1. These suits were brought by certain mokhasadars in the Kistna District to eject their tenants; and the first question that came up for decision at the trial was whether the villages in question were portions of an estate within the definition of the Madras Estates Land Act. under Section 3 of that Act an 'estate' means 'consisting of one or more villages of any of the estates specified in Clause (a) which is held on a permanent under-tenure '. The three villages concerned in this suit, Goteru, Surampudi and Komara-varam are admittedly situated within the ambit of the Zemin-dari of Nuzvid. They were in existence before the Permanent Settlement of 1802. The District Munsif was of opinion that they were even more ancient than the zemindari in which they are situated. The question whether they are held on a permanent under-tenure from the Zemindar must depend on whether the revenue from these mokhasas was taken into consideration in computing the assets of the Zemindari at the time of the Permanent Settlement. As the question of the Civil Court's jurisdiction over these suits has been raised, we have no alternative but to decide it in these proceedings even though the question whether the land was or was not excluded from the assets of the Zemindari may resemble a question of fact. No Court can confer jurisdiction on itself by wrongly deciding facts necessary to be proved to determine a question of jurisdiction.
2. A similar question came up for decision in Lakshminara-simham v. Veerabhadrudu (1923) 19 L W 671, and it was decided therein that certain other mokhasas situated in the same Zemindari of Nuzvid were part of an estate as denned in Section 3, (e) of the Madras Estates Land Act and that a suit by a landholder mokhasadar against his tenants would lie. only in a Revenue Court. We are informed that that decision is at present under appeal to His Majesty in Council. In any case the question has to be freshly decided in these appeals upon the records available and on the evidence taken at the trial.
3. I may first refer to the Fifth Report from the Select Committee on the Affairs of the East India Company which in Appendix No. 18 contains the instructions issued in 1799 to Collectors in the Presidency of Fort St. George for the permanent settlement which was carried out in 1802. The Government set out the object of making the settlement as constituting the Zemindars proprietors of their respective zernindaries as estates, fixing the jumma or land tax in perpetuity, abolishing all uncertainty of the amount and all disorder and confusion in the collections, removing opportunities for exaction and collusion and simplifying intricacies in the details of the revenue business. The Government state in paragraph 17 that they have resolved to adopt statements of the Circuit Committee as the general standard and in other paragraphs they announce their intention of fixing the assessment, exclusive and independent of all duties and taxes and other collections known as 'Sayer', including Abkan or tax on the sale of intoxicating liquor, and excluding the salt revenue and independently of all existing alienated lands, whether exempt from the payment of public revenue, with or without due authority (the village maniams, or land held by public and private servants in lieu of wages, excepted). Then in paragraph 16 they state:
All allowances of cauzees and Government revenue officers (curnums excepted) heretofore paid by landholders, as well as any public pensions hitherto paid through the landholders, are to be added to the amount of jumma, and to be provided for by Government, under prescribed regulations.
4. In paragraph 25 they state:
All private lands at present appropriated by the Zemindars and other landholders to the subsistence of themselves and families, as well as all lands held by private servants and dependents, will be considered as forming part of the Circar land, and therewith responsible for the public jumma.
5. It may be seen from this that the only allowances of Revenue Officers excepted were those of Karnams. In Regulation XXV of 1802, which introduced the Madras Permanent Settlement, Karnams were specially provided for. under Section II they could only be removed from their offices by a Court of Judicature; and Regulation XXIX of 1802, which was enacted simultaneously, contained a similar provision in Section 5. The object of the Government in so providing for the Village Karnams apparently was that the services of these village officials were necessary after the introduction of the Permanent Settlement for Government purposes as well as for those of the Zemindar, and they had a duty to render to both masters in keeping correct accounts of the cultivation and the payment of assessment.
6. The three villages of Goteru, Surampudi and Komara-varam were held as Deshmuk or Deshpandya mokhasas. These Deshmuks or Deshpandyas were originally collectors of revenue under the Zemindars. After the Permanent Settlement the Government would naturally look only to the Zemindar for the realisation of the revenue due to them and would have no necessity to retain any officials to collect the revenue for them from the cultivators of the land. In 1860 the Government entered into an enquiry whether the mokhasa villages in the Masulipatam Division of the Kistna District were resumable, and in this connection Mr. Taylor, the Inam Commissioner, sent a report filed as Ex. III. He reported that 'these mokhasas 208 112 in number were grants made by the ancient Zemindars to their relations, dependents or caste-men and peons,' He added:
Some mokhasas are likewise held by Mazumdars and Deshpandies, the former revenue servants of the Zemindars, who have long ceased to perform any service.
