1. Plaintiffs-respondents are ryots holding under 3rd defendant-appellant--a zemindar, who represents 2nd defendant, now deceased. First defendant is the Secretary of State. Plaintiffs' case is that their holding is mamool wet inam and has always been held as such without payment of rent or water rate. So long as the zemindar made the collection of water rate on behalf of Government, there was as between him and Government no necessity to ascertain the identity of the mamool wet lands, since he could simply deduct the amount corresponding with their total extent from the total sum otherwise payable by him. When, however, before Fasli 1312 he abandoned the collection, an ascertainment of the mamool wet became necessary; and owing to the incorrect information, which 2nd defendant's servants gave, Government, represented by 1st defendant, collected water rate from plaintiffs, which they were not liable to pay, since their land was mamool wet. They sue to recover the payments made under protest for fasli 1314. Their payments included not only the ordinary water rate, bat also the penal water rate imposed in consequence of their having taken water without application.
2. The foregoing represents plaintiffs' case as stated in their plaint, its foundation as regards both the ordinary and penal water rate being given as against 2nd defendant as his tortious act in giving incorrect information to 1st defendant. The Court of first instance, however, in its judgment (after remand), dated 21st September 1910, treated the claim against both defendants as res judicata in circumstances to be referred to; and the lower Appellate Court, holding that, there was no res judicata, treated it as based on Section 70, Indian Contract Act, observing that the 'zemindar had the benefit of the water for the rest of his lands to the exclusion of plaintiffs' inam' and presumably meaning that he had the benefit of plaintiffs' payment in consequence of the exemption of some part of the rest of his lands. It exonerated the 1st defendant, who is not a party to this appeal.
3. This, so far as the ordinary water rate is concerned, was a possible basis for the decision and may be regarded as covered by the very general issues framed. Moreover the grounds of appeal relating to the discrepancy between it and the pleadings have not been pressed as regards this part of the case. But, Section 70 being in question, 3rd defendant's objection that the finding of fact above referred to is not supported by, or has not been reached after consideration of, the evidence must be allowed. The Court of first instance, no doubt, after dealing with the case as one of res judicata, admitted all the evidence adduced, but it simply recorded its findings without discussion of it or reference to Section 70; and the lower Appellate Court found, as stated above, also without applying its mind to the evidence in detail and without attempting to decide whether it did or did not support its assumption that the zemindar had in fact been exempted from liability to an extent corresponding with the payment made by plaintiffs.
4. It is conceded that Section 70 cannot justify plaintiffs' claim in respect of the penal portion of their payment and that it must be supported as one for compensation for the result of 2nd defendant's improper conduct. Neither of the lower Courts has dealt separately with this part of the case. As regards it also there must be a remand for a finding on fresh issues.
5. The question is next, whether the dispute between the parties or any part of it is res judicata. The facts are that plaintiffs sued 1st and 2nd defendants in Original Suit No. 431 of 1903, on allegations similar to those now before us for (1) a declaration that their holding was mamool wet inam, (2) refund of water rate paid under protest for Fasli 1312. Reference to the decree in the printed papers in this Court shows (what Exhibit A, the judgment, leaves obscure) that both reliefs were granted against 1st defendant, but only the first against 2nd defendant, the suit against him for the second being dismissed without costs. This result was not affected by the appellate judgments, Exhibits-B and CC, plaintiffs' memorandum of objection against 2nd defendant having been filed after Exhibit A had become final. In these circumstances Exhibit A is prima facie an adjudication in 2nd defendant's favour, if not as to the nature of the holding, at least as to his obligations in respect of it. Plaintiffs' argument is then that incidentally to this disposal of their claim the matter in dispute was not heard or determined. They have not relied on the reasons adopted by the lower Appellate Court.
