Court about Section 59 of the Revenue Recovery Act in Marukkolandayammal v. Secretary of State for India : AIR1932Mad664 . The same view was taken in The Secretary of State v. Nagaraja Aiyar : AIR1923Mad665 . In this view it is unnecessary to discuss the applicability of the decision in Secretary of State v. Venkatratnam : AIR1923Mad652 . The case in Raman Naidu v. Bhassoori Sanyasi I.L.R. (1903) Mad. 638 also takes the same view in a case which is plainly ultra vires. In the face of these recent decisions of the Privy Council and this Court, we are not inclined to agree with the reasoning in the decision in Sankarappa Naicken v. The Secretary of State for India in Councils : (1910)20MLJ977 Though the decision in that case may be right as to the actual refund of the amount, in so far as it sought a declaration, the case was not correctly decided if the basis for the declaration, was that the action of the Government was ultra vires.
13. A number of decisions on the Land Encroachment Act (III of 1905) were referred to and cited before us by the learned Government Pleader. In my opinion, though there is some similarity of language between the sections of that Act and Section 59 of the Revenue Recovery Act, it is most unsafe to use any of the decisions on that Act in connection with Article 14 of the Limitation Act or Section 59 of the Revenue Recovery Act. The scope of that Act is entirely different. Provided the necessary formalities are observed, all the orders, i.e., those imposing the penalty and the levy of the penalty would be under the Act but in the present case the act of resumption is not under the Revenue Recovery Act at all but under the general law. The prayer for declaration does not relate to the proceeding under the Act. In my opinion, it is most unsafe to use decisions under the Land Encroachment Act for the point under consideration. On the other hand in Kamulammal v. Secretary of State of India (1910) 7 I.C. 402 Benson and Krishnaswami Ayyar, JJ. while holding that the suit for refund of water cess was barred under Section 59 of the Revenue Recovery Act and Section 16 of the Limitation Act granted a declaration in favour of the plaintiff in a suit relating to water cess. In my opinion, neither Article 14 of the Limitation Act nor Section 59 of the Revenue Recovery Act applies to the prayer for declaration in this case but the right of the Government to get the extra revenue by appropriate proceedings stands. They have only to resort to such proceedings, that is to say, by first getting the inam in question allotted between various agraharamdars and next localising the land in the possession of each agraharamdar and the right to the extra revenue sought to be recovered by Government is then ensured and the Government can recover the new amount or proceed against the particular land subject to it as they please but, at present, on the ground that it is not shown that either the 2nd plaintiff or the 1st and the 3rd plaintiffs are in possession of the particular bit of land on which the Rs. 97-2-0 is newly imposed by Government we think that a limited declaration and corresponding injunction should be issued in favour of the plaintiffs. The plaintiffs will have a declaration that the Government will not be entitled to recover the new assessment of Rs. 97-2-0 claimed by its proceedings dated the 25th October, 1921, until they take proper steps to have the land localised and there will also be an injunction restraining them from recovering such amount by proceedings against any of the agraharamdars indiscriminately. 'But they will be at liberty to take such proceedings after the separate liabilities of the agraharamdars. and the lands subject to the liabilities are determined in appropriate proceedings. Each party will bear their own costs throughout.
Venkatasubba Rao, J.
14. We are in this suit concerned with a plot of land of the extent of 40 acres 90 cents in the Agraharam village of Palidevarlapadu, which was originally comprised in the estate of Bellamkonda. This land represents three unidentifiable minor inams in the said agraharam. The suit has been brought by three of the agraharamclars questioning the propriety of the Government's act, which consisted of (a) the resumption of the land in question, and (b) the levying on it, as a consequence thereof of the full assessment of Rs. 97-2-0. A demand for Rs. 66-7-0 (how this figure was arrived at, has not been explained) was served upon the 2nd plaintiff, who failed to pay the amount. Thereupon his property was distrained, and he then paid the sum mentioned in the distraint ' order. The defendant is the Secretary of State for India, and the plaint asks for two reliefs: first, that it may be declared that the resumption proceedings are bad and secondly, that a refund may be directed of the amount paid by the 2nd plaintiff.
