1. This is an appeal against the judgment and decree of Ramaswami Gounder, J., dismissing the appellant's suit on the Original Side of this Court, C. S. No. 148 of 1930, against the Corporation of Madras, the respondent before us. The suit was for the recovery of Rs. 10,845-S-O or such other sum as may be found due as arrears of 'melwaram' in respect of lands described in schedules A, B and C to the plaint.
2. The plaintiff is the present Zamindarant of the Zamin village of Mambalam. The material allegations in the plaint were that she and her predecessors were entitled to collect and were collecting melwaram from the various kudivaram-dars occupying the lands comprised in the Zamindari, that the melwaram varied according to the nature of the land, that is according to the use to which the land had been put, that in the case of agricultural lands the melwaram collected from the kudiwaramdars was four annas per ground per fasli and in the case of building sites one rupee per ground per fasli (paragraph 3).
The plaintiff stated that the lands described in the schedules were in the occupation of kudiwaramdars who were paying the melwaram to the Zamindar for the time being and were obtaining pattas for the said lands. From time to time portions of these lands were being included in the Madras 'City area and by the date of the suit all the suit lands had been so included and had passed into the possession of the defendant, the Corporation of Madras, who obtained these lands Stem the various Kudiwaramdars either by direct purchase from them or by obtaining assignment from them in exercise of their statutory rights. The plaintiff claimed that the defendant Corporation as the successor in interest of the various Kudiwaramdars from whom they acquired these lands were bound to pay the melwaram to the plaintiff as the Zamindarini. In paragraph 8 of the plaint she stated that all the lands described in the verious schedules to the plaint had ceased to be agricultural lands and had become valuable house sites or public roads and the plaintiff was therefore entitled to melwaram at one rupee per ground per fasli which had been considered fair and reasonable by courts.
The amount of melwaram claimed covered a period between fasli 1348 to 1358 in respect of Schedule A lands and from faslis 1352 to 1358 in respect of B and C schedule lands. Several pleas were raised by the Corporation in their written statement and one of them was 'Is the suit as framed maintainable in view of the provisions of the Zamindari (Abolition and Conversion into Ryotwari) Act of 1948, and the Madras City Municipal Act?' It appears, however, that at the trial another preliminary objection was taken on behalf of the defendant that the civil court had no jurisdiction to entertain the suit because of the provisions of the Madras Estates Land Act. .
It was this objection which received considerable attention at the hands of the learned trial Judge, obviously because the defendant relied most on that. The learned 'Judge, Ramaswami Goundar J. did not go into the merits but decided on the preliminary objection and held that the, suit was not sustainable both under the Madras Estates Land Act as well as under Madras Act XXVI of 1948, the Abolition Act.
He came to this conclusion because in his view the suit was for the recovery of melwaram or rent due from ryoti land and the civil court had no jurisdiction to entertain the claim for rent due from ryoti land. The logical result of acceptance of the plea based on the Madras Estates Land Act would have been to return the plaint for presentation to the proper court. But this was not done by the learned Judge obviously because be held that the suit was barred by the provisions of Madras Act XXVI of 1948. That was why the suit was dismissed.
2A. We must confess that the judgment of the learned Judge does not throw much light on the reasons which impelled the learned judge to accept the plea under Madras Act XXVI of 1948. The only pert of the judgment which deals with this point is when the contention is briefly narrated at the opening and when the learned Judge categorically states that the suit will be barred by Madras Act XXVI of 1948 towards the end of the judgment There is no-other discussion on the point The learned counsel for the Corporation-respondent sought to sustain the conclusion of the learned Judge on the provision of Section 55(1) of the Abolition Act. The material part of this sub-section is as follows:
'After the notified date, the landholder shall not be entitled to collect any rent which accrued due to him from any ryot before, and is outstanding on that date; but the manager appointed under Section 6 shall be entitled to collect all such rent and any interest payable thereon together with any costs which may have been decreed, and it they were arrears of land revenue; and all amounts so collected, after deducting (a) ten per cent thereof on account of collection charges and (b) the arrears of peshkush, quit-rent, joji or other amount, if any of a like nature, due from the landholder to the Government, shall be paid to him,' It is common ground that the suit out of which this appeal arises was filed before the notified date. The suit was therefore competent when it was filed. The question is whether by reason of the notification the suit automatically came to an end. Learned counsel for the respondent confessed that there was nothing in the Act itself to indicate that the suit automatically terminated. But he contended that that was the effect of Section 55(1) of the Act. We do not agree with him. In the absence of any express provision that a pending suit which had been properly instituted shall not be allowed to proceed and shall stand dismissed, we must hold that the suit could be continued. It may be that if a manager is appointed under Section 6 of the Act, he may take steps to bring himself on record in the suit and take further steps either for the prosecution of the suit or for withdrawing the suit and proceeding to recover the arrears by summary procedure resorted to for recovery of land revenue. Learned counsel for the respon-dent admitted that there was no manager appointed who could take any such action, in these circumstances we are clearly of opinion that the suit can continue and there is no bar which can be founded on any provision of the Madras Estates (Abolition and Conversion into Ryotwari) Act.