6. Firstly, as regards the nature of the holding, I have pointed out that the declaration claimed by plaintiffs was given against both defendants; and, though plaintiffs have not so far pleaded res judicata, the fact will be important, when the issues remanded are dealt with by the lower Appellate Court. At present the material facts are that, though Exhibit A, paragraph 17, contains the finding in plaintiffs' favour, it was expressed in paragraph 12 only as follows: 'Although I am prepared to find it proved that plaintiffs' holding is a wet inam, I think that it would be enough to find that the land is immemorial wet...in other words, plaintiffs have an easement right by grant or proscription to irrigate these fields...when, therefore, the Government agreed with the zemindar, etc.,...it should be taken to contract with him as representing all concerned, that the new source shall be subject to all their customary rights.' This I understand to mean (1) that, though the land was inam, that fact and the possible responsibility of the zemindar for its irrigation were not material, because (2) it was mamool wet and entitled to receive water from Government on that ground. The Court adopted the second of these grounds and (perhaps becauso a decree against Government was considered by it a sufficient relief) refused to adopt the first as the basis of its decision.
7. The remainder of the judgment agrees with this,--since there is nothing in the ascertainment of the duties of the parties, which follows, inconsistent with the disposal of the case on the footing that land is ordinary mamool wet, not wet inam in connection with which the zemindar might be under special liabilities. Though, as stated, there is a finding in paragraph 17 that it is wet inam, the other finding, that the collection of water rate was wrong, relates only to the act of Government. In the circumstances the decision must be that the Court declined to adjudicate on 2nd defendant's conduct and that there has been no determination of the claim relating to it.
8. The result is that there must be a remand on the basis that the character of the land, as mamool wet inam is rea judicata, against 3rd defendant in consequence of Exhibit A, against which 2nd defendant did not appeal, The following issues must be tried:
1. Whether in consequence of plaintiffs' payment 2nd defendant was exempted from any liability for water rate and was benefited and (if so) to what extent?
2. Whether penal water rate, was levied from plaintiffs in consequence of any wrongful or negligent representation to 1st defendant by and defendant or his servants, and (if so) whether 3rd defendant is hound to compensate plaintiffs and to what extent?
3. To what reliefs are plaintiffs entitled?
9. Fresh evidence may be adduced. The finding should be submitted in six weeks from the re-opening of the Court. Seven days are allowed for objections.
10. The plaintiffs are holders of land in the 2nd defendant's zemindari which, is a portion of the Nuzvid Instate. Their suit is against the Secretary of State and the zemindar (the 1st defendant and the 2nd defendant's representative respectively) for a declaration that the plaintiffs are not liable to pay any water cess on the lands in their occupation, and for recovering back from the defendants the water cess levied from the plaintiffs at a penal rate.
11. It is not contended before us that the plaintiffs have any cause of action against the Secretary of State. For it is admitted the Government were entitled to recover from the plaintiffs the water cess, even though as between the plaintiffs and the zemindar no water cess may be due from the particular plots of land in the occupation of the plaintiffs. The lower Appellate Court has, however, decided against the zeminiar and held that he is liable to refund the payment made by the plaintiffs.
12. It is argued for the zemindar in this appeal that the decree against him is erroneous, on the ground that there was no cause of action disclosed as against him, and that in any case the matter is res judicata between him and the plaintiffs. With reference to the later contention it is admitted that there were suits between the same parties in which the liability of the zemindar on the same basis as in the present case was directly hi issue. The lower Appellate Court held that the decrees in those suits did not operate so as to make the question involved in the present suits res judicata; 'First, because the said judgments relate to different Faslis i.e., the plaintiffs' claim for Faith's 1311 and 1312, which was prior to Faslis 1314 to 1318; and secondly, because the cause of action for the present suits is also different.' The learned Pleader who appeared for the respondent did not rely upon these reasons for contending: that the matter was not res judicata, owing to the decision reported in Bommidi Bayyan Naidu v. Bummidi Suryanarayana 23 M.L.J. 543.
13. The argument before us, however, was that in the previous suits, as a matter of fact, there was either no adjudication on the point at all, or, if there was, then it was in favour of tiie plaintiffs.