15. The material dates are the following. On the 25th October, 1921, the order directing the resumption was made by the Government. The sum mentioned above, namely, Rs. 65-7-0, was paid by the 2nd plaintiff on 23rd May, 1923. The plaint was originally presented on 6th June, 1924 and finally re-presented on 23rd March, 1925. In computing the period of limitation, the Lower Court has refused to exclude the time between these two dates, and as I agree with its view, I do not propose to discuss the grounds on which that view is based. It may therefore be taken that 23rd March, 1925, is the date when the plaint was filed. The Lower Court has held that under Section 59 of the Madras Revenue Recovery Act (Act II of 1864), the whole claim is barred, that is to say, both the claim to the declaration as well as to the refund.
16. As I have already said, two reliefs are claimed. The first question that arises is, whether both the reliefs stand on the same footing in regard to Section 59 of the Revenue Recovery Act. That section runs thus:
Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as herein-before provided, from applying to the Civil Courts for redress: provided that the Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.
17. As regards the order of resumption, can it properly be described as a proceeding under the Act The plaintiffs deem themselves-aggrieved by the order of resumption; only if it be held that that order amounts to a proceeding under the Act, the terms of Section 59 can come into play. I fail to understand by what stretch of language the resumption order can be treated as a proceeding under the Act. It is forgotten that the resumption proceedings have nothing to do with the Act; they are conducted independently of that Act and a decision is arrived at. When the Government decides that the lands are resumable and levies an assessment, then and then alone it takes action under the Act, utilising its provisions for the purpose of collecting the assessment that has already been levied. That these two proceedings, namely, the decision to resume and the actual collection, are distinct and independent, has been ignored by the Lower Court and its view is therefore utterly unsound. The cases under the Land Acquisition Act, to which the learned Government Pleader has referred us, are not in point; the analogy is misleading, as in the case of that Act the proceedings relating to the decision as well as to the collection fall under the provisions of that Act.
18. It is next contended by the learned Government Pleader that it is wrong to separate the Government's decision from its collection of the assessment, and he relies for that position upon Sankarappa Naicken v. The Secretary of State for India in Council : (1910)20MLJ977 . The judgment in that case is very brief, and the learned Judges dispose of the point in the following short passage:
It is contended that though the suit may be barred in so far as it seeks to recover the assessment levied, still it is not barred so far as the declaration and injunction prayed for are concerned. The necessity for asking for these reliefs all arise out of the action of Government in levying the assessment, and is part of the grievance for which under Section 59 the plaintiff may apply to the Civil Court for redress.
19. With this observation I am unable to agree. The idea underlying the passage is, that the levying of the assessment, by which is, meant the collecting of the amount, furnishes the cause of action both as to the declaration and the refund. With great deference, that assumption is wrong; the moment the order of 'resumption is made, the plaintiff's right to seek a declaration (if he chooses to exercise it), comes into existence. The question is, whether the order amounts to a proceeding under the Act. This has not been considered and the very point to be decided has been assumed. I therefore respectfully dissent from Sankarappa Naickin v. The Secretary of State for India in Council : (1910)20MLJ977 and it is unnecessary to deal with any subsequent decision where the view expressed in it has been approved. For these reasons, so far as the prayer for declaration is concerned, I am clearly of the opinion that Section 59 of the Revenue Recovery Act does not apply. .
20. The learned Government Pleader then contends that in any event the case is governed by Article 14 of the Limitation Act. Under that Article a suit 'to set aside any act or order of an officer of Government in his official capacity' must be brought within one year from 'the date of the act or order'. It has been held that Article 14 has no application when the order is ultra vires or made without jurisdiction; such an order is a nullity and therefore need not be set aside. What orders have been regarded as ultra vires has been discussed in numerous cases. (See Mitra on Limitation, 1932 Edn., p. 1105.) Where a Collector, who has no right to resume or assess land which is not Chowkidhari Chakram, purports to do so, it has been held that he is acting without his jurisdiction and that his order is a nullity. Again, where the Collector, who is bound to transfer, resumed Chowkidhari Chakrain land to the Zamindar of the estate, transfers, in contravention of the provisions relating thereto, such land to any other person, it has been held that his order is ultra vires and need not be set aside within the time allowed by Article 14. In the passage in Mitra I have referred to above, various other kinds of orders held by the Courts to be ultra vires are enumerated. The question then is, is the order in the present case directing the resumption ultra vires and without jurisdiction? This in effect raises the point whether the order made by the Government was within its competence and the proceedings resulting in it were properly conducted.
