John Wallis, C.J.
1. This is a suit brought by the holder of a permanently settled estate to recover water cess, alleged to have been illegally collected from her ryots from Fasli 1315 to Fasli 1323 (1905 to 913) . As regards Fasli 1314, there was then in force an arrangement between Government and the Zemindars that the Zemindars should collect the water cess on behalf of Government from the ryots and pay it over to Government subject to a deduction of ten per cent. for collection. Pursuant to this arrangement, Government made the demand for Fasli 1314. In this oasis on the Zemindarini who paid it, and on 3rd July 1905 instituted Original Suit No. 23 of 1905 for recovery of the money so paid and a declaration that the levy was illegal. Her suit was dismissed by the Subordinate Judge but was ultimately decreed by this Court on 19th March 1914 in Appeal Suit No. 35 of 1908. No question was raised in that suit as to the Zemindarini's right to recover, if the cess had been wrongly levied. The arrangement for the collection of water-cess by the Zemindars having been determined, Government collected the cess for Fasli 1315 and following Faslis from the ryots direct, and the Zemindarini, after obtaining a decree in Appeal Suit No. 35 of 1908, instituted the present suit to recover back the water-cess levied from the ryots for Fasil 1315 and the following Faslis. The Subordinate Judge decreed the suit. The learned Judges, Abdur Rahim, and Oldfield, JJ., who beard the appeal, differed as to the extent to which the claim was barred, and the whole case has been re-argued before us on appeal from the prevailing judgment of Abdur Rahim, J.
2. Act VII of 1865 imposes a statutory water cess, for the use of water for irrigation, from a Government source, upon holders of permanently settled estates and other land-holder, but contains an exemption in favour of the former class to the extent to which they are entitled, by virtue of engagements with the Government, to irrigation free of separate charge. Land-holders were said to engage with the Government for the payment of land revenue, and it is well-settled that the Sannads granted to the holders of permanently settled estates are engagements within the meaning of the Act. It was decided in the plaintiff's appeal in the former suit that the facts of the present case brought it within the exemption, and it is not now questioned that the levy from the ryots of water cess for Fasli 1315 and the following Faslis was wrongful. Further, even if Government had been entitled to levy water-cess, the person directly liable was the Zemindarini and not the ryots as held in Kottilinga Settu Royar v. Sahasranama Aiyar 9 Ind. Cas. 643 . Here, neither the land-holder nor the ryots were liable to pay the cess, and the ryots, by paying it, could not acquire any right of recourse against the land holder under the Revenue Recovery Act, or otherwise Their remedy was to sue the Government to recover back the money levied from them under duress as money had and received to their use, and such a suit would have been governed by the general Article 62 applicable, to this form of action, if the Legislature had not prescribed a special Article, Article 16 with a shorter period of limitation, for this particular class of suits.
3. Having regard to the fact that the plaintiff arranged with the ryots that the water-sets should be paid by them and deducted from their rent and that the plaintiff should be entitled to it if recovered back from Government, an arrangement which was embodied in the great majority of the Pattas and Muchil kas which were exchanged between the Zemindarini and the ryots for Faslis 1315 to 1318, it has been contended before us that these Muchilikas may be treated as transfers in writing by the ryots to the Zemindarini of the ryots' actionable claims to recover back the money illegally levied from them.
4. This contention may be accepted, subject to the question of limitation with which I will deal separately, but as regards the, period subsequent to 1908, there are no Muchilikas which could be regarded as transfers in writing satisfying the provision? of Section 130 of the Transfer of Property Act, as the practice of exchanging Pattas and Muchilikas was discontinued after the coming into force of the Madras Estates Land Act of 1908.
