Venkataramana Rao, J.
1. The appellant in these appeals - the plaintiff in the Court below-is the Zamindar of Khallikote and Attagada Estates in the District of Ganjam and the respondents, the defendants in the Court below, are his ryots. The suits arise out of a settlement of rents carried out under Chapter XI of the Madras Estates Land Act. By an order dated the fourth of September, 1923, the Local Government directed a settlement of rents in respect of 71 villages in the plaintiff's estate under Section 168(1) of the said Act. A survey and preparation of a record of rights under Sections 164 to 166 had preceded the sanction of the settlement of rents. The special Revenue Officer proceeded to settle a fair and equitable rent for the lands in the villages specified, in accordance with the rules made by the Local Government under Section 215 of the Act. Though the officer followed almost identical lines in settling the rents of all these villages, yet owing to events which happened subsequently and will be mentioned later, it is convenient to divide the villages we are concerned with in these appeals into two distinct groups, one group consisting of 14 villages and the other of 51 villages.
2. In respect of the first group, the Revenue Officer published draft rent rolls on 21st June, 1924. The method of settlement followed by him was necessarily based on the prevailing system of rent collection in the estate (which differs considerably from that prevailing in other parts of the presidency) known as khostgutta system, the chief incidents of which are : (1) in theory, the landlord is entitled to half the gross produce but (2) in practice however, rent is not collected in kind from each ryot but a single cash demand is fixed annually in respect of the lands in the whole village and a single joint muchilika obtained from the leading ryots. 'All khost muchilika lands in each village form a single holding over which a rent is annually settled between the zamindar and the ryots according to the estimated gross produce thereon.' The settlement of rents on these lands by the Revenue Officer consisted merely of a commutation of grain rents into cash rents and apportioning the total cash rent on the several lands on which they were due; the apportionment being made 'in an equitable manner with reference to the nature of the soil, the advantages of irrigation, etc., possessed by each field and all other considerations mentioned in statutory Rule 18'.
3. Several objections were preferred against the draft proposals of the Revenue Officer under Section 169 of the Act by the landholder and the pyots. Only two'of such objections are relevant for the purpose of the present appeals. The landholder's objection was this. As a result of the survey it was found that the actual extent of lands in a village was greater than the extent mentioned in the khost muchilika for that village. The Revenue Officer divided and distributed the consolidated rent according to the muchilika over the whole area as surveyed on the ground that:
From the terms of the khost muchilika it will be seen that the rent taken on the whole set of khost muchilika lands in each village was a consolidated one in respect of the said set of lands.
4. The landholder on the other hand wanted the total rent to be treated as the rent for the estimated areas mentioned in the muchilikas and the excess area found on survey to be assessed in addition. The objection of the ryots related to what are described as 'Choppamani lands' in the possession and enjoyment of certain artisans, purohits, etc., who paid no rent but were performing services to the village community in general. According to the ryots such lands were included in the area for which a rent was fixed in and by the khost muchilikas but the Revenue Officer proceeded on the footing that they were not so included and assessed the lands to rent though at favourable rates. The Revenue Officer by his order dated 19th November, 1924, overruled both the objections.
5. The landholder and the ryots preferred appeals under Section 171 of the Act to the Board of Revenue (which was the superior Revenue Authority prescribed by the Local Government). In respect of 14 of the villages, the appeals were heard by one of the members of the Board of Revenue, the then Commissioner of Land Revenue and Settlement, Dewan Bahadur T.Raghaviah pantulu, and disposed of on 8th October, 1925. He confirmed the Revenue Officer's decision on the objection as to 'Choppamani lands' on the ground that they were excluded from khost muchilikas but reversed the officer's decision on the landholder's objection and held that the correct way to arrive at a fair and equitable rent for a holding was to divide the consolidated village rent demand by the estimated extent of ryoti land and not by the actual measured area.
6. The appeals in respect of the other group of villages happened to be heard by a different member, Mr. Mac Michael who in his order dated 7th December, 1925, completely differed from Mr. Raghaviah op both the points. He held that the khost muchilika demand ought to be divided by the actual surveyed area and not by the estimated area mentioned in the muchilika. He also held that the Choppamani lands were included in the khost muchilika. In view of these findings he made an all-round reduction in the money rates fixed by the Revenue Officer.
7. The ryots in the first group of villages abovementioned then filed a petition under Section 172 of the Act for the revision of the order passed by Mr. Raghaviah under Section 171 on 8th October, 1925. The petition was heard by the collective Board consisting of three members who, after overruling the objection that they had no power to revise an order of the Board under Section 171, reversed the decision of Mr. Raghaviah on both the points, namely excess area and Choppamani lands. In the result the Board decided that a 'general reduction of practically two annas in the rupee should be made in the rates' and revised accordingly the rates fixed by the Revenue Officer.