21. The first question that arises in this connection is, whether the agraharam in question was or was not excluded from the assets of the zamindari at the time of the Permanent Settlement. The grant of the agraharam in inam was made in the year 1774 (Fasli 1182) by the then Zamindar, subject to the payment to him of jodi or favourable quit-rent of Rs. 89-7-10. The presumption, as I have pointed out in Secretary of State v. Sri Rajah Vasireddi (1929) 30 L.W. 129 is, that inams granted on favourable quit-rent were at the Permanent Settlement excluded from the zamindari. About the year 1817 the then Zamindar raised the jodi to Rs. 190 and that act of his led to a certain suit, with which' we are not concerned. Mr. V. Suryanarayana, the plaintiffs' learned Counsel, contends that the conduct of the Zamindar is consistent only with the notion that the agraharam was included in the assets. This position is clearly untenable, as the act of raising the jodi indicates nothing more than that the quit-rent or jodi (as distinguished from the agraharam itself) was included in the assets. Moreover, the Inam Settlement of the year 1860, to which I shall presently refer, could have proceeded only upon the footing, that the village was excluded from the zamindari and the Government had therefore a right to deal with it. Accordingly the contention that the agraharam was included in the assets must be overruled.
22. We then proceed to the Inam Settlement of 1860. What happened then, is one of the vital questions in the case. At the time of the enquiry the extent of the village was furnished by the agraharamdars, which formed the basis of the settlement. The entire extent was shown as 521 acres 37 cents. Two deductions were made from this: (1) poramboke, 56 acres 22 cents, and (2) inams, 132 acres 90 cents. The balance was 332 acres 25 cents, made up of dry land 327 acres 15 cents and wet, 5 acres 10 cents. The Deputy Collector after some calculations recommended that Rs. 270 might fairly be taken as representing the value of the village. The Inam Commissioner raised the valuation to Rs. 300 and the village was enfranchised on payment of a quit-rent of Rs. 116, inclusive of the jodi already payable of Rs. 89-7-10. I have said that the extent of the inams deducted was shown as 132 acres 90 cents. The following are the particulars:
Acres. Cents.Vetti Inam .. 15 33Karnam Inum .. 56 22Purohit Inam .. 10 23Muhathad Inam .. 10 22
23. Then follow the three private inams with which we are concerned:
Acres. Cents.Inam granted to Kurmala Venkatacharlu .. 10 23' ' Frativadi Bhayankaram 40 acresAppalacharlu .. 20 45 90 cents.' ' Kurmala Varadacharlu .. 10 22_____ _____132 90_____ _____
24. The suit relates to the last three items of the total extent of 40 acres 90 cents. The question we have to decide is, whether the enfranchisement extended to these three items also. The plaintiffs' contention that it did so extend, I am unable to accept. It is difficult to imagine that the Government included in the village confirmed in the inamdars favour the land which on the latter's own showing had previously been granted away* to third parties. But it is argued that the Inam Register shows that Rs. 270 was fixed as the value of 'the village,' the argument implying that what was enfranchised was the whole village. This reasoning is fallacious, as it is an admitted fact that at least some inams were excluded. The purohit service inam was simultaneously confirmed on payment of one-eighth quit-rent, the Muhathad inam, it appears, was resumed at the same time and the Karnam service inam was also enfranchised.. The argument therefore that any special importance attaches to the use of the words 'the village' has no force. The poramboke, which was unproductive land, may well have been included, but it does not follow that the three minor personal inams, to-which I have referred, were similarly included. Then again, the terms of the title deed issued in favour of the inamdars also throw some light. It does not say that their title to the whole village was acknowledged, but recites:
I acknowledge their title to the agraharam village of Palidevarlapadu . . . . claimed to be of 327 acres 15 cents dry land, 5 acres 10 cents wet land...