14. On referring to the records of the pervious suits and appeals arising therefrom, it is found that the District Munsif in the Court of first instance decided the suits in favour of the plaintiffs; in doing so he purported 'formally to record findings on the issues in favour of the plaintiff's.' He seems to have considered the liability of 2nd defendant in the preceding paragraph of his judgment where he says, 'on behalf of the 2nd defendant a curious argument was advanced.... The argument is advanced only for the purpose of this suit and is not bona fide;' his decree embodied a declaration that the lands were mamool wet inam, which was a relief against the 2nd defendant also; and he made the 2nd defendant bear his own costs, though the decree was otherwise only against the 1st defendant. Holding that the cess was not due on the lands, he held as a consequence that the plaintiffs were entitled to recover back the payments made by them. As the plaintiffs were not entitled to get the money twice over, and also perhaps because there was no question that if the Government were bound to re-pay the money they would re-pay it, his decree for re-payment of the cess was only against the Government who had actually received the payment.
15. From the Munsif's decree, that the lauds in question wore mamool wet, that the 1st defendant should refund the payments made by the plaintiffs, and that the 2nd defendant should bear his own costs, there were appeals and cross-objections. The Subordinate Judge in appeal said; 'That being the case it is clear that as against the 2nd defendant plaintiffs are entitled to get water for their land free of charge. If the zemindar, who was bound to include the extent of the plaintiffs' holding within the 120 and odd acres allowed in his favour by Government for irrigation free of charge, failed to do so, the fault was his and it seems to me that plaintiffs must look to him for the redress of their grievances so far as the Government are concerned. I fail to see how they are to blame for charging water rate from plaintiffs, because it is not plaintiffs' case that they have entered into any engagement with the Government by which they are entitled to irrigation free of charge. Under these circumstances the first Court was not right in directing the Government to refund to plaintiffs the water rate collected from them. I decide on the first point that since 1839 the plaint land has been enjoyed as mamool wet inam exempt from water tax, but that the 1st defendant is not liable for plaintiffs' claim. I need not record any finding on the 2nd point, as the High Court had not made the 2nd defendant liable and the plaintiffs memorandum of the objections in Appeal Suit No. 198 of 1901 asking for the 2nd ' defendant also being made liable was presented out to time. The plaintiffs were served with notice of Appeal Suit No. 198 of 1905 on the 9th December 1905, and their objection memorandum was filed in Court only on the 25th November 1906.'
16. The decision of the Subordinate Judge was, therefore, that the plaintiffs were barred by limitation from asserting their rights against the 2nd defendant in the Appellate Court. There was a second appeal (Second Appeal No. 1735 of 1908) from the appellate decree and the second appeal was dismissed.
17. Apparently, therefore, the only questions that can be considered to have been decided by the Courts in the litigation culminating in Second Appeal No. 1735 of 1908 were (1) whether the 1st defendant was liable to round the cess and (2) whether a decree for payment could be given against the 2nd defendant or whether the plaintiffs' cross-objections were out of time. The 2nd defendant's liability with reference to the previous Faslis was not really adjudicated upon: by the Munsif because in his view it was unnecessary, by the Appellate Court because the plaintiffs had not taken cross-objections in time. Giving its full force to the decision of the Appellate Court, we have no adjudication upon the points now arising.
18. Under these circumstances, to I sold that the question of the liability of the 2nd defendant to refund the water cess in respect of the Faslis 1314-1318 is res judicata, would be a denial of justice based on a fiction which is directly at variance with the facts, and which is not based on the principle underlying the doctrine of res judicata: that principle for the present purposes may he stated to be that neither the Courts nor the parties should he permitted to be harassed by the same question being repeatedly brought up for adjudication. It has been held that with regard to the previous Faslis the plaintiffs had forfeited the right to have their rights determined by the Courts. That is no reason why they should be placed under a similar disability in regard to the latter Faslis, though the reason for the forfeiture is absent. This is in accordance with the decisions of Chunder Coomar Mitter v. Sib Sundari Dassee 11 C.L.R. 22; Nilvaru v. Nilvaru 6 B.k 110; Gungabishen Bhagat v. Raghoo Nath Ojha 79 C.L.R. 34; Balkiskan v. Kishan Lal (1889) A.W.N. 42 .