8. The Zamindar thereupon filed two sets of suits. The reliefs claimed in all the suits are in substance the same but in respect of the first group he also questioned the power of the Board of Revenue to act under Section 172 in the manner set forth above. The District Judge of Ganjam first heard arguments on the first two issues which are as follows;
(1) Whether the Court has no jurisdiction to try the suit?
(2) Whether the suit is not maintainable as contended by the defendant?
9. The learned Judge held against the plaintiff on these issues, and dismissed the suits. The present appeals are against this decree of dismissal.
10. Before proceeding to deal with the contentions pressed before us by the learned Advocates on either side based on the several relevant provisions of the Act, it is necessary to examine the case of the plaintiff as set out in the plaint. The prayers in both sets of suits are identical. The plaintiff prays for a decree in his favour declaring:
That the entry in the record of rights in the circumstances set forth above is not correct in so far as it relates to the excess area and Choppamani area and that the plaintiff is consequently entitled to charge and assess to rent separately the excess area and the Choppamani lands as per survey instead of the khost or royani lease amount being distributed both on the assumed and the excess area and Choppamani area.
11. The circumstances set forth are also substantially identical and are contained in Paragraphs 5, 6, and 7 of the plaint in O.S. 17 of 1926 (A.S. No. 22 of 1930). In respect of the first group however, there is an additional circumstance, namely, the inference by the Board of Revenue under Section 172 of the Act. Postponing for the present a consideration of the latter circumstance as conferring by itself the right of suit on the plaintiff, the general question as to the maintainability of the suits otherwise may be dealt with first.
12. No direct authority on this question has been cited before us. Incidental observations by learned Judges of this Court were referred to but the decision really turns on a construction of certain sections of the statute. The provisions of Chapter XI of the Act, and particularly the sections from 169 to 179 have presented considerable difficulty in interpretation. Several inconsistencies appear between section and section, several anomalies result from a literal construction of the words of some of the sections. Wallace, J., was 'hampered by the difficultyto reduce to a logical consistency the provisions of Sections 165 to 179 of the Estates Land Act.' Tiruvenkatachariar, J., observes.
That the drafting of the many sections referred to is by no means happy and the intention of the legislature as it may be inferred from one section seems to be repelled by the language of the other sections relating to the same subject matter.
13. It is well known that the provisions ol Chapter XI of the Madras Estates Land Act are substantially reproduced from the Bengal Tenancy Act but unfortunately modifications have been made in the Madras Act which do not fit into the original scheme according to the Bengal Act and have given rise to much confusion. It is regrettable that in spite of the numerous defects pointed out by the High Court the legislature should have taken no steps to remedy them even in the recent Amending Act of 1934, thus leaving the law relating to a matter in which the land-holder and tenant are vitally interested in a state of uncertainty.
14. The question now is whether the plaintiff's suit is maintainable. Section 179 of the Madras Estates Land Act imposes a limitation on the jurisdiction of Civil Courts in the following terms:
No suit shall be brought in any Civil Court in respect of any order directing the preparation of a record of rights under this Chapter, or in respect of the framing, publication, signing or attestation of such a record or of any part of it, or, save as provided in Section 173, for the alteration of any entry in such a record of rent settled under Sections 168 to 172.
15. The proviso is not relevant to the present discussion. The plaintiff's suit is in substance for the alteration of an entry in a record of rights of a rent settled under Sections 168 to 172 and would not therefore be maintainable unless it is held to be a suit of the nature provided in Section 173 of the Act. Wallace, J., was only expressing the opinion of every Judge who had occasion to deal with the section including the members of the present Bench when he said 'Section 173 is very difficult to understand'. As there has been considerable divergence of judicial opinion on the interpretation of this section it becomes necessary to examine it with several connected sections at some length.
16. The local Government either on application by parties or suo motu may make an order directing that a survey be made and a record of rights be prepared by a revenue Officer in respect of an estate or part of an estate (Section 164 (1)). The particulars generally to be recorded are enumerated in Section 165, among others the rent lawfully payable at the time. The Revenue Officer deputed for the purpose first publishes a preliminary record and after disposal of objections thereto, the record as finally framed is published under Section 166, Clause (2). It might happen in certain estates that nothing further is done after such final publication of the record of rights. The provisions that follow from Section 168 onwards deal with a different proceeding known as the settlement of rents. If within two months from the date of the final publication of the record of rights under Section 166 (2) either the landholder or the ryots apply for a settlement of rent the local Government may direct the revenue Officer to settle a fair and equitable rent in respect of the land (Section 168 (1)).