3. There remains the question whether the civil court can maintain the suit for recovery of arrears of rent in respect of lands which admittedly were at one time ryoti lands. We find that this objection in terms was not raised in the written statement by the defendant, Nor was any issue raised dealing specifically with this point. Apparently this objection was raised at the time of the final hearing and the learned Judge permitted the defendant to raise the objection. The appellant has not raised any ground of appeal that this objection should not have been permitted to be raised at such a late stage as the trial of the suit. We do not think that in appeal we should interfere with the discretion of the learned Judge in having allowed the objection to be raised.
4. In our opinion the objection itself was well founded. Admittedly the lands were ryoti lands in origin. There is no allegation in the plaint that they had been converted into non-ryoti lands, even if that be possible. It may be that 'there is nothing in the provision of the Madras Estates Land Act which prevents the landholder and the ryot from entering Into a special contract in respect of ryoti ]and that the land should be permitted by the landholder to be used by the tenant for non-agricultural purposes and that the tenant should in his turn pay to the landholder a rent above the ordinary rate charged for agricultural purposes. A claim based on such an express contract is certainly outside the purview of the scheme set up by the Madras Estates Land Act for tbe recovery of moneys due to the landholder in respect of ryoti land. A suit for the recovery of amounts due under a contract would be strictly not a suit for recovery of rent within the definition of that term in the Madras Estates Land Act. The decision of the Bench of this court in Venugopala Rice Mill v. Rafah of Pettapuram ILR 53 Mad 367 : AIR 1931 Mad 194 (A) is authority for this position. In that case a purchaser from a ryot of a portion of the ryoti lands in his holding, expressly agreed with the Zamindar that he should be allowed to erect buildings thereon for the purpose of working a rice mill, on payment of a higher rent than what was originally payable for such lands as agricultural lands. The Zamindar accepted the proposal and registered the portion purchased separately.
It was held that the purchaser was not a ryot within the definition of Section 3 (15) of the Madras Estates Land Act, as he did not hold ryoti lands for the purpose of agricultural and that the amount agreed to be paid by him was no rant and consequently the civil court had jurisdiction to entertain a suit brought by the 'zamindar for the specific performance of the agreement. Unfortunately for the plaintiff, no case of an express agreement was set up in the plaint. We agree with the learned Judge, that there is no reference at all in the plaint to any contract or agreement entered into between the parties under which the land was permitted to be used for building or other non-agricultural purposes in consideration of a higher rent. The result is that the only claim in the plaint, is for recovery of rent within the meaning of the Estates Land Act. As the learned Judge, observes, 'the claim set out in the plaint is one by a landholder to recover rent due from a tenant in occupation of a ryoti land under the provisions of the Estates Land Act, and not under any express or special agreement.'
A suit based on such a claim cannot be entertained by the civil court.
5. Learned counsel for the appellant tried to get over this difficulty by relying upon paragraphs 3 and 4 of the plaint which according to him contained a plea of an express contract. It is impossible for us to agree with him. It was next contended by him that these paragraphs could be read as containing a plea of custom. This is a most extravagant contention and the only justification which the appellant's counsel can plead is the decision in Meera Kasim Rowther v. Foulfces, ILR 37 Mad 432: AIR 1915 Mad 93 (B) In which the facts were quite different.
6. As observed by the learned Judges In immandi AppaSasamt v. Rajah, of Vizianagaram, 25 MLJ 50 (C) the definition of rent in Section 3 Clause II of the Madras Estates Land Act does not require that the raiyat in possession should actually use the land for the purpose of agriculture. We agree with the learned Judge on a reading of the plaint that the suit should be treated as one for recovery of rent due from ryoti land. The suit should have been filed in a revenue court and not in a civil court. As we have found that the civil court has no jurisdiction to entertain the suit, the proper course is to direct the return of the plaint to the plaintiff for presentation in the proper court. We allow the appeal, set aside the decree of dismissal passed by the learned Judge, and direct that the plaint be presented to the proper court, namely, the revenue court. There will be no order as to costs in this appeal. Costs of the suit will abide the result. The court fee paid on the memorandum of appeal will be refunded to the appellant