25. Lastly, in 1865, an order was made directing the attachment of these three inams under Inam Rule 26. That rule is as follows:
When an inam has to all intents and purposes been entirely abandoned,, there being no acknowledged owner in existence, or if, being in existence, he omits to come forward to claim it, and when the recorded possessor of an inam fails, after due notice, to appear to prove his title, such inam will in the first instance be placed under attachment by the Collector of the District and, after the expiration of one year from the date of the notice, will be held to be liable to be fully assessed to the public revenue under the general powers conferred on Collectors by Regulation XXXI of 1802.
26. It must be on one of the grounds mentioned in this rule that the inams were directed to be attached. Very probably the recorded owners of the inams failed after due notice to appear and prove their title and the inams were thereafter placed under attachment. But the rule goes on to provide that at the end of one year from the date of the notice, the inams will be fully assessed to public revenue. In this case the matter appears to have been lost sight of and nothing was done beyond attaching the inams. There can be no doubt that what happened in 1865 was a part of the same enquiry that started in 1860. These proceedings, far from showing that the three minor inams were included in the village, prove the exact opposite. To resume the narrative, in 1911 it was discovered that these three inams had been left out and reports were called for from the Collector. The Board of Revenue suggested to the Government that 'the present agraharamdars might be given the option of enfranchisement on the same terms as those on which the agraharam is held. But the Government did not approve of this suggestion, and by their order dated the 25th October, 1921 ' declined to show any concession to the agraharamdars' and directed the resumption of the inams and the levy of full assessment from them. The Tahsildar of the taluk reported that the highest tharam assessment in the agraharam was Rs. 2-6-0 per acre and the total assessment therefore on the unlocalised extent of 40 acres 90 cents might be fixed at Rs. 97-2-0. The result was, that: an additional quit-rent of Rs. 97-2-0 was imposed on the whole agraharam land. I must here remark that in the course of the enquiry that commenced in 1911, two of the agraharamdars appeared and stated that the minor inams in question had reverted to them, the purpose of the grant having ceased.
27. I have just pointed out that the argument, that the Government could not resume these inams on the ground that they had been included in the village at the settlement of 1860, cannot prevail. A further point, however, has been raised that the inams being unlocalised, the Government had no right to resume them.' This position requires to be carefully examined. First, turning to the rulings of this Court in Secretary of State for India v. Rajah of Pittapur : (1913)24MLJ530 (decided by Sankaran Nair and Oldfield, JJ.) the inam lands as such had disappeared, that is to say, the Government were not able to identify or localise them. The Zamindar refused to receive the pattas on the ground that he was not in possession of ,the inams. Sankaran Nair, J. observed:
It is necessary therefore for the Government before imposing quit-rent to localise the lands.
28. But the rule stated so generally has been qualified in a later decision. In Rama Rao v. Secretary of State for India 1912 M.W.N. 542 Sundara Aiyar and Ayling, JJ. lay down the test, has it been shown that the lands are in the possession of the plaintiff? If so, they can be resumed. That fact, like any other fact, may be proved by direct evidence or admission or may be inferred. The question arose in respect of three inams attached to the offices of Nattanmai, Karnam and Kavalgar. Applying the test mentioned above, the learned Judges, on the finding that the Kavalgar lands were in the plaintiff's possession, held that they were rightly resumed. As to the Karnam's inam, the lower appellate Court had found that it was in the plaintiff's possession ; but the High Court, reversing that finding, set aside the resumption of that inam. In regard to the Nattanmai inam, the same test was again applied, the plaintiff was found to be in possession and the resumption was held valid. The same principle seems to have been adopted in the batch of Second Appeals (Nos. 648 to 832 of 1927 etc.), on which the learned Government Pleader has so strongly relied. In Rama Rao v. Secretary of State for India 1913 M.W.N. 639 the resumption was set aside on the ground that the land, which was Nattanmai inam, could not be localised. Benson and Sundara Aiyar, JJ. observed that there was no evidence that the plaintiff was in possession of the inam lands. So much for the authorities cited. As to the principle involved, prima facie what cannot be identified cannot be resumed. This is self-evident; but if the doctrine be strictly applied, it must lead to obvious inconvenience and injustice. It has therefore been rightly held that whether localised or not, if the land has been proved to be in the party's possession, he can be called on to pay the assessment thereon. This is the effect of the decisions; but even in such a case steps should be taken to demarcate the land. Ex hypothesi it is impossible to localise the plot, but that does not absolve the Government from the duty of setting apart some specific land as being liable for the quit-rent. As against the Crown a subject has an undoubted right to relinquish his holding and thus free himself from the burden of the assessment. To refuse to mark off the land, would be to deny to him this right. When portions of the inam, as is alleged in the present case, have passed by alienation into the hands of third parties, the situation becomes still more complicated. It may be that the alienee is able to prove to demonstration, that the portion in his possession never comprised the land saught to be resumed. To impose the assessment upon the whole village generally, would be in such a case a very harsh step. If the owners consent, there can be no difficulty in Government demarcating the land. In the absence of the necessary consent, the Government is bound to take appropriate 'action with a view to setting apart the land and apportioning the liability.* If the several owners or the several co-sharers prove obstructive, the Court will undoubtedly take notice of that fact when deciding the case where the question of the propriety of the Government's action is raised.