17. In settling rents, the officer starts with the existing rent, a rate of rent which, it may be recalled, has been entered in the record of rights (Vide Section 165(e)) and such rent is presumed to be fair and equitable until the contrary is proved. The Revenue Officer first publishes the draft rent roll. Objections made to any entry in the record or omissions therefrom are considered and disposed of by him (Section 169). When all objections are disposed of under Section 169 the Revenue Officer submits the settlement record to the confirming authority appointed by the local Government (who in this case is the District Collector). Section 170, Sub-Section (2):
The confirming authority may sanction the settlement with or without amendment, or may return it for revision.
(Section 170, Sub-Section 3):
After it has been sanctioned by the confirming authority, the settlement record shall be incorporated in the record of rights published under Sub-Section (2) of Section 166, and the record of rights as so amended shall be finally republished in the prescribed manner and such publication shall be conclusive evidence that the record has been duly made.
18. From the use of the words 'finally republished' one would expect that the Act contemplates a finality as to the entries made when this stage is reached, a finality at least so far as the revenue authorities are concerned. Unfortunately, however, it is not so. Sections now follow one after another which enable the finality of the entries to be attacked and considerably affected by orders of at least four different superior authorities viz., the authority mentioned in Section 171, the Board of Revenue under Section 172, thje CivilttCourt under Section 173 and the Revenue Officer specially empowered under Section 175. When several authorities are given various powers to affect the settlement after what is termed a final republication of the record, one would be justified in expecting at least a clear indication of the relative jurisdiction of these several authorities and their gradation in a hierarchy of superior and inferior tribunals. One is quite familiar in the case of Civil Courts with an appeal lying from the Munsif's Court to the Subordinate Judge's Court or the District Court and from the sub-Court or the District Court to the High Court and from High Court if permitted to His Majesty in Council. No such gradation is provided here nor is there a clear and unambigous definition of the extent and scope of the jurisdiction of the several authorities mentioned above.
19. Under Section 171 an appeal, if presented within two months of the order appealed against lies from every order passed by a Revenue Officer or any direction made under Section 169. In passing a lacuna may be here noticed. The section provided for an appeal from an order passed by a Revenue Officer under Section 169 but not from an order of amendment passed by the confirming authority under Section 170, Sub-Section (2). The lacuna has since been filled up by an amendment in 1934. The appeal under Section 171 lies to such superior revenue authority as the local Government may by. rule prescribe or to an officer specially empowered by the Local Government in this behalf. The local Government in this case have by rule prescribed the Board of Revenue as the superior Revenue authority under this section and not a little confusion has resulted thereby. The orders passed under Section 171 are given effect to in the manner prescribed under Section 174 which says inter alia that a note of all decisions on appeal under Section 171 shall be made in the record of rights with which the settlement record has been incorporated under Section 170 and such note shall be considered as part of the record.
20. Then comes Section 172, the scope of which it is difficult to be certain about. It confers a power on the Board of Revenue expressly by name. Reading Sections 171 and 172 it is tolerably clear that the legislature contemplated two different legal entities functioning under the two sections whereas in fact, we have now the same body functioning under both sections. For the present a consideration of the nature of the powers conferred on the Board of Revenue under the section may be postponed. It 'may be mentioned, however, that in the second group of cases the power of the Board of Revenue under this section was not invoked and need not therefore be considered. Section 173 comes next and runs thus:
173. (1) Any person aggrieved by an entry in a settlement record prepared under Sections 168 to 171 and incorporated in a record of rights finally published under Sub-Section (3) of Section 170 or by an omission to settle a rent, may institute a suit-in the Civil Court which would have jurisdiction to entertain a suit for the possession of the land to which the entry relates or in respect of which the omission was made.
(2) Such suit must be instituted within six month s from the date of the final publication of the record of rights under Sub-Section (3) of Section 170 or, if an appeal has been presented to a Revenue authority under Section 171, then within six months from the date of the disposal of such appeal.
(3) Such suit may be instituted on any of the following grounds, and on no others namely:
(a) that the relation of landholder and ryot does or does not exist;
(b) that the land is not liable to the payment of rent :
(c) that the land, although entered in the record of rights as being held rent free, is liable to the payment of rent;
(d) that any entry made under Clauses (d), (e) and (j) of Section 165 is incorrect;
(e) that special conditions in respect of holding at a favourable rate have been wrongly recorded or omitted ;
(f) that the Revenue Officer has wrongly fixed the date from which the operation of the settled rent under the provisions of Section 177 should take effect.
The Secretary of State for India in Council shall not be made a defendant in any such suit.