19. The next question is whether the plaint discloses any cause of action against the 2nd defendant. The cause of action relied upon by the plaintiffs is as follows: that the water cess which was levied from the plaintiffs was in fact due from other lands not in the occupation of the plaintiffs; that the 2nd defendant wrongfully represented to the 1st defendant that the lands from which water cess could he levied included the plaintiffs' lands: that by reason of such representation the plaintiffs were made to pay the water cess though the lands in their occupation wore not subject to the water cess: and that the said other lands were exempted from payment of the tax, which would not have been exempted had the 2nd defendant represented the true facts. If all these facts are established by the plaintiffs then, it would seem that the plaintiffs have made payments which the 2nd defendant was bound to make, under such circumstances that the plaintiffs would be entitled to be compensated by the 2nd defendant under Section 70 of the Indian Contract Act. In the alternative the plaintiffs' case may be stated to be that they have been compelled to make payments for the 2nd defendant (not intending to do so gratuitously), the benefit of which has been that other lands in which the 2nd defendant is interested have been exempted from payment of the water tax: this benefit has been enjoyed by the 2nd defendant; and in respect of it the 2nd defendant is bound to make compensation to the plaintiffs.
20. See Wilson v. Glossop (1888) 20 Q.B.D. 354 and Mohendra Ghoshal v. Bhuhan Mardana 6 Ind. Cas. 810.
21. The plaintiffs, however, claim to recover back from the zemindar the whole of the water cess paid by them to the Government, and that was levied at a penal rate.
22. The question, therefore, will also have to be considered whether the plaintiffs had any cause of action in respect of the sum which they had to pay as a penalty. That question would depend upon whether such extra sum can be considered to be damages arising out of the facts above referred to.
23. On none of these questions have the lower Courts given any express findings.
24. There are no findings on which we can proceed with reference to the questions-
(1) whether the 2nd defendant represented to the 1st defendant that the land referred to in the plaint did not form part of the lands exempted from payment of water cess; and if the answer to this question is in the affirmative,
(2) whether the 2nd defendant obtained an exemption from payment of the water cess which would have been due on other lands had he not made the said misrepresentation.
(3) Whether the penal rate of water cess was levied from the plaintiffs by reason of any act or omission on the part of the plaintiffs themselves which they ought to have done or abstained from doing.
(4) Whether even if the misrepresentation above referred to had not been made by the 2nd defendant still the plaintiffs would have become liable to pay water cess, at a penal rate; and
(5) Whether if the 2nd defendant had not made the misrepresentation referred to in the first issue, then the penal rate of water cess would, in the events that have taken place, have become due from lands other than those referred to in the plaint, and would have been payable by the 2nd defendant.
25. It seems necessary, therefore, to send the case back for findings on the issues, which are mentioned in my learned brother's judgment.
26. In compliance with the above order of this Court, the Subordinate Judge of Kistna at Ellore submitted the following
27. I am directed to submit my findings on the following issues:
(I) Whether in consequence of plaintiffs' payment the 2nd defendant was exempted from any liability for water rate and was benefited and (if so) to what extent?
(II) Whether penal rate was levied from plaintiffs in consequence of any wrongful or negligent representation to the 1st defendant by the 2nd defendant or his servants and (if so) whether the 3rd defendant is bound to compensate the plaintiffs and to what extent?
(III) To what relief are the plaintiffs entitled?
2. The plaintiffs Nos. 2 to 6 are the sons of 1st plaintiff. It appears from the evidence of 1st plaintiff as P. W. No. 1 that no water tax was levied from him in respect of the suit inam prior to Fasli 1812. It is alleged on behalf of plaintiffs, and not denied by the 3rd defendant, that prior to Fasli 1312 the zemindar (2nd defendant) used to pay to Government (1st defendant) water cess on all the lands in the village of Rajuputa, after deducting 120 acres of mavwoi wet area That the suit land of 11 acres 30 cents was also included in the said extent of mamool wet area is clear from Exhibit E, dated 16th November 1895. Exhibit E1 is tin account prepared by the 2nd defendant's karnam for Fasli 1305 and bears the signature of the then Tahsildar. With reference to Exhibit F, the present Tahsildar as D.W. No. 1 deposed tint the suit inam (land) is shown as inamool wet in Exhibit E1 and that no application for water is necessary in the case of mamool wet lands recognised as such by the Collector and the Hoard. Till Fasli 1312, it is conceded by the zemindar himself that no water cess was levied from plaintiff in respect of the suit land as it was treated as a part of the inamool wet allowed to the zemindar. In other words, the extent of the mamool wet area of 120 acres included the suit land which, however, was shown in the accounts of the zemindar as a darimila inam without patta (vide Exhibit DD and also Exhibit IV).
