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Sundaram Ayer Vs. Kulathu Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1930Mad61
AppellantSundaram Ayer
RespondentKulathu Iyer and ors.
Cases ReferredRadhakrishna Ayyar v. Sundarsivami Iyar A.I.R.
Excerpt:
- - there seems some reason to suspect that, if the validity of the appellant's claim were conceded, the safeguards provided for the tenant by the act with regard to patta and muchilika will prove illusory and in practice enable the landholder to reduce section 52 (3) to a dead letter in some cases like the present......is a statement to this effect:further the patta for fasli 1321 was only a waram patta and not a pattam patta.6. the case of the appellant here, however, is that for fasli 1321, no patta was in fact tendered by the plaintiff or accepted by the defendants. the learned advocate for the appellant suggests that this statement in the lower appellate court appeal memorandum is probably a mistake and that the reference to patta for fasli 1321 should really be, to patta for fasli 1322. whatever might be the real explanation for this, there is, as i stated, the fact proved in this case that in respect of at least one fasli after the coming into force of the madras estates land act the plaintiff's father (the then lessee) did tender a patta containing rates which support the plea of the.....
Judgment:

Anantakrishna Ayyar, J.

1. Plaintiff is the appellant in these second appeals. Summary Suits Nos. 44 etc. of 1916 and Nos. 36 etc. of 1917 were instituted by the plaintiff-appellant in the Court of the Honorary Deputy Collector of Tinnevelly Division to recover rent due in respect of properties in the possession of the ryots defendant in the inam village of Vagaikulam. The inam village belongs to Sri Vyasaraya Swamigal Mutt at Sosalai in the Mysore State. The practice of the Mathadhipati had been, as is disclosed by the evidence in these cases, to grant leases to persons for different terms authorising them to recover the rent from the ryots in possession of the lands. It is in evidence that leases for particular terms were granted, among others, to the father of the plaintiff. The last of the said leases came to an end with fasli 1321; and the plaintiff obtained a lease for faslis 1322 to 1331 from the Mathadhipati, and on the basis of the said lease he instituted the various suits mentioned by me to recover arrears of rent due for faslis 1322, 1323 and 1324.

2. In the plaints, the plaintiff claimed rent on the basis of 'waram.' The defendants pleaded that it was the 'sharing system' that was in vogue in the village, but that the rates claimed by the plaintiff were not the correct rates and that the correct rates of rent were those paid by them to the plaintiff's father, the previous lessee. As I said, though both claims involved division of the produce, yet, there was difference as regards the proportion in which the produce was to be divided according to the contention of the plaintiff and the defendants, the plaintiff claiming more, while the defendants contended that the plaintiff was entitled only to a less proportion of the produce.

3. When the present suits were filed, there was pending in the High Court a batch of second appeals preferred by the plaintiff's father as lessee against other ryots of the village to recover rent due for certain faslis. A similar contention was raised in those suits also, and though the Deputy Collector had accepted the contention of the plaintiff, the landlord in those suits, the District Court had modified the decree passed by the Deputy Collector and consequently, second appeals were preferred to the High Court in which similar questions were raised. The parties agreed to have the hearing of the present suits adjourned from time to time so that they may have the benefit of the High Court's decision in the second appeals mentioned by me. The final decision of the High Court was pronounced, after findings had been called for by the High Court, and submitted by the then District Judge, only on 23th December 1916: vide Ex. H (6) in the case. The real trial of the present suits, therefore, began only after the said judgment of the High Court was passed. Though the present defendants were not parties to the litigation that was pending in the High Court, yet having regard to the fact that similar questions had to be decided in the present suits, the judgment of the High Court was treated as evidence on the points on which the parties were at issue in the present suits. The Deputy Collector considered the judgment of the High Court and the other evidence adduced by the parties to the present litigation and came to the conclusion that the contention of the plaintiff as regards the proportion in which the produce was to be divided was the correct one according to the evidence adduced in the case. There were, however, other disputes raised before him about the plaintiff's right to recover certain cesses. I may mention that as many as nine cases were the subject of dispute between the parties. The Deputy Collector upheld the contention of the plaintiff in respect of seven out of the nine cases; and in respect of two, namely Kalvainazar and Yavanai, he held that, though the High Court had in the previous litigation upheld the validity of the same, yet, having regard to the evidence adduced by the parties in these present suits the plaintiff was not entitled to recover these two cesses. There was another important question raised before the Deputy Collector with reference to the amount of rent due to the plaintiff for fasli 1322. To properly appreciate the exact contention between the parties relating to the dispute regarding the rent due for fasli 1322 I must mention that, during the existence of the lease in favour of the plaintiff's father, the plaintiff's father had admittedly exchanged pattas and muchilikas for faslis 1315 and 1316. It was a point for decision whether there were subsequent pattas tendered by him for subsequent faslis.