(4) If the Court finds that the entry relating to rent is incorrect it shall, in cases (a) and (b) mentioned in Sub-Section (3). declare that no rent is payable, or direct that the Collector shall fix a fair and equitable rent, in case (c) it shall declare that the land is liable to rent, in cases (d) and (e) it shall decide what the entry shall be and in case (f) it shall declare the date from which the rent settled is to take effect.
(5) When a Civil Court has passed final orders or a decree under this section, it shall notify the same to the Collector of the district.
21. On the true interpretation of this section the decision as to the maintainability of the present suits rests. While not commending the section as an example of skilled drafting we are of opinion that the import of the section read as a whole is fairly clear. Though Sub-Section (1) is general in its terms, Sub-Section (3) makes it plain that the right of suit conferred under the section is restricted and limited. Now what is the nature of the relief that can be sought and obtained in a suit under Section 173? Sub-Section (1) implies that the cause of action is furnished by an entry (presumably in the opinion of the person aggrieved, a wrong entry) in a settlement record incorporated ina record of rights or by an omission to settle a rent. That the entry mentioned here is the entry of a rent settled does not admit of much doubt. The antithetical clause 'omission to settle a rent' suggests itBut all doubt is removed by sub-Section 4 of the section which expressly refers to the entry relating to rent. The relief then is in respect of an entry relating to a rent settled or a rent omitted to be settled and the object of the suit is to challenge the correctness of the entry. Sub-Section (3) limits, however, the grounds on which an entry of a rent in a settlement record or an omission to settle a rent may be attacked, to the grounds mentioned in Clauses (a) to (f) of that sub-section. The learned Advocate-General who appeared for the appellant contended that Section 173 confers a general or unlimited right of suit to challenge the correctness of the rent settled by the Settlement Officer or the superior authority in appeal or revision, i.e., the whole settlement can according to him, be reopened and canvassed in a Civil Court. He founded his case mainly upon Clause (d) of Sub-Section (3) of Section 173.
(f) that any entry made under Clauses (d), (e), and (j) of Section 165 is incorrect.
Clauses (d) and (j) of Section 165 are of no help in the present case. Clause (e) of that section speaks.
Of the rent lawfully payable at the time the record is being prepared and whether the ryot is entitled to the benefit of proviso (a) to Clause (i) of Section 30.
22. The learned Advocate-General urges that 'the rent lawfully payable at the time the record is being prepared' must be deemed to refer to the rent as finally settled under Section 168 and connected sections after the republication of the record of rights with the settlement record incorporated, He supports his contention chiefly on the ground that otherwise the person aggrieved can only get the lawful rate prevailing at the time of the record of rights corrected, i.e., obtain a barren academical relief. For this position he relies on the observations of two learned Judges one of whom (Wallace, J.) made the Order of Reference and the other (Reilly, J.) who took part in the Full Bench which decided the case of Rajah of Mandasa v. Jagannayakului. Wallace, J., deals with the matter thus:
Section 173 is very difficult to understand.
For example a suit may be filed under it to set aside any entry made under Clauses (d), (e) and (j) of Section 165. If this is to be taken as it stands, then the suit lies only against the original entry under Section 165, and not against any amendments to those entries which may have been made under Section 169 as a consequence of objections to them or under Section 170 by the confirming authority. Respondents press for this extreme view, but it seems to me to make nonsense of the section. To lay down that a person aggrieved by the entries in the record of rights made under Sections 168 to 171 may not sue to set these aside but has the wholly barren remedy of suing to set aside the original entries under Section 165 seems to me an interpretation of the section so opposed to common sense that it must be wrong, and such an interpretation seems also directly contradictory to the express wording of Sections 176 and 179 which latter section clearly implies that a suit lies for the alteration of entries in the record of rights of rent settled under Sections 168 to 172. Therefore I take it that what a party can sue under Section 173 to have set aside are the original entries in the record-of-rights or any amended entries of these which have been incorporated in the record of rights so long of course as these are of the classes set out in Sub-Section 3(a) to (f).
Reilly, J., says at page 491:
It is contended that the result of these provisions is that the record of rent lawfully payable, which is made in the record of rights before the settlement of rents is begun, can be questioned by a suit under Section 173, but that the entry of rent finally settled by the Revenue Officer can never be so questioned. That is a very curious result, and it cannot be suggested that any very useful purpose can be served by questioning the lawfully payable rent entered in the record of rights after that rent has been superseded by the settled rent, which must thereafter be treated as correct.