7. His report goes on to refer to the statements prepared by the Circuit Committee, the Special Commissioner's report on the Permanent Settlement of the Nuzvid and Charamahal zemindaries and the statement accompanying it; and he comes finally to the conclusion that the contention of the Zemindar that the revenues of these villages were included in the assets of the zemindari was correct. He observed that there was no ground for classing these mokhasas with lakhiraj lands excluded by the sanad. The Board of-Revenue and the Government agreed with Mr. Taylor and the question of claiming reversionary right to the villages was dropped.
8. Now Ex. YYYY referred to in Mr. Taylor's report shows these three villages of Goteru, Surampudi and Komara-varam with their average revenue. The total average revenue of all these villages for 8 years comes to pagodas 22,101, fanams 20 and cash 12 3 8. This figure appears again in the abstract Ex. XXI (b) under the head of the Nidadavole Phargana and the foot-note states:
The mokhasa villages and grants being immediately under the Zemindar and given or resumed when he pleases are included in Government collections.
9. Ex. YYYY (1) is a statement of receipts of revenue for four years from Fasli 1205 to1208 corresponding to 1794 to 1798. This shows that the average receipt per annum was 909 Madras pagodas, and 15 fanams from which a deduction of 834 Madras pagodas and 12 fanams is made as payment-made by the Mirasidars to the Circar leaving 7c Madras pagodas and 3 fanams as net receipt by the Mirasidars per annum. The learned District Munsif was of opinion that Mr. Taylor made a mistake in thinking that the full value of the mokhasas was included in the Government collections. He thinks that the fact that the mokhasadars retained 75 pagodas as remuneration for their offices makes all the difference. There is no doubt that these 75 pagodas formed the average perquisites of Deshmuks or Deshpandyas and that they were service-holders in that respect. But there is nothing on record to show what was done with these 75 pagodas. If this sum represented their remuneration for collecting revenue, the instructions of the Collectors were not to exclude it from the assets because it represented the allowances hitherto paid by the landholders and in future to be provided for by Government. In Rajah Nilmoni Singh Deo v. Government (1866) 6 Suth W R 121 Sir Barnes Peacock, C.J. of Bengal, observes that Government would not have allowed any portion of their revenue in consideration of private services to be rendered to the Zemindar, and this observation was repeated in the judgment of the Judicial Committee in Rajah Nilmoni Singh v. Bakranath Singh (1882) L R 9 I A 104.
10. The Lower Courts referring to Section 4 of Regulation XXV of 1802 have endeavoured to class these mokhasas under the head of lakhiraj lands or other lands paying only quit rent. Mr. Ramadoss argued that the amount of quit rent would include anything less than the full assessment and that the amount might vary according to the grant. He referred us to Veerahhadrayya v. Sonti Venkanna : (1913)24MLJ659 which was a case of an inam excluded from the zemindari assets at the time of the Permanent Settlement which was consequently not an estate within the meaning of Section 3 of the Madras Estates Land Act. This is begging the question which has to be decided. There is no doubt that if an agraharam or mokhasa is excluded from the assets of the zemindari it is not an under-tenure; but from the documents already referred to it is clear that these mokhasas continued to be part of the zemindari estate after the Permanent Settlement was brought into force. In Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Row Bahadur I.L.R. (1905) M 52 the Judicial Committee observe that the records of the Circuit Committee could not affect the rights as between the mokhasadars and the Zemindar but they, however, agreed with the High Court in thinking that they might be good evidence with reference to the system upon which the Government claimed to deal with the Zemindar's property, and it is that question that has fallen to be decided in the present cases. As there appears to be no doubt that the mokhasas in question owned by the plaintiffs in these suits were not excluded.at the time of the Permanent Settlement from consideration in computing the assets of the zemindari it follows that they are still held on a permanent under-tenure of the Nuzvid zemindari and therefore these suits are by Section 189 of the Madras Act I of 1908 excluded from the jurisdiction of the Civil Courts. It may follow incidentally that under Section 6 of that Act the persons in occupation of ryoti land have acquired permanent occupancy, but this is not for us to decide in the present appeals. Nor is it necessary in these proceedings to make any pronouncement whether the Zemindar has a subsisting right to resume these mokhasas seeing that the Zemindar is not a party and the point does not directly arise.
11. The appeals are allowed and the decrees of the District Munsif and the Subordinate Judge are reversed and the District Munsif will be directed to return the plaints to the plaintiffs for presentation in a Court having jurisdiction to try the suits.