4. The Deputy Collector held that having regard to the provisions of Section 52 (3), Madras Estates Land Act, pattas which were in force during the currency of the lease granted to the plaintiff's father continued to be in force for faslis 1322 also and, consequently, the plaintiff, who tendered a patta for fasli 1322 which was not accepted by the defendants, was not entitled in this suit to recover rent at a rate different from that mentioned in the patta exchanged by the previous lessee. There was also a further question as regards interest, and also as to the liability of one Kulathu Ayyar, defendant in summary suit 48 of 1916. The plaintiff preferred appeals to the District Court against the disallowance by the Deputy Collector of the two cesses mentioned above. He also appealed against that portion of the decree of the Deputy Collector wherein he disallowed the plaintiff's claim to rents at the higher rates at which he had tendered pattas for fasli 1322. On appeal the learned District Judge discussed the applicability of Section 52 (3), Madras Estates Land Act, in paras. 18 to 22 of his judgment. His decision was that the Deputy Collector was right in his view that the plaintiff was not entitled to the higher rate of rent in respect of fasli 1322.

5. The main arguments raised before me by the learned advocate for the appellant in these second appeals, turn on the correctness or otherwise of the decision of the lower Courts on the applicability of Section 52 (3), Madras Estates Land Act, to the suits in question, so far as the rent for fasli 1322 is concerned. In the first place, it was argued that there was no patta tendered to these defendants after the coming into force of the Madras Estates Land Act, namely after 1st July 1908. It was contended that the very basis for the application of Section 52 (3) would be wanting as no patta tendered prior to the coming into force of the Madras Estates Land Act would according to the contention, attract the result mentioned in Section 52 (3). With reference to this argument it was pointed out by the learned advocate on behalf of the respondent that, as a matter of fact, Ex. 4 is a patta on record exchanged by the plaintiff for fasli 1312 that is for the year beginning from 1st July 1908 and ending with 30th June 1910, that is, for a period after coming into force of the Madras Estates Land Act. To this it was replied by the learned advocate for the appellant that this solitary patta would not be an answer so far as the other defendants to these suits are concerned. In answer to this it was urged that the case was conducted in the lower Courts on the footing that there was no difference between the reliefs to be decreed as against one defendant, and other defendants in these several suits, and probably it was on that understanding that patta granted to one particular ryot only, out of the several defendants ryots, for fasli 1319 was exhibited. Whatever might be the real reason, I think, having regard to the way in which these cases were conducted in the lower Courts and having regard to the agreement between the parties that the evidence in the main case was to be taken as common to all the other cases and that the decision was to be arrived at on the common evidence, that the circumstance that pattas tendered to other defendants for fasli 1319 have not been exhibited should not make any difference in my decision of these several second appeals. Having thus before me the patta tendered for fasli 1319, I think the distinction which was sought to be drawn by the learned advocate for the appellant, that Section 52 (3), Madras Estates Land Act, would not apply to these cases, does not exist. My attention was also drawn to the circumstance that in ground 11 of the grounds of appeal preferred to the lower appellate Court there is a statement to this effect:

Further the patta for fasli 1321 was only a waram patta and not a pattam patta.