5. Coming now to the causes of action alleged in the plaint, the plaintiff's case, as stated in paragraphs 11 to 13, was that it was arranged between the Zemindarini and the ryots that the ryots were to deduct the water-cess claimed by Government from the wet rate of rent payable by the ryots to the Zemindarini and pay it to Government on her behalf. It is not alleged that Govern meat made any direct demand upon the Zemindarini, or was a party to the arrangement between the Zamindarini and the ryots by' which the water cess demanded of them was to be regarded at paid by them on account of the Zamindarini. If the Government had demanded payment of the water-cess from the Zemindarini, she might of course have arranged with the ryots to pay it on her behalf, but I do not find any evidence of such a demand. Government bad, for a long time, been employing Zemindars to collect water cess from the Zemindari ryots on their behalf for a remuneration of ten per cent, of the collections, and when they abandoned this system, they made the demand on the ryots and not on the Zamindarini. In these circumstances, I do not see now the Zamindarini can claim to recover back the money as illegally levied from her which it was not. The fact that if water cess had been payable they might have called on the Zemindarini to pay it seems to me immaterial.
6. In paragraph 15 of the plaint the cause of action is stated to be the loss caused to the plaintiff by disentitling and preventing the plaintiff from collecting the usual wet rates of assessment from the ryots. The action of the Government in levying an illegal cess from the ryots did not relieve them from their obligation to pay their existing rents to the Zemindarini, or give them any recourse against, her as she cannot be held to have entered into any contract to indemnify them against illegal demands by Government. Their remedy for such demands was not against her bat against the Government. This cause of action, therefore, is not made out.
7. Paragraph 16 of the plaint, as I, understand it, alleges that by illegal collection of the cess Government caused loss to the plaintiff by preventing the Zemindarini from adding the amount' of the water cess to the rent in the course of her usual increments of Cist as she would otherwise have done. This illegal demand from the ryots and its enforcement may have affected the letting value of the land, but putting forward an unfounded claim to a charge on another man's land, is not an actionable wrong, unless it be done maliciously and occasions special damage when it amounts to actionable slander of title. No such cause of action has been relied on in the argument. It is not alleged that the action of Government was malicious and there is no pretence for saying that it was not a bona fide claim of right which is not an actionable wrong.
8. I have now dealt with all the causes of action alleged in the plaint. The learned Judges who heard the appeal have treated the suit as one for damages for a breach by Government of an implied contrast arising out of the permanent Sannad to supply water to the Zamindarini free of water tax, and have held that, in so far as the suit is not barred, the plaintiff is entitled to recover by way of damages the cess levied from the ryots. This is not the case laid in the plaint nor has the Sannad been put in evidence. The usual Sannad, as interpreted by the Privy Council in Kandukuri Balasurya Prasadha Bow v. Secretary of State 41 Ind. Cas. 98 no doubt entitles the plaintiff to the use of the water in question for irrigation subject only to the payment of the Peishoush, or permanently settled land revenue. In the present case, the Government have neither interfered with the supply of water nor made any demand for land revenue or otherwise from the plaintiff. What they have done is to levy from the ryots statutory water cess in a case where the Statute does not authorize the levy, and to levy it not from the Zemindarini from whom it ought to have been levied if leviable at all, but from the ryots. Having regard to the fact that the levy from the ryots was not protected by the Statute, it may have been open to the plaintiff to treat it as a breach of the contract in the permanent Sannad, if the Sannad can be read as containing an implied contract not to make any such demand on the ryots, This, however, is a Suit by the plaintiff to recover from the Government the water cess actually paid to them by the ryots, and not a suit for damages caused to the plaintiff by reason of Government having made an illegal demand on the plaintiff's ryots contrary to an implied contract to be gathered from the terms of the permanent Sannad The damages in such a suit would be the loss actually resulting to the plaintiff from the demand on the ryots and not the amount of the cess levied from them by Government. The suit is not framed as one to recover damages from breach of such an implied contract, nor has the plaintiff given any evidence of the damages she would have sustained if she had left the ryots to pay the Government demand and sue to recover it back. In these circumstances, I do not think we are called on to deal with the case on that footing.
