1. On the preliminary objection taken by the Counsel for defendants other than 1st defendant that the suit was insufficiently valued both in respect of Court-fees payable on the plaint and for purposes of jurisdction, the District Munsif decided before commencing the trial that the plaintiff's valuation was correct. This decision was final as between the parties to the suit, subject to the power of a Court of Appeal to require an additional fee in a case of loss of revenue being occasioned by a wrong decision on the question of valuation (Section 12 of the Court Fees Act).
2. The District Judge was of opinion that the suit had been undervalued and that it ought, therefore, to be dismissed. In this he was wrong, firstly, because he applied Section 7, Clause V (a), of the Court Fess Act to these lands although the revenue from them is admittedly not permanently settled; secondly, because under Section 11 of the Suits Valuation Act he had no power to entertain an objection based on undervaluation to the jurisdiction of the District Munsif's Court, unless for reasons to be recorded by him in writing he was satised that the undervaluation had prejudicially affected the disposal of the suit on its merits; and thirdly, because the mere change of forum consequent on the alleged undervaluation could not of itself be treated as prejudicially affecting it wife Raghava Chariar v. Raghava Chariar 8 Ind. Cas. 545 : 20 M. L. J. 726 : 8 M. L. T. 404 and in any case the proper course would have been not to dismiss the suit but to return the plaint to be represented in a Court of competent jurisdiction.
3. The lands in suit were not actually registered as inam till after the institution of this suit. I consider, therefore, that the plaintiff when she filed her suit was entitled to treat these lands for purposes of valuation on the same footing that the Government was at the time of her suit treating them for purposes of revenue, namely, as ryotwari lands held on patta, and to value them at five times the revenue payable thereon under Clause V (b), Section 7 of the Court Fees Act. Neither the Government, who is 1st defendant having classed the lands as fully assessed ryotwari, lands, nor the other defendants, who have been paying such annual revenue to the 1st defendant, could now be allowed to take the objection that the lands were, as a result of their own act or acts in which they have acquiesced, wrongly classed at the time of suit.
4. I am equally unable to accept the District Judge's finding on issues I, V and VII.
5. On the 5th issue the District Judge states in paragraph 12 of his judgment that it appears clear that the Menkaval lands constitute a permanently settled estate within the meaning of Madras Act I f 1908, but in paragraph 10 he says that 'the assessment is, of course, subject to revision after 30 years.' This being so, the plaintiff's estate is not an estate described as a permanent estate in Regulation XXV of 1802 and as such is not one falling under Section 3, Clause 2 (a) of the Estates Land Act.
6. Nor does it fall under Sub-clause (d) unless the plaintiff is a person 'not owning the kuditaram', which raises the very question that had to be decided in the 3rd issue.
7. The plaintiff could recover possession from Government and those who attorned to Government only by suing in a Civil Court.
8. On the first issue which relates to misjoinder I agree with the District Munsif and I think that Order I, Rule 3, of the Civil Procedure Code applies to this case. Common questions of law and fact arise between the plaintiff and the several defendants, the principal being the question whether the grant to plaintiff's predecessor-in-title consisted of the lands, or only the melvaram on them. Section 99, Civil Procedure Code, should have prevented the Appellate Court from treating the suit as bad for misjoinder [vide Rup Narain v. Gopal Devi 3 Ind. Cas. 382 : 960 : 780 : 6 A. L. J. 567 : 10 Cri. L. J. 58 : 13 C.W.N. 920 : 5 M. L. T. 423 : 11 Bom. L. R. 853 : 93 V. K. 1909 : 68 P. L. R. 1910 : 146 P. W. R. 1909 : 36 I. A. 103 : 19 M. L. J. 548.]
9. On the issue as to limitation the District Judge in paragraph 10 rightly decided that the plaintiff's claim to be recognized as landlord could not be barred as the present suit was filed within 12 years of her obtaining symbolical possession. But he finds that the defendants other than 1st defendant have been in adverse possession over 12 years since they were granted permanent leases or pattas by the 1st defendant and, therefore, he thinks that they are entitled to remain in possession, although they are bound to attorn to the plaintiff. The District Judge failed to see that when the tenants attorned to Government, they could not simultaneously prescribe for any title which could endure after the title of Government was negatived in the suit of a third party, and that so long as they were tenants of the plaintiff or her predecessors-in-interest, their possession was not adverse to that of their landlord. The rights of a pattadar holding land upon ryotwari tenure under Government are not the same as those of an occupancy tenant under a landholder of an estate. So it cannot be maintained that the occupant of land under the former tenure can by means of such occupation acquire by prescription a title under the latter tenure. A ryotwari pattadar does not acquire any superior rights against the Government by continuing as such pattadar for a term of over 12 years to what he gets at the initial grant of patta. Moreover both the lower Courts have found that the tenants had notice of the plaintiff's symbolical possession.
10. The District Munsif held on the 4th issue that the grant of the Menkaval lands comprised both the Kudivaram and the melvaram. In paragraph 16 he mentioned four facts which in his opinion indicated the correctness of this conclusion, and elsewhere in his judgment he thoroughly discussed the evidence on the issue.
11. The District Judge in paragraph 7 decided differently but he was influenced solely by consideration of the question of the existence of mirasi rights in the landholder. He has practically left the real question of occupancy rights undecided. It is obvious that, apart from any title which a landholder may assert by virtue of his being a mirasidar in a mirasi village, his tenants may or may not have an independent occupancy right. I think that the Judge's failure to consider the other evidence, including Exhibits A and L, and his reliance on the evidence in Original Suit No. 10 of 1885,' while treating the High Court's judgment in the same case as irrelevant, vitiated his decision. We must remand the appeal for a fresh finding on this 4th issue. Finding should be given on the evidence on record within six weeks. Ten days are allowed for objections.
