1. Government appeals from a decree of the District Court of Kistna whereby the plaintiff-respondent was held entitled to recover a sum paid by him to Government as cist of a certain village between 1912-1916. The village in question was originally a Devadayam inam attached to a temple at Kara. Government resumed the inam in 1908 or 1909 on the ground that the services were not being performed and granted a ryotwari patta to one Ankitam Raja Rao who was in fact the hereditary trustee. The validity of the resumption was challenged in O.S. No. 28 of 1911 of the Temporary Subordinate Judge's Court, Masulipatam. Meanwhile Ankitam Raja Rao had transferred the village to three others. The suit (O.S. No. 28 of 1911) was instituted on 20th April, 1911, and on 26th April, 1911, the present plaintiff-respondent entered into an agreement with the three persons aforesaid to purchase the village. This was completed by Ex. K, 19th August, 1911. Subsequently, plaintiff-respondent paid the assessment demanded by Government and obtained a patta, Ex. N, of the village in his own name on 26th January, 1914. The suit, O.S. No. 28 of 1911, was decided on 8th February, 1916, the Court holding that the resumption was illegal and in the absence of an appeal this declaration became final and established the right of the temple to the inam. The plaintiff's case in the present suit under appeal was that the consideration for the levy of the assessment had failed, he having purchased the property in the belief that Government was the owner and that his title had been recognised by the grant of patta to him. The plaintiff also pleaded that he had obtained no benefit by the sale and grant of patta as the tenants had disputed his title to recover rent from them. The District Judge held that there was a contract between Government and plaintiff and that this contract was void under Section 20, Contract Act, as both parties were under a mistake as to a matter of fact essential to the agreement and that it was not necessary for plaintiff to show that he had had to pay damages to a third party (in this case, the temple) before he could recover. Consequently under Section 65 of the Contract Act the plaintiff was entitled to recover. ft has not in fact been decided by the Lower Court whether plaintiff did obtain any and what benefit from this transaction and we were urged by Mr. T. M. Krishnaswami Aiyar to send the case back on this ground alone, but on the view of the matter that 1 take, I think this will be unnecessary. I am by no means convinced that plaintiff was in April, 1911 under any mistake of fact. Ex. K recites that the lands sold to plaintiff are in the claim and enjoyment of the vendors. On 30th May, 1912 plaintiff petitioned to relinquish 102 acres of what he had bought by Ex. 1 (a), which was accepted on 16th November, 1912. In Ex. P plaintiff asks that in a suit between himself and a tenant the case should be kept pending a possible appeal by Government against the order declaring the resumption illegal. That was in 16th February, 1916. That suit and others were dismissed on 21st February, 1916. In Ex. III, dated 25th August, 1917, plaintiff applied for a refund of the assessment paid. The Collector in his order, Ex. IV, dated 6th June, 1918, points out that no mesne profits were claimed or allowed to the temple in O.S. No. 28 of 1911. He continues that no refund can be allowed as the patta with the fixed amount of assessment was accepted by petitioner, who was in possession of the village on strength of the patta and made the payment of assessment voluntarily. On these documents it is impossible to say that a case of mistake has been established. The facts are equally consistent with the plaintiff having with his eyes open contracted for the village in question and as being willing to run the risk either of an appeal by Government succeeding or of his ability to extract rent from the tenants. There is no evidence that plaintiff did not know that suit O.S. No. 28 of 1911 had been instituted at the date of his contract on 26th April, 1921 and he has not gone into the witness-box to deny it. That suit was dismissed by the Subordinate Judge on 11th January 1913 and on remand, decreed on 8th February, 1916. The plaintiff applied for patta on 26th January, 1914 and was thus perfectly well aware at least at the latter date that the matter of the resumption of the inam was being litigated.
2. The Privy Council case cited in Harnath Kunwar v. Indar Bahadur Singh ILR (1922) A 179 : 44 MLJ 489 depended on a misapprehension of the private rights of the vendor. There can be no such misapprehension here when plaintiff accepted patta and when he knew the title of Government was being questioned in litigation. On the point of the existence of a contract between plaintiff and Government, it is necessary to consider the nature of a patta, as to whether it is a contract or, a grant of the land itself. In The Secretary of State for India v. Venkatapatha Raju : (1912)23MLJ746 , it was held that the liability to pay revenue does not rest on contract or some relation resembling contract. In The Secretary of State for India in Council v. Kasturi Reddi : (1902)12MLJ453 Bhashyam Aiyangar, J. says it is in the nature of a mere bill and is not and does not purport to be in the nature of a grant or conveyance. He held that the question whether a patta was issued or not was immaterial on a question of title. See also The Secretary of State for India v. Raghavachariar : (1924)47MLJ503 . The same learned Judge in Gunnaiyan v. Kamakshi Aiyar ILR (1902) M 339 considering the nature of resumption says, ' Even, when the Government exercises its right of resumption, it rarely, if ever, resumes the land even if the land itself had been granted as inam. It simply resumes the full assessment and it does so by the imposition of full assessment upon the land and converts it into ordinary ryotwari tenure.' [See also Boddupalli Jagannadham v. The Secretary of State for India in Council ILR (1903) M 16 and Muhammad Esuf Sahib v. Moulvi Abdul Sathur Sahib ILR (1918) M 161 : 36 MLJ 262.
3. These authorities are in my opinion conclusive on this question and therefore the issue of a patta not only did not convey the land in question from Government to the respondent but did not even create a contract in respect of the land between them.
4. The remaining question is one of limitation. The District Judge has held that Article 96 applies and that the suit was brought within three years of plaintiff's discovery of the alleged mistake. The respondent here relies on Article 96 or 120. On the other hand appellant refers to Section 59 of the Revenue Recovery Act (II of 1864) made applicable by Section 29 (1) of the Limitation Act and alleges that the cause of action arose on 8th February, 1916 when the resumption was declared illegal. Section 59 of Act II of 1864 reads as follows:
Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as hereinbefore provided, from applying to the Civil Courts for redress : provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.
It was held in The Secretary of State for India v. Nagaraja Aiyar : AIR1923Mad665 that the section was confined to cases of persons being aggrieved by illegal or irregular proceedings taken for collection of revenue under the provisions of the Act. I am of opinion that the collection of assessment from the plaintiff might fall within this definition, but we have no details and there is no evidence of the circumstances under which the collections were made. It is not, however, necessary in the view I take of the facts in this case and of the effect of the grant and acceptance of a patta to decide the point definitely. In my opinion the appeal succeeds as to the return of the assessment levied and must be allowed with costs throughout.