6. The case of the appellant here, however, is that for fasli 1321, no patta was in fact tendered by the plaintiff or accepted by the defendants. The learned advocate for the appellant suggests that this statement in the lower appellate Court appeal memorandum is probably a mistake and that the reference to patta for fasli 1321 should really be, to patta for fasli 1322. Whatever might be the real explanation for this, there is, as I stated, the fact proved in this case that in respect of at least one fasli after the coming into force of the Madras Estates Land Act the plaintiff's father (the then lessee) did tender a patta containing rates which support the plea of the defendants and, as 1 have already said, no distinction can be made between the case of defendant 1 and another, having regard to the manner in which this batch of cases has been tried in the lower Courts.

7. The second argument raised by the learned advocate for the appellant in support of his position that Section 52 (3), Madras Estates Land Act, does not apply to these cases is this. The section evidently contemplates cases where the person who exchanged the previous patta is either the very person who is the plaintiff in the present case, or any other person who is the representative in interest of the person who tendered the previous patta; and that, as it is admitted in this case that the previous patta was tendered not by the landlord, the Matadhipati, but by a lessee from him for a term of years, therefore, it was argued that, the patta does not enure after the expiry of the lease and that Section 52 (3) could not apply to such a state of circumstances. I had to consider this question in a recent case from Madura, and having regard to the arguments advanced before me then, I came to the conclusion that argument was not sound. I had the benefit of another argument in this case, and I may say that I have not been convinced that my previous decision was in any way erroneous.

8. The policy of the Madras Estates Land Act would seem to be that ryots should know the exact terms and conditions on which they are holding the properties for any particular fasli, and in case there should be any important changes in the terms of the holding they must have some reasonable notice of the same. That such is the intention is clear from the wording of several sections of the Act. The definition of 'landholder' in Section 3 (5), Madras Estates Land Act, is wide enough to include also the lessee from the owner or the landlord. There are other provisions of the Act-namely those relating to (1) to commutation of rent, (2) to enhancement of rent and (3) to the conferring of permanent occupancy rights on tenants: see Sections 40, 30 and 6 of the Act, which contemplate that the landholder under the Estates Land Act would include also lessees in the position of the plaintiff's father and in the position of the plaintiff. It was asked on what principle of law could it be said that the landholder claims from the lessee? It is true that though the lessee could be said to claim from the lessor, it cannot, according to the ordinary law, be said that the landholder is the representative of the lessee. But as remarked by the Privy Council in the case reported in Radhakrishna Ayyar v. Sundarsivami Iyar A.I.R. 1922 P.C. 257 (of 45 Mad.) the question is not whether the plea is res judicata is the sense that it is binding upon a person who is the representative of the prior party who is bound. After quoting a sentence from the decision of the Divisional Officer in that case to the following effect:

I therefore find that the previous judgments are res judicata in these suits as they have gone fully into the question of custom relating to the different stipulations in the patta.

9. Their Lordships observe:

However natural it may have been to treat the position thus, their Lordships cannot sustain on any legal grounds the plea of res judicata here suggested. In the language of the High Court, the answer is that the general doctrine of res judicata is not in question, but the application of the special rule stated in Section 52 (3), Estates Land Act, under which muchilikas decreed for any revenue year remain in force until the beginning of the year for which fresh ones are exchanged or decreed, and that there is no reason for restricting the scope of the general reference to muchilikas decreed to those decreed by any description of Court, With this view the Board is in full agreement