9. There only remains the question of limitation, as regards the actionable claims of the ryots which may be regarded as having been transferred to the plaintiff by the Muchilikas executed by the ryots in the plaintiff's favour down to the year 1908. Prima facie, those claims are all barred under Article 16, but it has been contended before us that they are not barred because the plaintiff's own suit, Original Suit No. 23 of 1905, which raised the question of the Government's right to levy the cess was pending, or under appeal, when the water-cess now in suit was levied. The fact that when a cause of action arose the plaintiff or some body else had a suit pending which raised the same question does not exempt him from the operation of the Limitation Act, nor does the decree in that suit give him a fresh cause of action with refresh starting point. In the resent Full Bench case, Sir Abdul Rahim, Officiating Chief Justice, on further consideration, had not adhered to the opinion expressed in the judgment under appeal that the plaintiff was not bound to sue on her present cause of action until the decree of the Subordinate Judge dismissing the suit with reference to the previous Fasli had been reversed, because till then she could not have sued successfully. In the argument before us, Mr. A, Krishna-swami for the plaintiff relied strongly on the decision of the majority of the Fully Bench in Jogesh Chunder Dutt v. Kali Churn Dutt 2 C. 30 . All that was decided there was that a tenant, on the reversal of a decree ordering him to pay rent at a certain rate, was entitled to recover the excess rent paid by him under subsequent decrees passed on the basis of the first decree while it was under appeal, although he had not preferred separate appeals against such decrees. It is said to follow logically that when, in the case of a recurring cause of action, a plaintiff has failed in his first suit and has appealed against the decree dismissing his suit he is entitled to wait until the appeal has been disposed of finally before suing in respect of the subsequent cause of action. It is immaterial whether this conclusion follows logically or not, because it is opposed to the express provisions of the Limitation Act as to the institution of suits within the prescribed periods. On the other side the decision of the majority of the Full Bench in Jogesh Chunder Dutt v. (sic) Churn Dutt 1 Ind. Dec. 611, which was recently followed by me in Bommadevara Venkata Narasimha Naidu v. Rani Venkatappayya 54 Ind. Cas. 647 as laying down a rule of practical convenience in the circumstances of this country, has been attacked as infringing the rule in Marritt v. Hampton 101 E.R. 969. As to this, I will only say now that I do not think this objection is necessarily fatal. The exceptions which Lord Mansfield was anxious to engraft upon that rule in Motes v. Macpherlan 97 E.R. 676 may not have been accepted in England, but the conditions of Indian litigation are exceptional, and the hardship of requiring the unsuccessful party in the first suit to go on defending subsequent suits and appealing from the decrees passed in them year after year for the sole purpose of complying with Harriot v. Hampton 101 E.R. 969 while the main suit pursues its slow way through three Courts in India to the Privy Council is undoubtedly great. In the case of rent suits which are filed in bathes, these appeals may have to be filed annually in hundreds. Such a state of the law is far from ideal, at any rate for the litigant, and 1 think that, in deciding as they did, the majority of the Full Bench were actuated by this consideration as well as by the fact that in Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203 , the Privy Council had held that, in the circumstances of that case, a suit would lie to recover back money paid under a decree, against which no appeal had been preferred, where in the later suit the Court had merely followed the judgment in the main suit which was then under appeal and was afterwards reversed.
10. I think the plaintiff's suit fails and that the appeal should be allowed in toto and the suit dismissed with costs throughout, whereas my learned brothers consider that she is entitled to the cess for one year. Oar decree, of course, is only decisive of the legal merits of the case. I observe that the only evidence given for the defence was to the effect that the ryots were claiming that the refund should be made to them notwithstanding the fact that the amount of the cess levied from them by Government was deducted from the rent payable by them to the Zemindarini so that the loss really fell on her. If this was an obstacle to a refund being made to the Zemindarini or her representative, it may be removed by the decision of the Court that the ryots' claims are clearly barred.
