1. The plaintiff in O. S. No. 137 of 1964 on the file of the court of Principal District Munsif, Padhamanbapuram, who succeeded before the trial Court and lost before the first appellate Court is the appellant herein. The suit was instituted (as seen from the plaint which was finally amended) for redemption of an alleged othi under Ex. A-2 dated 8-6-1094 M. E. The principal question that had to be considered by the courts below was whether the land in question was janmom land coming within the scope of the Travancore Jenmi and Kudiyan Act of 1071 M. E. as amended in 1108 M. E. or is it a Sreepandavaraga land. The consequence of the land being jenmom land will be that the appellant was not entitled to redemption and recovery of possession while if the land was Sreepandavaraga land the appellant would be entitled to recover possession thereof on redemption. The one other question that came to be considered was whether the transaction under Ex. A-2 was an irredeemable one or redeemable one. Though the learned Principal District Munsif who disposed of the suit decreed the suit as prayed for, the learned District Judge of Kanyakumari at Nagarcoil had on appeal reversed the conclusion and dismissed the suit.
2. The points that arise-for consideration are (1) whether the land in question is jenmom land as defined in Jenmi and Kudiyan Act; (2) whether the transaction under Ex. A-2 was kanom and if so it was an irredeemable one or redeemable one and(3) whether the decision of the Assistant Settlement Officer under Ex. A-3 functioning under the Madras Act 39 of 1964, namely the Madras (Transferred Territory) Jenmikaram Payment Abolition Act 1964, holding that the land in question is not jenmom land, precluded the civil court from going into the question whether the suit land is a jenmom land or not.
3. As far as the first part is concerned. I am clearly of the opinion that the contention of the appellant is absolutely untenable. It is admitted before me that Ex. A-2 refers to the land only as jenmom land. If Ex. A-2 has referred to the land as jenmom land and the parties to Ex. A-2 dealt with the property on that basis with all the legal incidents attached to it, it is certainly not open to the appellant subsequently to turn round and contend that the suit land is not jenmom land. A Bench of the Travancore High Court in Madan Padmanabha v. Krishna Narayanaru, (1929) 19 TTJ 760, while considering a similar question pointed out thus:--
'If there is evidence to show that the property was at the time represented to be jenmom and the transaction entered into on that basis it is doubtful whether the plaintiff can resile from that position and contend that the legal incidents of the Jenmom property are not claimable with respect to the mortgage holding.'
After referring to the above observation of the Travancore High Court. I have held in my judgment dated 1-9-1972 in S. A. No. 1000 of 1969 (Mad.)--Ganapatia Pillai v. Karuthudayan Nadar--that when the parties had treated the property as jenmom property with all the legal incidents attached thereto, it was not open to them to go behind and contend that the property is not jenmom but Sreepandaravaga property. In this case, as I have already pointed out Ex A-2 described the suit property as jenmom property though in the plaint the appellant contended that the property really was Sreepandaraga property. Having regard to the decision of the Travancore in S. A. 1000 of 1969 (Mad.) I hold that in view of the description of the suit property as jenmom land in Ex. A-2 it was not open to the appellant to put forward the contention that the suit land is not a jenmom land but Sreepandavaraga land.
4. As far as the second point is concerned admittedly Ex. A-2 provides for a renewal at the end of 12 years. The question for consideration is whether it provided for one renewal at the end of the first 12 years from the date when Ex. A-2 came into existence or it provided successive renewals at the end of every 12 years. The learned District Judge has referred to the provision contained in Ex. A-2 in this behalf and transliterated the same as follows:--
'pandrandu samvalsaram kazhinju koodumbol.'
In my judgment in S. A. 1000 of 1969 (Mad.) referred to already. I have held that such a provision contemplates successive renewals at the end of every 12 years. Mr. Ganapathisubramania Iyer, the learned counsel for the appellant, contends before me that a mere provision for such successive renewals will not make the transaction irredeemable and there must be evidence to show that there was an actual renewal. I am unable to agree with this contention. What has to be decided is as to what was the intention of the parties when they entered into the transaction namely, whether they intended that the kanom should be an irredeemable or redeemable one. For finding out this intention, what is relevant is what the parties agreed upon at the time when they entered into the transaction and not whether one or the other party to the transaction exercised his rights arising out of the transaction or not. Therefore I am of the opinion that once the document provided for successive renewals, it is enough to make it an irredeemable one and it is not necessary to prove either exercise of the right of renewal or actual payment of renewal fee in this behalf.
5. As far as the third point is concerned as I pointed out already, the argument is based upon the Madras (Transferred Territory) Jenmikaram Payment of Abolition Act 1964 Ex. A-3 is an order dated 25-9-1965 made in S. R. 51/65 by the Assistant Settlement Officer, Nagarcoil, purporting to be under S 9 of that Act Sub-section(1) of Section 9 of that Act states that where any person claims that any jenmom land in respect of which he is the jenmi or the kudiyan has not been included in the Register of Jenmikarams as in force on the date of the publication of this Act, he shall make an application to the Settlement Officer for inclusion of such jenmom land. The section authorises the Settlement Officer to conduct an enquiry and pass order directing the inclusion of the land in the register or rejecting the application. Against the order of the Settlement Officer an appeal is provided for under Section 17 to the Tribunal, Section 31(1) of the Act says that any order passed by any officer the Board of Revenue or other authority or any decision of the Tribunal or the High Court under this Act in respect of matters to be determined for the purposes of this Act shall subject to any appeal or revision provided under this Act be final Sub-section(2) states that no such order or decision shall be liable to be questioned in any court of law.
6. Mr. Ganapathisubramania Iyer, the learned counsel for the appellant, contends that notwithstanding the existence of Ex. A-3 order rejecting the claim of the respondent herein, the learned District Judge proceeded on the basis that since no appellate Tribunal has been constituted Ex. A-3 order has not become final and therefore the learned District Judge was entitled to go into the question as to the character of the land and this conclusion of the learned District Judge is erroneous. No doubt it is true that in paragraph 10 of the judgment the learned District Judge refers to the fact that Ex. A-3 has not become final in view of the non-existence of a Tribunal as contemplated by Section 17. However, the learned District Judge has not rested his conclusion on this alone. He states in paragraph 15 of his judgment that the issue as to whether the suit land is jenmom land or not is not as issue that could be decided by the Settlement Officer under Madras Act 39 of 1964. In my opinion, this reasoning of the learned District Judge is fully justified. I have already referred to the provisions contained in Section 9(1) of the Act. No doubt, when acting under Section 9(1), the Settlement Officer will have to incidentally consider whether the land with reference to which the application for inclusion in the Register has been made is jenmom land or not. However, there is no provision in the Act conferring on the Settlement Officer exclusive jurisdiction to decide whether a particular piece of land is jenmom land or not. Only when such exclusive jurisdiction has been conferred on the statutory authority, it could be said with reference to Section 31 of the Act referred to already that the said decision is final and cannot be questioned in any civil court. In the absence of any such exclusive jurisdiction conferred on the Settlement Officer to decide the question whether a particular piece of land is jenmom land or not. Section 31 cannot be invoked to take away the jurisdiction of the civil court to go into the character of the land. Hence I am clearly of the opinion that the learned District Judge was right in holding that the order of the Settlement Officer. Ex. A-3 cannot be said to be binding on the civil court and that the civil court was competent to go into the question whether the land involved is jenmom land or not. Under these circumstances, no case has been made out for interference with the conclusion of the learned District Judge and consequently this second appeal fails and is dismissed. No order as to costs. No leave.
7. Appeal dismissed.