At page 493:
If only the entry made under Clause (e) of Section 165, which is mentioned in Section 173, is understood as the entry amended by the substitution of the settled rent, then all these references to Section 173 become consistent and intelligible, and under Sub-Section (4) of Section 173 the decision what the entry shall be will serve some practical purpose. It cannot be suggested that the words 'the rent lawfully payable at the time the record is being prepared', which describe what can be disputed in a suit under Section 173, necessarily exclude the settled rent, because when once settled the settled rent becomes the lawful rent, and, if there is a settlement, 'the time the record is being prepared' goes on until the record of rights is finally republished after amendment under Section 170. All this appears to me to make it probable that, with whatever intention the Act was originally drafted, as finally framed it does give both the landholder and the ryot a right to question by a suit under Section 173 in an ordinary Civil Court the correctness of the rent settled by the settlement Officer as fair and equitable.
23. With great respect to the learned Judges, on a careful examination of the terms of the section it becomes obvious that they were proceeding on a mistaken assumption that the only alternative to the interpretation placed by them on the section was the alternative which they thought was put forward by the respondent in that case which certainly was an 'extreme view'. Their Lordships were not called upon to pronounce a definite opinion on the question now in issue as it did not directly arise for decision. Else they should have seen that the position taken by the respondents before them and at one stage by the respondents before us also was unsustainable.
24. The entire reasoning of Wallace, J., and Reilly, J., is vitiated by a fundamental error, vis,, the assumption that the grounds set out out in Sub-Section (3)of Section 173 themselves constitute the reliefs obtainable in a suit under Section 173. To illustrate Wallace, j., says (page 459):
For example, a suit may be filed to set aside any entry made under Clauses (d)(e) and (j) of Section 165.
25. But it is not so. Section 173 confers right of suit only on a person' aggrieved by an entry in a settlement record prepared under Sections 168 to 171 and not on a person aggrieved by an entry in a record of rights prepared under Sections 164 to 166. Under Section 173 the entries that are open to question are entries in the settlement record and the incorrectness of an entry made under Clauses (d), (e) and (j) of Section 165 is merely one of the grounds on which the entry of the rent as settled can be questioned. The right to question by suit is limited because the grounds on which such suits can be instituted are only the grounds enumerated in Sub-Section (3) of Section 173 and no others.
26. It is obvious how a wrong entry made under Clause (d), (e) and (j) of Section 165 in respect of a land will have an effect on the correctness of the entry of rent settled in respect of it. Clause (d) relates to particulars whether the land is irrigated, unirrigated or garden land and if irrigated whether double or single crop. A wrong entry of irrigated double crop land as unirrigated land will totally vitiate the rent which must have been settled on that wrong basis. Likewise mistakes in recording irrigation rights under Clause (j).
27. So far as Clause (e) is concerned, it is made up of two parts (i) the rent lawfully payable at the time of the preparation of the record (ii) whether the rent has been permanently fixed. It may be recalled that under Section 168 (2) in settling rent the officer shall presume until the contrary is proved that the existing rent or rate of rent is fair and equitable. That shows the importance of the first of the particulars. The case of permanent fixation of rent is too obvious to need elaboration.
28. The extreme contention on behalf of the respondents that under Section 173 no suit lies to correct an entry of rent in a settlement record may be easily disposed of. Section 176 is conclusive on the point. It says:
Subject to the provisions of Section 173, all rents settled under Sections 168 to 170 * * * settled under Section 171 shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of the Act.
29. If a suit under Section 173 has nothing to do with the correctness or otherwise of rents settled, there is no meaning in declaring the correctness of settled rent subject to the provisions of Section 173. Section 179 equally negatives the contention, for it says:
No suit shall be brought in any Civil Court...save as provided in Section 173, for the alteration of any entry in such a record of a rent settled under Sections 168 to 172.
30. An argument was addressed to us on the policy underlying the Chapter to keep the settlement of rent within the exclusive jurisdiction of the Revenue authorities and to prevent a Civil Court from interfering in any manner with the rent as settled by them. It is not really permissible to speculate on such consideration or use such speculations as a basis for the interpretation of the section. It will be enough on this aspect to remark that as it is, the right of suit under Section 173 is limited and there is no opportunity afforded to an aggrieved party to reopen the settlement and call upon the Court to make a fresh settlement of a fair and equitable rent. The Civil Court can interfere with a settled rent only on a few specified grounds and it is not difficult to understand why other grounds are not open. Only grounds which can properly be subject of an adjudication in a Civil Court, grounds capable of legal proof, have been permitted to be urged in a suit under Section 173. Other matters within the peculiar local and personal knowledge of the Revenue authorities are deliberately shut out from the purview of the Civil Court. In settling rents the officer under statutory Rule 18 has to pay attention to the condition of the land and the nature of the soil etc. For this purpose he is invested with power to cut and thrash the crops on any land and to weigh or measure the produce with a view to estimating the capabilities of the soil. Surely matters like these are not within the province of a Civil Court's functions and rightly excluded therefrom.