3. It is next seen from the accounts (Exhibits D, E, F, F1) that prior to Fasli 1312 the zemindar (2nd defendant) used to apply for water for the whole village of Rajupeta and was paying water tax to Government (1st defendant) on irrigated area in excess of the mamool wet of 120 acres including the suit inam. In other words, prior to Fasli 1312 the zemindar (2nd defendant) acted as agent of the Government (1st defendant) to supply water for the whole village and that in consideration thereof received a commission of 10 per cent, (vide paragraph 3 of the 1st defendant's written statement). But in Fasli 1312 the 2nd defendant having met with obstacles in the collection of water cess from the tenants put an end to his commission contract and relinquished water for the whole village. The 1st defendant accepted the relinquishment (vide paragraph 3 of 1st defendant's written statement).
4. Exhibits G and H as also Exhibit J show that in the suits (Original Suit No. 126 of 1895 and 1372 of 1896) brought by the zemindar against plaintiffs for the recovery of gattuthumulu and other dues for Faslis 1295 to 1305, the zemindar's claim was disallowed and the suits were dismissed on the ground that the land was granted as a rent-free inam and that the inamdar was not liable to pay gattuthumulu and other cesses. According to the evidence of D.W. No. 2, gattuthumulu of old is the same thing as water cess of the present day. Relying upon the Court's decisions evidenced by Exhibits G, H and J, the 2nd defendant in paragraph 4 of his written statement contended that if the suit land is an old sarvadumbala inam he has no concern whatever with it. In paragraph 6 of his written statement the 2nd defendant further contended that the suit land nut being' treated by Government as mamool wet, it was not open to plaintiff to get separately localized his darimila inam as part of the mamool wet allotted to the zemindar.
5. The plaintiff's case is that so long as the zemindar made the collection of water cess on behalf of Government, there was as between him and Government no necessity to ascertain the identity of the mamool wet lands, but that before Fasli 1312 when 2nd defendant abandoned the collection, it became necessary for plaintiff to apply to the Settlement Deputy Collector to localize the mamool wet and that accordingly he put in a petition before the Settlement Officer on the 17th November 1901. This petition has been filed on defendant's behalf as Exhibit XIV (a) which shows that because the zemindar's officials wanted to exclude the suit inam from the extent of mamool wet allowed for the village, the plaintiff applied to the Deputy Collector to include his land in the extent of mamool wet allotted to the zemindar. Exhibit GG, dated 13th January 1002, is a certified copy of 1st plaintiff's statement in the matter of the mamool wet enquiry held by the Deputy Collector, Mr. P. Nageswara Rao D.W. No. 2. Exhibit GG. read along with Exhibit XIV (a) shows that the zemindar was claiming the suit land as being included in the mamool wet under the head 'seri' and that, therefore, 1st plaintiff requested the Deputy Collector to separately localize the darimila inam as mamool wet. Exhibit HH, dated 14th January 1902, contains the zemindar's protest to the effect that the suit land cannot be converted into mamool pallam (wet), because it was a darimila inam and registered as such in the accounts of the estate. The Deputy Collector's order is evidenced by Exhibit EE, dated 5th February 1902, and it is to the effect that as the zemindar protests against the separate localization, the petitioner's (1st plaintiffs) request cannot be complied with. In other words, the 1st plaintiff's request for separate localization was refused by the Deputy Collector (D.W. No. 2) in consequences of the 2nd defendant's protest contained in Exhibit HH, dated 14th January 1902. The question then arises whether 2nd defendant was justified in protesting against the separate localization of the plaintiff's land? The Deputy Collector (D.W. No. 2) states in his deposition. Before this Court that if at the time of the settlement the zemindar instead of protesting had asked him (D. AY. No. 2) to include the suit land as mamool wet, he would have done so only if it was a darimila inam. But the zemindar's contention that the suit land is a darimila inam and that plaintiffs were liable to pay water-cess in respect of the suit land, was found to be not true in Original Suit No. 126 of 1895 and 1372 of 1896 and this finding was confirmed in Appeal Suits Nos. 238 and 240 of 1899 (vide Exhibits G and H). Exhibit G shows that 