10. If I understand the reasoning of their Lordships aright, their Lordships, while upholding the plea of the defendants to the effect that the judgment of the revenue Court under Act. 8 of 1865 relating to rates of rent does not constitute the matter res judicata, because according to the ordinary requirements of the doctrine of res judicata the Court which decided the first suit should have competency to entertain the subsequent suit under the Madras Estates Land Act-at the same time held that adjudication in these prior suits as regards the terms of a patta was such as attracted the special provisions of Section 52 (3) of the Act. Turning to Section 52 (3) of the Act I find that a patta accepted for one fasli shall remain in force until the commencement of the revenue year for which fresh pattas and muchilikas are accepted, exchanged or decreed. The decision of the Privy Council is direct authority in support of the position that the section applied to cases where the previous pattas were the subject matter of a decree between the parties. Even in such cases, though the doctrine of res judicata did not apply, they held that the parties were bound, having regard to the provisions of Section 52 (3), by the pattas so decreed. In my view the same reasoning will also apply to pattas and muchilikas which were accepted or exchanged between the parties for the previous fasli. I am accordingly of the opinion that even if the present suits were instituted by the landlord, I should arrive at the same conclusion. Though the lessor could not be said to be the representative of the lessee, yet, having regard to the special provisions of Section 52 (3), patta exchanged for the previous fasli should be taken to be in force for purposes of these second appeals, so far as the rent for fasli 1322 is concerned. One further argument was advanced on behalf of the respondent. In cases where the landholder exchanged patta for one fasli, the same will be deemed to be in force in the succeeding fasli under Section 52 (3); he cannot evade the applicability of Section 52 (3) by giving a lease and putting the lessee in a position to exchange pattas. If the landlord cannot evade the section, then the lessee from him should also be held to be unable to escape the applicability of the section. In the case before me the landlord, having granted a lease for a term of years, placed the lessee in the position of the landholder, and the patta tendered by the lessee in the usual course should have the same force as if the same was tendered by the landholder himself. In this connexion I should draw attention to Section 27, Madras Estates Land Act, where it is enacted that

if a question arises as to the amount of rent payable by a ryot or the conditions under which he holds in any revenue year, he shall be presumed, until the contrary is shown, to hold at the same rate and under the same conditions as in the last preceding revenue year.

11. By that section a rule of presumption is enacted and the Courts are entitled to presume that the conditions of tenancy for a particular year continue to be in force in the year immediately following. When we turn to Section 52 we find that it is not merely a question of presumption for the section enacts that pattas 'shall' remain in force etc.; so that the legislature for reasons of its own thought it proper to enact Section 52 in a way different from that in which Section 27 is worded. After all, it is open to the landholder in such cases to take proper steps to have what he alleges to be his real rights enforced, and if he waited without taking such steps, the section says that the previous patta shall remain in force until certain things are done.

12. The learned District Judge in dealing with this question observes as follows: see para. 19:

On the other hand the Act does not make any distinction between a proprietor's patta and muchilika and a lessee's patta and muchilika; there seems some reason to suspect that, if the validity of the appellant's claim were conceded, the safeguards provided for the tenant by the Act with regard to patta and muchilika will prove illusory and in practice enable the landholder to reduce Section 52 (3) to a dead letter in some cases like the present.

13. Similar observations were made by the Deputy Collector also in support of the defendants' contention and he also came to the conclusion that Section 52 (3) applied to these cases.

14. For the foregoing reasons, I am of the opinion that the lower Courts were right in these cases in coming to the conclusion that Section 52 (3) applied with reference to the claim of the landlord for rent for fasli 1332. I am not here concerned with the claim for rent for faslis 1323 and 1324, as there is no appeal before me regarding the same. (After considering the subsidiary question of Kalvainazar his Lordships dismissed the appeals and cross-objection and proceeded).

LEAVE TO APPEAL.

15. Though I feel that this litigation which started in 1915 should come to an end by this time, I regret 1 am unable to give effect to the same; for one of the questions raised in this batch of second appeals relates to the construction of Section 52, (3), Madras Estates Land Act. It was represented to me that there was no reported case on the construction of this section, and in that view I granted leave to appeal in S.A. Nos. 540 to 568 of 1928 where this question arose. Having given leave in those cases, I feel I am bound to grant leave to appeal in these cases also, since the construction of Section 52 (3) arises in these second appeals also. I accordingly grant leave to appeal.


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