29. With these remarks let us examine what has happened in this case. The 1st plaintiff, it is stated in the plaint, is entitled to a half share in the agraharam, the 2nd to one-eighth and the 3rd also to one-eighth, ' the other shares,' the plaint goes on to state, ' being held by certain others'. This statement is amplified in paragraph 6 of the plaint.
Plaintiffs believe that they are not now in possession of the said inam and it is not possible to localise the inam. Plaintiffs are co-sharer agrahararndars and own only fractions of the agraharam land. A large portion of the agraharam was alienated to others who are now in possession of the same. Some other portions are held by certain others and enjoyed by them.
30. I have already said that a demand for Rs. 66-7-0 was served upon the 2nd plaintiff, and when the amount was not paid, his property was distrained. It does not appear how the figure of Rs. 66-7-0 was arrived at or why it was against the 2nd plaintiff's property alone that the Government proceeded. In paragraph 9 of the plaint the plaintiffs complain:
I was therefore improper for defendant's officers to have collected, as they have done, from 2nd plaintiff more than the share of the rent proportional to his share in the agraharam.
31. It was the Government's duty to have proved that the plaintiffs were in possession; but even their written statement does not contain denial of the allegation of the plaintiffs, that the lands in question were not in their possession nor was it proved at the trial that they were so in possession.
32. To another circumstance I may advert, which shows how necessary it was to mark off the land before directing its resumption. That is the disproportion between Rs. 116, the favourable quit-rent on the village claimed to be of the extent of about 300 acres and Rs. 97-2-0, imposed on the comparatively small extent of 40 acres odd, to which the suit relates. If the land liable for this heavy assessment is not indicated, which of the several different owners is to be made to pay this large amount? The Government on such material as is available, having regard to such equities as arise, should come to a decision in regard to the allotting of the plot and the apportioning of the liability. Before the order in the present case was made, no such steps as indicated above were taken, and I must there fore hold that the act of resumption is ultra vires. If that be the correct view, that order need not be set aside under Article 14.
33. The learned Government Pleader contends that in this case there was something more than a bare order, the act of distraint, and therefore under Article 14 the suit should have been brought within one year from the date of that act. If the order is ultra vires, the act done in pursuance of it is ultra vires too. If the ultra vires order need not be set aside, I fail to see why the ultra vires act should be set aside. I am not to be understood as deciding that the act need not be set aside at all; we are concerned for the present only with Article 14 and under that special Article I am of the opinion that the ultra vires act need not be set aside. I hold that the Article applicable is Article 120, which prescribes a period of six years. I decide therefore that the suit, in so far as it relates to the declaration, is not barred. The Lower Court's judgment to that extent is set aside.
34. Then as to the refund of the money actually paid, there has been some contest as to whether Section 59 of the Madras Revenue Recovery Act or Article 16 of the Limitation Act applies. It is unnecessary to discuss this question as, whichever of these two provisions is applicable, the suit to that extent is beyond time. The decree of the Lower Court dismissing the suit, so far as it relates to the refund of the amount, must therefore be confirmed.
35. In the result, I agree in the order proposed by the learned Officiating Chief Justice.