1st plaintiff, who was defendant in the said suit, pleaded inter alia that the suit land was not a part of the zamindars seri land but is a sarcadumbala in am granted to plaintiff's ancestors by defendant's ancestors prior to Fasli 1200. This plea of plaintiffs was upheld both in the Court of first instance and also in the Appellate Court (vide Exhibits G and H referred to above). The question as to the character of the suit land being mamool wet and that it is a pre-settlement inam as alleged by plaintiffs and not a post-settlement inam as contended by defendants Nos. 2 and 3 has, therefore, become res judicata between plaintiffs and defendants Nos. 2 and 3. Such being the case, it was not open to 2nd defendant in the face of the above-mentioned finding to contend that the suit land was a darimila inam before the Deputy Collector, at the time of the mamool wet settlement enquiry by him in 1902. No doubt the 2nd defendant's contention was wrong with reference to the decisions evidenced by Exhibits G and H referred to above. But the the real point is whether 1st plaintiff was right in asking the Deputy Collector to localize the suit land as part of the mamool wet alloted to the zemindar unclerthe head seri. This was in effect the prayer of the plaintiffs in Exhibit XIV(a). The answer to this is furnished in paragraphs of 2nd defendant's written statement, The 2nd defendant's answer is that inasmuch as the suit laud was decided to be an old sarvadumbala inam in the litigation set forth in paragraphs 6 and 10 of the plaint, the plaintiffs have no right to include the suit land in the extent of the mamool wet allotted to the zamindar. In other words, the suit land having been declared to be a pre-settlement inam by the Civil Courts, it was not open to plaintiffs to treat the same as darimila or post-settlement inam and include it in the mamuol wet area allotted to the zmindar. The proper course open to plaintiffs was to ask the Collector to determine the suit land as mamool wet and to obtain a title-deed immediately after the result of the litigation evidenced by Exhibits G and H.
6. With reference to the observations made in the foregoing paragraphs, I proceed to record my findings on the issues 1 and 2 upon the evidence now adduced after remand and also upon the evidence on record before remand. The payments made by plaintiffs are evidenced by Exhibit AA series which relate to Faslis 1312 and 1313. In the present case, the zemindar (2nd defendant or 3rd defendant) had no interest in the suit land at the time of plaintiffs' payment. This is clear from Exhibits G, H and J (vide also Exhibit CC). The liability under Section 1 of the Irrigation Cess Act (VII of 1865) is on the suit land. The suit land belongs admittedly to plaintiff. The plaintiff's case has been all along that the suit land is a pre-settlement inam, while 2nd defendant's contention was that it was a darimila or post-settlement main. As between plaintiff and 2nd defendant it has been held that the suit land is a pre-settlement mamool wet inam, and not a darimila inam (ride Exhibits (G and H). No doubt the suit land, although decided by the Court to be a pre-settlement inam, the title-deed in respect of it was issued to plaintiff only in 1911. The delay in the issue of the title-deed was wholly attributable to plaintiff's negligence. The 1st plaintiff's explanation in Exhibit XIV(a), dated 17th November 1901, was that because he was a minor and because nobody represented him at the time of the inam commission enquiry in 1860, it was not possible for him to got the title-deed. In Exhibit GG, dated 13th January 1902, the 1st plaintiff's explanation was that although he had attained majority he did not make any attempt to get the title-deed. And in Exhibit C, dated 7th February 1905, the 1st plaintiff stated that his co-sharers obtained title-deeds but he did not, because he considered it unnecessary. The conduct of 1st plaintiff, as evidenced by Exhibits XIV(a), GG and C, clearly shows that he was not anxious to obtain a title-deed although the suit laud was declared to be a pre-settlement inam. The fact that on the strength of the description of the suit land as darimila inam in Exhibits XIV(a) and GG the 1st plaintiff wanted to get it localized as wet and included in the mamool area of 140 acres allotted to the zemindar, lends support to the respondent's Counsel's argument that the 1st plaintiff remained quiet without obtaining a title-deed because he wanted to avoid payment of the quit-rent. For after the suit land was declared to be not a darimila inam, there was no obligation on the part of the