12. The appellants will get their costs from the respondents throughout.
13. The same question arises in all these appeals. I agree with the judgment just pronounced by my learned brother, but as we are differing from both the Lower Courts, 1 will add a few observations of my own. The learned District Munsif proceeded on the assumption that Mr. Taylor overlooked the fact that the amount retained by the mokha-sadars as remuneration for their office was excluded from the computation [e. g., Ex. YYYY (1) ] and it was that that made all the difference. The learned Subordinate Judge agreed with this view, namely, that only the jodi payable to the Zemindars was taken into account in fixing the peishcush. Both the Courts seem to have proceeded on the view that, because these mokhasa villages were probably earlier in date than the existence of the zemindari in which they are admittedly situated, therefore they must necessarily be excluded from the zemindari and are therefore not estates within the meaning of the Madras Estates Land Act. It seems to me equally probable that, although these villages may not strictly be grants by a Zemindar to their relations or dependents and all we have to go by is the recital in Ex. YYYY (1) that these villages have been in existence for 400 years when the zemin-dari came into existence these villages were adopted so to speak by the Zemindar as under-tenures from him and almost certainly with the duty of service attached to them on the part of the mokhasadars. There is evidence in this case that the services required from these mokhasadars were Deshmuk. The villages were so described in Ex. YYYY (1) and the mokhasadars are described as Deshpandyas or collectors of revenue under the Zemindar. It seems to me, therefore, that we have a case of mokhasa villages practically in the position of grants of inams for personal service, and if that is so, Sri Raja Parthasarathi Appa Rao Bahadur v. Secretary of State I.L.R. (1913) M 620 is authority for the position that: prima facie these villages form part of the estate of the zemindari and are resuma-ble by the Zemindar and not by Government.This is the opinion of Mr. Taylor in the Proceedings of the Madras Government, 1860, Ex. III, and it seems to me that we ought not lightly to put aside this opinion which was adopted by Government, Ex. IV, following as it did the conclusions of the Circuit Committee. The argument on the other side depends on the table in Ex. YYYY (1) which shows that the total average receipts from these three villages were 909 Madras pagodas per annum, of which 834 was the amount paid by the mokhasadars to the Circar and the balance 95 pagodas is classed under the heading of ' Net Receipts by the Mirasidars per annum. ' It is contended by Mr. Ramadoss for the respondents in accordance with the judgments of the Lower Courts that we must take 834 pagodas as a favourable rent and therefore as outside the operation of Section 3(e) of the Madras Estates Land Act. It seems to me to be equally arguable that of the total collection of 909 Madras pagodas 834 was the rent actually payable in cash and 75 was the rent received by or payable to the Zemindar in kind; that is to say, that 75 pagodas was allowed off the rents in respect of the services rendered by the mokhasadars. The Circuit Committee says that services are not to be excluded. [See Fifth Report by Firminger, page 174, paragraph 16, which are instructions issued by the Madras Government in October, 1799, when undertaking the Permanent Settlement, and in paragraph 17 it is stated that it had been resolved to accept the statement of the Committee of Circuit as the general standard]. Reference is made to the foot-note to Ex. XXI (b), an abstract of the revenue collections taken by the Circuit Committee, namely, that the mokhasa villages and grants being immediately under the Zemindar and given or resumed when he pleases are included in Government (therefore Zemindar's) collections. The revenue retained by the present mokhasadars after payment of the usual proportion is 8362 Madras pagodas, 17 F. 65 C. That is dealt with by Mr. Taylor in paragraph 4 of Ex. Ill and he adds: 'This is also borne out by the villagevar accounts of the Circuit Committee.' There seems to us therefore to be no good reason why Mr. Taylor's Report and the Government Order thereon which have been frequently referred to and relied on by Courts in this Presidency [see for latest example Lakshmi-narasimham v. Veerabhadrudu (1923) 19 L W 671 should not be adopted. The investigation of the Circuit Committee took place about 1780, or 150 years ago. Mr. Taylor's report was 6$ years ago. These investigators and especially the Circuit Committee were a great deal nearer the origin of these zemindaris than we are to-day and no doubt information available to them which is no longer available to-day. in my opinion, therefore, the greatest weight ought to be given to these reports and opinions, and it seems to me impossible to say that from the fact that 75 Madras pagodas is shown as a receipt by the mirasidars,that the balance must be taken as favourable rent and that the former sum cannot be considered to be a service rent. Section 4 of the Madras Estates Land Act does not include service land at all. For these reasons, I am of opinion that the decisions of both the Lower Courts were wrong and the appeals must be allowed. I agree with the order proposed in this behalf by my learned brother.