31. What the Civil Court is empowered to do in a suit under Section 173 is detailed in Sub-Section 4. In cases (a) and (b) if it finds the entry is incorrect it shall declare that no rent is payable or direct that the Collector shall fix a fair and equitable rent. Here again though the intention is clear, the wording is unhappy. The provision is not to be understood as implying a choice open to the Court between the two alternatives in every case. In case (b) i.e., if it finds that the land is not liable to the payment of rent, it shall declare that no rent is payable. Likewise in case (a) if it finds that the relation of land-holder and ryot does not exist. On the other hand if there has been an omission to settle a rent on the ground that the relation of land-holder and ryot does not exist and the Court finds that the ground is wrong it shall direct the Collector to fix a fair and equitable rent because in respect of the land there has been no settlement of rent at all.
32. Case (c) covers cases where the fair and equitable rent is noted but the land is entered as not liable to payment of rent. In such a case if the Court finds the rent-free nature of the land, it shall declare that the land is liable to rent.
33. Cases (d) and (e) relate to rent or rate of rent fixed on a basis which the Court finds to be incorrect. In such cases there is no need to direct the Revenue authori ties to settle the xent again, nor is there a need for the Court to re-open the settlement in its entirety. The Court has only to decide what the entry shall be having regard to the finding on the particular matter. The Revenue Officer settles the rent on certain data and the Court finds one or more of such data is wrong in fact and makes the necessary consequential alteration.
34. The entry mentioned in the latter part of Sub-Section (4) has been sometimes assumed to refer to the entry under Section 165 and the assumption has led to confusing results. 'But the assumption is unwarranted. According to established rules of statutory construction the entry in the latter part of the sub-section must refer to the entry in the opening part of the sub-section and that is the entry relating to the rent. The learned District Judge falls into this error in paragraph 10 of his judgment when he speaks of a suit for an amendment of an entry under Clause (d) of Section 165 and a suit for a declaration that the entry of irrigation rights under Clause (j) of Section 165 is incorrect. Nevertheless the learned District Judge in our opinion came to the right conclusion having regard to the allegations in the plaint.
35. In noticing an argument on behalf of the plaintiff that the data on which the Collector and the Board of Revenue settled the rents are wrong the learned District Judge correctly sums up the case for the plaintiff:
It is not plaintiff's case that the actual lawful demand per village was wrongly entered in the record of rights prepared under Section 165(a). His real case is that the settlement of rents, though it had as its basis the actual lawful rent payable in previous years was less favourable to him than it might have been, if two things had been given due weight, namely, (1) that the Jeroyiti lands were much more extensive than he ever guessed and (2) that certain Choppamani lands were held by tenants, who for one reason or another had never actually paid any rent for them.
36. Though there is an attempt in paragraphs 5 and 6 of the plaint to bring the case within Section 173 Sub-Section (3) Clauses (d) and (e), the attempt has not been successful as the plaintiff has no real grievance against the entry of the rent lawfully payable at the time the record was prepared under Section 165 (e).
37. In this view it is unnecessary to deal with a subsidiary argument on behalf of the respondent based on the definition of 'rent' in the Act, viz., that even the entry under Clause (e) of Section 165 can be attacked only in respect of the cesses which form part of the rent according to the definition and not in respect of the amount or rate of rent.
38. The plaintiff's suits which fall into the second group mentioned at the opening not being really based on any of the grounds on which a suit is permitted by Sub-Clause (3) of Section 173, are not maintainable under that section and Section 179 operates as a bar. Even the suits in the other group in so far as they purport to be suits under Section 173 must fail for the same reason as the allegations of fact therein on this aspect are identical with the allegatipns in the suits in the second group.
39. There is however one additional circumstance in regard to the 14 suits of the first group already adverted to, viz., the interference by the Full Board of Revenue under Section 172 of the Act with the orders passed by it under Section 171. The pleading on this point is in this wise : (O.S. No. 38 of 1926):
8. The plaintiff preferred appeals (R. P. Nos. 2 to 15) under Section 171 of the Madras Estates Land Act with regard to the excess area and the defendants (ryots) filed an appeal No. 29 of 1925. The Board of Revenue decided on 8th October, 1925, that the rates of rents should be revised by dividing the village rentals shown in the Khostgutta muchilikas by the old extents entered in them, and with regard to Choppamani lands the Board of Revenue confirmed the Special Revenue Officer's decision.