zeminrlar to apply for water on behalf of the inamdar of the ryois in the village (vide the evidence of D.W. No. 2). In other words, it was no concern of the zemindar to see to the supply of water for the suit laud which was declared to be a mamool wet pre-settlement inam. The plaintiff's case, as disclosed from the evidence of D.W. No. 1, is that the water tax for Faslis 1312 and 1813 was really payable by the zemindar (2nd defendant), first, because the suit land was wrongly excluded by him from the list submitted by him to Government and secondly, because the zemindar was benefited by reason of some other land of his being substituted for the suit land. As regards the first reason, neither the original list submitted to Government nor a copy of it has been produced. No doubt Exhibit VIII, as deposed to by D.Ws. Nos. 1 and 2, was in substance a relinquishment application for supply of water in respect of the suit land and certain other lands mentioned in Exhibit VIII. This application was put in long after the decision evidenced by Exhibits G and H as admitted by plaintiff, and it is argued for the respondent that 2nd defendant acted rightly because he had no concern with the suit land after the Courts found it to belong to plaintiff as a pre-settlement inam. In other words by Exhibit VIII, the 2nd defendant put an end to his commission contract to supply water and put in a relinquishment application. The Government (1st defendant), having accepted the relinquishment, called for water applications from st plaintiff (and other ryots), because there was no engagement between plaintiffs and Government in respect of the suit laud which, ceased to belong to the zemindar as his darimila inam, according to the decisions evidenced by Exhibits G and H referred to above. Next as to the second reason, that the zemindar has been benefited by virtue of some other land being substituted for the suit land, the 1st plaintiff's answer in his cross-examination is that he cannot say what that land is. According to the evidence of D.W. No. 3 the subsequent enfranchisement of the suit land in favour of plaintiffs as a mamool wet inam would not affect the 2nd defendant's mamool wet, because the suit land has changed its character. It cannot, therefore, be said that either Section 69 or 70 of the Contract Act has any application to the facts of this case. Section 69 cannot apply, as the zemindar was not legally bound to pay the water cess. And Section 70 cannot apply as the plaintiff, who paid the water-cess, did so on his own account and not on behalf of the zemindar. It cannot, therefore, be said that in consequence of the plaintiff's payments the 2nd defendant was exempted from any liability for water and was benefited. In other words, I find the 1st issue in the negative and against plaintiff.
7. With regard to the 2nd issue, penal water rate was levied from 1st plaintiff because he persistently refused to apply for water in Faslis 1312 and 1313. The 1st plaintiff had to pay the penal water tax because he failed to get the suit land determined as mamool wet, as required by Rule VI at page 4 of the Board's Standing Orders, Vol. II (Appendices). There was no wrongful or negligent representation to the 1st defendant by the 2nd defendant or his officers in putting in the relinquishment application as per Exhibit VIII. Under Exhibit VIII the zemindar ceased to be the agent to supply water to the inamdar and ryots in the village and they were called upon to make their own arrangements. There was nothing to prevent plaintiffs to make their own arrangements. The plaintiffs had three years' time between the date of Exhibit VIIL and the date of the first payment, as per Exhibit AA. It follows, therefore, that plaintiffs' paying the penal assessment cannot be said to be the result of the zemindar's relinquishment as per Exhibit VIII. Even supposing it were so, I hold upon the evidence that the act of 2nd defendant, as evidenced by Exhibit VIII, was not a wrongful or negligent representation to the 1st defendant by the 2nd defendant and that, therefore, 3rd defendant is not bound to compensate the plaintiff. I find the 2nd issue also in the negative.
8. It follows from my findings on the 1st and 2nd issues that plaintiffs have no cause of action as against 2nd or 3rd defendant and that, therefore, are not entitled to the relief sought with reference to the 3rd issue, which I find likewise in the negative.
28. Those second appeals and the memorandum of objections coming on for final hearing after the return of the findings of thy lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following