11. I have had the advantage of perusing the judgments of my Lord, the Chief Justice, and my learned brother Coutts-Trotter, J., and feel it unnecessary to say mush. As regards the maintainability of the suit, I agree with the latter that, if treated as a suit for damages, it oust fail for remoteness: but that it is maintainable on the basis that the payments of water cess to Government were made by the ryots under arrangement with the Zamindarini, and as her agents. On this footing plantiff is entitled to sue to recover from Government these sums which are now admitted to have been illegally collected but such a suit will be governed by Article 16 of the Limitation Act, and plaintiff will only be able to recover payments made within a year before suit.
12. The main argument before us has been over the question whether the suit should be treated as one of a special nature analogous to that whish was under consideration of the Privy Council in Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203 I feel no doubt that it should not. The peculiar circumstances of that case were clearly and exhaustively explained in the judgment of Garth, C.J., in Jogesh Chunder Dutt v. Kali Churn Dutt 2 C. 30 , with whish I respect-fully and entirely agree. If the payments by the ryots in the present case had been made under decrees of Courts, it could not be said that those decrees had been 'superseded' to use the unusual term employed by Turner, L.J., in his judgment in Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203, by the decree of this Court in Appeal Suit No. 35 of 1908. No suit for their recovery would, therefore, lie merely by virtue of the latter judgment. If it had, it might be contended (whether correctly or not, I do not say), that the benefit of the doctrine should not be confined only to persons who had paid money under decrees, but extended to those who had paid under protest without waiting to be sued. But it is impossible to extend an inapplicable doctrine, and, apart from Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203 , no authority has been quoted for holding that the declaration in this Court's judgment in Appeal Suit No. 35 of 1908 gave plaintiff a fresh right to sue to recover sums previously paid. I agree in the order proposed by Coutts-Trotter, J.
13. The plaintiff in this suit is the Zamindarini of Vegayammapets and she sued the Secretary of Stats for India to recover a sum of Rs. 55.142-1.3 together with interest being the sum the Government has levied from the ryots in her villages as water-cess.
14. It appears that in 1304 Government carried out a revision of the register of Mamool, wet, land and as a result declared certain lands to be liable to water cess on which it had never been levied before. The Zamindarini instituted a suit; Original Suit No. 23 of 1905, in the Subordinate Judge's Court of Cocanada denying the right of Government to levy the new cess and claiming to recover the amount paid by her under protest for the preceding year. The Court of first instance decided the suit in favour of Government, but in 1914 the High Court reversed that decision and decided that Government had no right to demand the cess, and that the Zemindarini was entitled to free water for the use of her ryots on the footing of the land being Mamool, wet. In the years that intervened between the decision of the Subordinate Judge in favour of Government and the final reversal by the High Court in March 1914, the water-seas was paid on demand' by the ryots to Government, and it is not disputed by the learned Government Pleader that those payments may be taken as having been made under protest. The question is, whether the Zamindarini can get them bank.
15. The legal position with regard to the collection of cess in Zemindari lands appears to be free from doubt. The liability to pay it to Government primarily rests on the Zemindar, but the Government can elect to collect it direct from the ryots as they did in this case and can ultimately enforce its claim by attachment of the land and its crops. The Zemindar can, and does charge his ryots in computing their rents for the water which he gets supplied free from Government, and that is part of the benefit which was conferred, and was intended to be conferred, upon him by the Permanent Settlement. What was done in this case was that, the Zemindarini remitted to her ryots from their rents the sums which they bad been compelled to pay to Government by way of water cess under threat of attachment. In the earlier years the arrangement is embodied in the Muchilikas. Some are very explicit, as for instance Exhibit Q. 400 where the ryot says: 'As the water-tax that I have been separately paying on your behalf to the Government: is included in your Cist, only you yourself may receive and I shall have no concern with the refund of the said amount that may be made in case that the 'Mamul wet' suit which you are conducting is decided in your favour.' But the earlier ones, of which Exhibit Q. itself may be taken as a sample, really amount to the same thing. 'As the Government has ruled that this land is Merakapallam land (i.e., land on which water-cess is leviable) the water-tax payable on this land is deducted and this Muchilika is executed for the aforesaid Gist of Rs. 29.14 10 (the balance after deducting the cess from the previous rent). You are disputing that this land is only Mamool, wet, but not Meraka dry wet (on which Cist would be payable). If the said land is settle I as Mamool, wet, and a refund of the thieve jasti, (i.e, newly levied Cist) is made, it is agreed that you can receive from the Government the amount of water tax under your reduced Cist.'