12. I agree generally with the judgment just read by my learned brother, but would like to add a few remarks. The first question for determination in this appeal is whether the suit has been rightly valued for purposes of Court-fees and jurisdiction.
13. The plaintiff sues to recover possession of the plaint lands, called the Menkaval lands, from the 1st defendant, the Secretary of State for India, and the other defendants, who are tenants in possession under the 1st defendant.- Government resumed the village in which this inam is situated in 1873, and treating the plaint inam as also resumed registered the land as ryotwari, fixed an assessment and issued pattas to tenants.
14. In 1885 the plaintiff brought a suit against the 1st defendant alone and obtained a decree for possession on 24th February 1891, on the ground that it was her was and had not been resumed by Government. In 1897 the plaintiff obtained delivery of symbolic possession, but Government still retained the lands in the registers as ryotwari and continued to levy assessment until the date of the suit. The registry has since been altered. The question, therefore, is whether the Court-fee should be calculated under Clause V (b) or under Clause V (c) of Section 7 of the Court Fees Act. The District Judge has held that Clause V (a) applies, but this view is supported by neither party before this Court, and is clearly wrong for the revenue payable to Government has not been permanently settled. As between the plaintiff and the first defendant it was held in the suit of 1885 that the land is inam land bearing a fixed quit-rent and as such the plaint property would come within the definition of Clause V (c) of Section 7 of the Court Fees Act. The registry in the revenue register was not altered by Government and consequently at the date of suit the land was not registered as inam although it had been held to be such, but continued to be registered as ryotwari, and the assessment was levied by Government from the tenants. The land was, therefore, an estate paying annual revenue to Government, and was recorded in the Collector's register as separately assessed and the revenue was settled but not permanently. Consequently the plaint lands form an estate coming within the definition of Clause V (6) of Section 7 of the Court Fees Act. It seems to me that as between the plaintiff and the 1st defendant, the plaint land is within the definition of Clause V (c), but so far as the other defendants are concerned, it comes under Clause V (6) and, therefore, the plaintiff can value her suit either according to Clause V (6) or according to Clause V (c). She has chosen the former valuation and I think she was justified in doing so, the more especially as her claim to the land as inam was not admitted by the defendants other than the first defendant and they cannot now be heard to say that her classification is wrong. I would hold, therefore, that the suit has been correctly valued and the District Munsif had jurisdiction to try it.
15. Defendants (except the first) have been in possession of the suit lands as ryots holding on ryotwari tenure under Government. Some were in possession originally as tenants under the inamdar, plaintiff's predecessor, but others have been let into possession by Government since 1873, when the Government purported to resume the inam. In execution of the decree confirming her right against Government, the plaintiff obtained symbolic delivery in 1897 and the finding of fact, which is binding on us now, is that defendants were present at the delivery and were cognizant of it. It is contended on the defendants' behalf that as they were in possession for over 12 years as ryotwari tenants under Government they prescribed for such an interest, that is, the right to hold on ryotwari tenure as against the plaintiff and have perfected their right by prescription, and reliance is placed on Gossain Dalmar Puri v. Bepin Behary Mitter 18 C. 520 : 9 Ind. Dee. (n. a.) 347 but that case is only authority for the proposition that where a wrongful owner in possession granted a permanent lease and was subsequently dispossessed by symbolical delivery, the permanent lessee who was not a party to the symbolical delivery was not affected by it nor was his adverse possession disturbed thereby, the ratio decidendi being that the grantor of the lease had no power of resumption, and consequently the possession of the lessee had always been adverse to and not on behalf of the grantor. It is unnecessary now to consider whether defendants would have acquired any right if they had been unware of the symbolical delivery of possession to the plaintiff in 1897 They were not unaware of it, and acquiesced in it, thereby recognising that the possession of their landlord had ceased, and consequently that there was a cessation of their possession also in so far as they claimed possession under Government, vide Kocherlakota Venkatakristna Row v. Vadrevu Venkappa 27 M. 262. No doubt they subsequently continued to be in physical possession and paid revenue to. Government, but their original possession having been terminated by the delivery in execution, any fresh title would not be-perfected until the expiry of twelve years after the symbolical delivery, and this suit has been brought within twelve years of that date, and is, therefore, within time.
16. A further objection is taken that some of the defendants were not impleaded in the suit originally, but were added as parties more than twelve years after the date of delivery. The plea does not appear to have been taken before, nor can it be gathered from the record before us which defendants were impleaded more than twelve years after the date of delivery. I do not think this plea can be allowed to be taken for the first time in second appeal.
17. I agree that the District Judge's finding on issue IV cannot be upheld. He appears to have considered the question from one standpoint alone, that is, whether as a mirasidar the plaintiff is entitled to the kudivaram, but the question that his to be decided in this suit is whether the inam granted to the plaintiff's predecessor consisted of the land, including both varams, or of the melvaram only and the District Judge has not considered the evidence on this point. I agree, therefore, in the order proposed.
18. In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following
19. FINDING.---The High Court has called for a finding on the 4th issue, viz., whether the inam granted to the plaintiff's predecessor consisted of the lands including both the melvaram and kudivaram or of the melvaram only.
20. The evidence on either side is meager, On a consideration of the above circumstances, I find that the inam granted to the plaintiff's predecessor consisted of the lands including both the melvaram and kudivaram.
21. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following