9. But the said decision of the Board of Revenue on the two points referred to in para 8 above was reversed an 22nd June, 1926, by the Full Board under Section 172 of the Madras Estates Land Act. The plaintiff submits that the Full Board has acted without jurisdiction reversing its own decision under Section 172 of the Madras Estates Land Act and Act I of 1894 (Madras), Board of Revenue Act. The plaintiff is entitled to have the choppamani lands and the excess area assessed to rent as held by the Board of Revenue in R.P. Nos. 2 to 15 and 29 of 1925 which have been treated by the Full Board as rent free.
40. The cause of action accrued to plaintiff not only on the date of the final publication of the record of rights under Section 170(3) but also on the date of the decision of the Full Board of Revenue (see para 11 of the plaint).
41. The distinction in its nature between a suit brought for a declaration that an act or order of a statutory body is in excess of its jurisdiction and a suit brought for the correction of an entry in a settlement record on certain specified grounds is patent and substantial. In the one case it is a suit under the general law based on a common law right. In the other it is a suit under an enabling provision of an enactment. In the first case apart from the question of jurisdiction the merits 3o not matter. In the second case the decision must be on the merits.
42. If the plaintiff is confined to the final prayer in the plaint there can be no doubt that the suits are not for a declaration simpliciter that the order of the Board of Revenue dated 22nd June, 1926, is without jurisdiction. And as it has already been held that treated as suits under Section 173 they are not maintainable it follows the suits must fail.
43. But as an allegation has been made in paragraph 9 of the plaint that the Full Board has acted without jurisdiction, the maintainability of the suit as if it were a suit for a declaration of the invalidity of the Board of Revenue's order may now be examined.
44. The learned Advocate-General impeached the jurisdiction of the Board of Revenue to act in the manner it did on the following grounds:
(a) Order under Section 171 by any appellate authority cannot be revised under Section 172 as Section 171 is not mentioned in Section 172.
(b) The Board of Revenue has no power of revision under Section 172 in cases where' it has itself acted under Section 171 as the appellate tribunal.
(c) Ass uming the Board of Revenue can act under Section 172 it can only 'direct a revision' but cannot itself settle the rents.
45. On these points the only authority directly dealing with the question is the decision reported in Zamindarini of Mandasa v. Ryots of Mandasa Zamindarfi. The jurisdiction of the Board was however questioned there not by suit but by an application for a writ of certiorari.
46. The first of the grounds above mentioned may be easily disposed of. Section 172 saves only orders of a Civil Court under Section 173. Orders under Section 171 are not saved nor are they mentioned specifically as subject to interference. But Section 174 implies the latter position. All decisions on appeal under Section 171 are noted in the record of rights with which the settlement of record has been incorporated and such note shall be considered as part of the record. Under Section 172 the Board of Revenue may direct the revision of any record of rights or any portion thereof. As orders under Section 171 form part of such record the Board of Revenue can equally direct the revision of such part.
(b) It must be conceded that there is great force in the contention that the Board of Revenue should not under Section 172 revise its own decisions passed under Section 171. The sections as they originally stood did not appear to contemplate such a proceeding and this complication is a direct result of prescribing the Board of Revenue as the superior Revenue authority under Section 171 by the Local Government.
47. Generally no Court has got a power of revising its own appellate orders nor has a Court the power of review unless specially conferred on it.
48. Analogies however should not be pushed too far. There is no warrant for assuming that the Revenue Officer and the Board of Revenue are Courts and that 'revision' is used in the sense it possesses when used in respect of Civil Courts. Wallace, J., says at page 458 in Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 (F.B.):
The word 'revision' has a definite legal meaning as distinct from 'appeal' on the one hand and from 'review' on the other. It means the authority suo motu or on motion by party to scrutinise the proceedings of inferior and. subordinate tribunals and to correct these if necessary in the interests of justice. It does not ordinarily connote authority to rehear and aiter decisions of the revising authority itself. Even the High Court has not got that power. ...It is in effect a re-hearing of the appeal or rather a hearing of an appeal against its own decision in appeal. Such a power is not inherent in a Court and it is open to grave doubt whether it is possessed by the Board of Revenue when it acts as a Civil Court.