16. The first answer of Government to the suit is that the plaintiff has no cause of action whatsoever. It is argued that as the money was levied from the ryots, the wrong done by Government, if any, is wrong done to the ryot and can create no cause of action in the Zamindarini. One suggested cause of action is this, that the illegal levying of water-cess on these lands was a breach on the part of Government of the contrast entered into with the Zamindarini and embodied in the Permanent Settlement, that, owing to that breach, she was compelled to forego a corresponding amount of rent from her ryots, and that that is the damage she suffered. This argument appears to me to break down on the ground of remoteness of the damage alleged. I fail to sep, however reasonable and praiseworthy was the step taken by the Zamindarini in relief of her ryots, how it was a step which she was in any way legally compellable to take and it seems to me that if she had sued the ryots for the full rent without any deduction of the cess it would have been no answer for the ryots to plead that Government had illegally exacted cess from them. I do not think that the matter would be mended if it was proved, as it is not, that the action of the Government rendered the (sic) absolutely unable to pay the full rant to their landlord. The fast that a wrongdoer takes away my debtor's money and thereby rendars him unable to discharge my debt can surely not create a cause of action in me against the wrongdoer.
17. Bat I think that there is a cause of action in the Zamindarini of a different nature and its existence depends on the interpretation of the arrangement between the Zamindarini and her ryots, evidenced by the Muchilikas, Exhibit Q. series. Those documents must clearly mean are of two things; either that the ryots assigned to the Zamindarini their cause of action against the Government for the levy of the illegal tax, or that the ryots agreed to discharge the illegal tax as the agent of the Zemindarini and that the payments to Government are to be treated as her payments which, of course, would leave her free to exercise such rights as she might possess to recover them. The first construction is not pressed, because the Muchilikas only cover three years and the assignment of a cause of action requires writing by the Transfer of Property Act. In my opinion, the second is the true construction of the Muchilikas and the true effect of the arrangement come to, and I think that the payments made to Government in respect of the illegal Cist can be properly treated as payments made by the Zemindarini through her various ryots acting as her agents in that behalf. It is quits true that, after the first three Faslis, the Muchilikas came to an end as owing to the provisions of the Madras Estates Land Act (Mad. Act I of 908) the annual exchange of Pattas and Muchilikas was dispensed with. Bat payment of cess by the ryots continued, and, in accordance with well known principles, I think it clearly must be held that the payments were continued on the terms of the same arrangement as was embodied in the Muchilikas of the preceding years. Indeed, this seems to be expressly provided by Section 52(3) of the Estates Land Act. With great respect to the contrary opinion of the Chief Justice, I do not see how the fact that Government was no party to any tripartite agreement as to how the payments of cess were to be regarded can alter their character. If I pay a debt, or elect to pay under protest a sum which is demanded from me, how can my creditor demand to be consulted as to whether I shall pay it myself or by my agent? So long as he gets his money, it is immaterial to him from whose actual hand he received it: he would refuse a tender from one who purported to be my agent at his peril; and if I could prove that in fact the tenderer was my agent, it would not save him to prove that he had not assented to the relation, I was at one time impressed by the argument that, as this was an illegal exaction, it could only be recovered by those whose money had actually been taken, and that it was, therefore, immaterial to consider whose payment it would have been in the eye of the law, had it been legal. But I think that that argument is unsound. The ultimate remedy in Government's hands is by attachment of the land and its produce, and the power given by the Act to sue either the Zemindar or the ryot is merely machinery for carrying out conveniently what is, in its essence, a right over the land itself. I think that it was competent to those interested in the land to agree among themselves as to which of them should be deemed to bear the incidence of the exaction which they all contended to be illegal I am, therefore, of opinion that the Zemindarini had a good cause of action against the Government for the return of the money wrongly taken from the ryots. What precise label an English lawyer would affix to that cause of action, whether he would call it money had and received to the use of the plaintiff, or money paid on a consideration which failed, or money extorted by duress, is really not material to consider. A right of action to recover money paid under protest in satisfaction of a claim made by the revenue authorities on account of arrears of revenue is expressly recognised by Article 16 of the Limitation Act.
