1. This appeal arises out of a suit on a mortgage of property situated within the East Godavari District. It is conceded that none of the property covered by the mortgage is situated within the Agency tracts. A preliminary objection was taken to the jurisdiction of the learned District Judge with reference to the terms of Section 5 of the Agency Tracts Interest and Land Transfers Act (I of 1917) which runs as follows:
Notwithstanding the provisions of any law to the contrary, every suit against a member of a hill tribe instituted after the commencement of this Act shall be instituted in the Courts of the Agency tracts.
2. It is conceded that the defendants are members of a notified hill tribe and ordinarily resident in the Agency, so that they come within the definition of 'hill tribe' in the Act. Reading Section 5 in its literal sense it would therefore appear that Courts other than the Agency Courts have no jurisdiction to deal with any suit against them whatever is the subject-matter of the suit and wherever it be situate. I am constrained to hold that this interpretation of the Act cannot be correct interpretation. In the first place, it results in the anomalous position that when a member of a hill tribe acquires land in the plains, no Court would have jurisdiction to entertain any suit relating to that land, for clearly the Agency Courts cannot by virtue of this Act be deemed to have acquired a local jurisdiction over properties situate outside the limits of the local jurisdiction of those Courts and inside the local jurisdiction of the ordinary-Civil Courts. Ordinarily speaking, under Section 16, Civil Procedure Code, a suit relating to immovable property including a suit for foreclosure, sale or redemption of mortgaged property must be instituted in the Court within the local limits of whose jurisdiction the property is situate. The law relating to the Agency tracts has no application to suits relating to rights in property situated outside the Agency. If therefore the Civil Courts of the Godavari District have no jurisdiction to deal with suits relating to immovable property, including mortgaged property, within their local jurisdiction, belonging to a hill tribesman, then no Court can try those suits at all. That is an absurd position which cannot be deduced from a statute unless the statute is quite plainly capable of no other meaning. Now, this Act is described as an Act to regulate the rate of interest and the transfer of land in the Ganjam, Vizagapatam and Godavari Agency tracts which are quite clearly nothing more than the scheduled areas included within the districts of Ganjam, Vizagapatam and Godavari. Section 4 indicates an intention in the Act to control^ the transfer of immovable property situated within the Agency tracts by a member of a hill tribe. There is no indication of any intention to control the transfer of immovable property situated outside the Agency tracts, but owned by a member of a hill tribe. Section 5 clearly indicates an intention that the personal liabilities of members of hill tribes resident within the Agency shall be decided only by the Agency Courts, but there is no clear indication that this section is intended to abrogate the ordinary powers of a Civil Court to deal with suits relating to immovable property situated within its jurisdiction merely because one party is a member of a hill tribe. Having regard to the fact that the interpretation of Section 5 as taking away jurisdiction from the ordinary Civil Courts over immovable property with reference to which no jurisdiction exists in any other Court, would result in a denial' of justice and the existence of a wrong without a remedy, I am of opinion that we must interpret Section 5 as intended to relate only to suits which are within the cognisance and jurisdiction of an Agency Court. Applying the section as so interpreted to the present case, it follows that the Court of the District Judge of East Godavari has jurisdiction to entertain the suit so far as it is a suit relating to immovable property, though the personal remedy against the mortgagors is one which may with reference to the terms of Section 5 be pursued in the Courts of the Agency.
3. There is, however, another objection, namely, that the defendants come within the exception to the definition of 'hill tribe' in that they are landholders as defined in the Madras Estates Land Act. The learned District Judge has rejected this plea on the ground that Ex. I, the instrument confirming their status as mittadars itself affords sufficient proof that the first defendant is not a landholder within the meaning of the Madras Estates Land Act. I have been through Ex. I and I am unable to find in that document the proof to which the learned District Judge refers. It is however desirable that evidence should be taken on this question. If as a result of that evidence the learned District Judge is of opinion that the first defendant is not a landholder, then the plaintiff must be referred to the Agency Court for his personal remedy against the first defendant and the District Judge will proceed only with the trial of the mortgage claim proper. If the finding regarding the position of the defendants as landholders is such as to exclude them from the provisions of the Act referred to, the learned District Judge can dispose of the whole of the suit.
4. The appellant will be entitled to his costs in this appeal including the costs of the Court-guardian. Costs in the lower Court to be provided for in the decree of that Court.