49. Here Wallace, J., is assuming that the Board of Revenue acts as a Civil Court but the assumption was definitely negatived by the Full Bench to which Wallace, J., made the reference and no arguments based on ordinarily accepted notions can prevail against an interpretation which flows from the wording of the section. Moreover a subsequent extraneous event, namely, the prescribing of the Board of Revenue as the appellate authority under Section 171 ought not in strictness to be taken into account in interpreting Section 172 as it stands. Supposing under Section 171 the Local Government appoints not the Board but some 'special officer as the appellate authority, would the Board of Revenue then have the power to revise the order of such special officer? If it has, (and it has been shown that Section 174 supports the conclusion) then equally it would have power to revise its own order under Section 171. The position is certainly anomalous, Vide Tiruvenkatachari, J's remarks in Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 (F.B.) but on that account only it cannot be rejected. So far as it may be permissible to refer to subsequent legislation for construing an enactment, it may be pointed out that the explanation added to Section 172 by the amending Act of 1934 shows that the legislature assumed that the Board of Revenue can act in revision even when an order under Section 171 has been passed by the Revenue Board itself. The explanation runs thus:
The Board of Revenue in this section shall mean the collective Board if one member of the Board has already heard an appeal under Section 171.
(c) The greatest difficulty, however, lies in construing the section to discover the manner in which the Board of Revenue can exercise its powers under Section 172. The relevant words are, 'direct the revision of any record of right '. It has been argued (and there is considerable force in the argument) that the Board of Revenue under the section cannot itself fix finally a rate but can only remit the record back to the Revenue Officer for reconsideration necessarily involving a repetition of the settlement procedure laid down in the Act and the rales. This argumnet is sought to be supported by the following consideration: - (1) Though orders passed under Sections 171 and 173 are made part of the record, orders under Section 172 are not so made. So there is no reference to Section 172 in Section 174(2) Section 176 enacts that subject to provisions of Section 173 all rents settled under Sections 168 to 170 or settled under Sections 171 shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of the Act. There is no reference in this section to any rent settled under Section 172. As Wallace, J., remarks, not without justification:
We have the astonishing result that the rent determined under Section 171 is deemed fair and equitable rent, but if revised under Section 172 it is not'. '(3) Great hardship may result from an exercise of the powers of revision after the time for filing a suit under Section 173 has expired; but Section 173 does not appear to confer a right of suit against an order in revision under Section 172'. 'The unsuccessful party under Section 171 can move in two ways, by revision on the merits under Section 172 or by a suit under Section 173, while the successful party may be defeated without remedy by a revision under Section 172 arfter the limitation period for a suit under Section 173 has expired.
Pakenham Walsh, J.
50. In Zamindarini of Mandasa v. Ryots of Mandasa Zamindari (1932) 65 M.L.J. 423 : I.L.R. 56 Mad. 579 also refers to this aspect at page 612.
51. It cannot be denied that all these considerations force one to the conclusion that the power of the Board of Revenue under that section was intended to be exercised by directing a revision in the sense of a retrial i.e., a re-settlement.
52. Such a course may be found desirable and expedient because the settlement has been found to be unsatisfactory in the actual working of it; or because the settlement proceeded on fundamentally wrong principles or because as in this case, there have been conflicting decisions on appeal resulting in marked inequalities in the rent settled. Revision then takes on a much wider meaning than it has when used in describing the power of a superior Court to interfere with the orders of a subordinate Court. In Chapter XI itself, the word 'revised' is used in a wide comprehensive sense; e.g., in Section 169(2) and in Sub-Section (2) of Section 170 under which the confirming authority may return the settlement record for revision. This conclusion will also explain why Section 179 speaks of a record of rent settled under Sections 168 to 172; the word 'settled' in the section also meaning ' re-settled ' with reference to Section 172.
53. However, we are inclined to agree with the decision in Zamindarini of Mandasa v. Ryots of Mandasa Zamindar (1932) 65 M.L.J. 423 : I.L.R. 56 Mad. 579 that the order of the Board of Revenue in the present case only reveals an irregularity of procedure and is not so totally without jurisdiction as to confer a right of suit on the plaintiff. It may be said that the plaintiff has been deprived of an opportunity of filing a suit under Section 173 which he would have had if the record has been remitted to the Revenue Officer. But the loss on account of this deprivation is more academical than substantial because any suit he may file under Section 173 must be a suit on one of the grounds mentioned in Section 173, Sub-Section (3) and it has already been demonstrated that none of the said grounds are available to the plaintiff. The plaintiff does not base his claim to relief on the incorrectness of any entry tinder Section 165 Clauses (d)(e) and (j). It follows that even if the Revenue Board had sent back the record for revision in the light of the observations in the order and the Revenue Officer had proceeded to pass orders, still the plaintiff could not have been successful in any suit purporting to have been instituted under Section 173.
54. In this view also there is no reason to interfere with the decision of the lower Court in these suits.
55. The appeals tail and are dismissed with costs, we nx a consolidated fee of Rs. 1,300, at fifty rupees for each of the 26 Appeals in which Mr. Jagannadha Das entered appearance.