18. This brings me to the second paint in the case. It is argued op behalf of Government that under Article 16 of the Limitation Act the period of limitation is one year and that the Zemindarini's right to recover is limited to the cess paid in the year, immediately preceding the institution of the suit. If this be so, it would be fatal to all but a fraction of her claim which covers the whole period from 1906 to 1914. The plaintiff relies on a decision of the Privy Council, followed in the Indian High Courts, as establishing the principle that on the reversal by the High Court of the judgment of the Subordinate Judge's Court of Cocanada in Original Suit No. 23 of 1905, a new cause of action was created in the plaintiff to sue for the recovery of all moneys paid by her to Government in the intervening years in which ex necessitate rei she paid the cess, doubtless under protest, but instituted no suit for the return of the money. The position sought to be established is this. If A brings a suit against B, which the first Court decides in B.'s favour, if A. then in succeeding years brings other suits against B. raising exactly the same question or questions of right but in respect of fresh sums of money which suits also are all decided in B.'S favour, if then finally the original suit on appeal is ultimately decided in favour of A., he becomes as from that moment entitled to institute proceedings to recover the moneys he unsuccessfully sued for in the intervening suite, though he has not appealed against, much less procured the reversal of those intervening decisions. Conversely, if moneys are recovered by the plaintiff in a series of suits of which the first is finally decided adversely to the plaintiff the defendant would have a fresh cause of action when the appellate judgment was promulgated to recover back the moneys which he had been compelled to pay under the intervening judgments though he had not appealed from them or got them set aside. It is then said that it is a necessary and logical corollary to hold that the same principle must apply where there is no intervening litigation but the payments have been made or forgone in acquiescence in the original judgment of the Court of first instance and a similar cause of action would arise for payment or recovery of them, as from the date of the final determination in the suit.
19. The first of these propositions is one of so startling a nature to an English lawyer, and of such far reaching effect, that I think that it deserves most careful scrutiny. The foundation of it all is sought in the decision of the Privy Council in Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203 .
20. The fasts of that case have been most carefully analysed and scrutinized in the Indian Courts, on at least two occasion, by Garth, C.J, in Jogesh Chunder Dutt v. Kali Churn Dutt 2 C. 30 , and by my Lord in Bommadevara Venkata Narasimka Naidu v. Ram Venkatappayya 54 Ind. Cas. 647, so that it is unnecessary to go over the same ground again. The key to its explanation appears to me to lie in the fact that the decision of the final Court of Appeal in the first suit, which of course related bask to the date of the institution of that suit, on the face of it, provided for the adjustment of all claims between the parties both present and future. In particular, as pointed out by Garth, C.J., in Jogesh Chunder Dutt v. Kali Churn Dutt 1 Ind. Dec. 611, the order in the first suit in the Privy Council declared that very interest which was the subject matter of the later suits not to be recoverable. The order, thus, in a very real sense, 'superseded'--to use the language of the judgment--any subsequent decrees of the lower Courts which purported to go on adjusting rights which had already been finally adjusted; it did not and did not pretend to repeal them; it could only do so in an appeal in such suits to itself. But it treated them as mere nullities, sham fights over matters which, as it turned out, were predeter mined beforehand. On this view, there is nothing in Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203 , to challenge the doctrine which has been regarded as final with the exception of some dicta of Lord Mansfield, at least since the decision in Marriot v. Hampton 101 E.R. 969, viz., that a decree while unreversed is conclusive of the rights of the parties as to the subject matter with which it deals. If Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203 modifies it, in my opinion it does so only in this respect, that it lays down that if the final determination of the first suit not merely settled the legal principles which should regulate the rights of the parties, but actually resolved their whole dispute present and future, any subsequent litigation, is litigation devoid of a subject-matter, and the decrees and judgments in such litigation can, as from the pronouncement of the final order in the first suit, be regarded as creating no right in the successful party to retain anything he recovered in them, because he had already recovered anything that was due to him by the final adjustment of his rights in the original action. Such subsequent decrees being 'superseded,' and declared to be otiose, it is obvious that be could not in conscience be allowed to retain the fruits of them, and so in effect get his money twice over. I see no analogy between this doctrine and the present case. The original suit brought by the Zamindarini, Original Suit No. 23 of 1905, was for recovery from Government of one year's water-cess; the High Court finally decided that she was entitled to recover it. That was the entire scope and extent of their decision. Next year, another year's water-cess was demanded. It was paid; but it might have been resisted on different grounds to those on which the previous suit had been defended; it might, e.g., have been alleged and proved in a suit that the water supply had totally failed for the year. Could anyone assert, then, that the determination of the Court of first instance in the earlier case would have 'superseded' the decision in the second case? The only way to bring the case within what I believe to be the legitimate scope of the decision in Shama Purshad Roy Chowdhery v. Hurro Purshad Roy Chowdhery 10 M.I.A. 203 would be to posit that the Appellate Court's decree in the first suit had settled the rights of the parties not only in principle but in actual working oat of the figures for the ensuing years--a thing, of course, practically impossible.
21. I am, therefore, of opinion that the doctrine supposed to be enshrined in Shama Purshad Roy Chowdhery v. Burro Purshad Roy Chowdhery 10 M.I.A. 203 is not really to be found there; that the decisions of the majority of Court in Jogesh Chunder Dutt v. Kali Churn Butt 2 C. 30 was wrong, and that the dissenting judgments of Garth, C.J., and Jackson, J., were right. It has been suggest-ed that, without going that length, a distinction might be made inasmuch as this is not a case of money recovered under a judgment or a series of judgments as in the other cases, but of money paid voluntarily, under protest no doubt, but without legal process. It is, of course, a distinction in fact but, logically, it seems to me impossible to say that a man should be able to recover money which he has paid under an actual decision on the facts relating to the particular payment, but unable to recover money which he paid without waiting for a decree against him on the face of it, an a fortiori case, if be has any right to recover it at all. I prefer the more direst course, especially as I think that a vital and salutary legal principle is involved and is unequivocally raised in this case; and I feel, therefore, constrained to say that I think that Jogesh Chunder Dutt v. Kali Churn Dutt 1 Ind. Dec.( 611 and Bommadevara Venkata Narasimha Naidu v. Rani Venkatappayya 54 Ind. Cas. 647 were wrongly decided.
22. I hold, therefore, that the Zemindarini is entitled to recover the cess paid by her ryots in the year prior to the institution of the suit, but for that year alone.
23. The judgment of the Court will be that the plaintiff is entitled to recover cess for Fasli 1323 Rs. 4,807-7-9 with subsequent interest at 6 per cent on Rs. 4,671-3-9 from date of suit until payment. Parties will pay and receive proportionate costs throughout.