Skip to content


Secretary of State Vs. Abdul Rahim and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad1246
AppellantSecretary of State
RespondentAbdul Rahim and anr.
Cases ReferredRaghunath Prasad v. Kaniz Rasul
Excerpt:
- - after his death disputes arose as to the succession and the government acting upon the opinion of the court of sadar amin based upon a fatwa or opinion of the khazi allowed the sons and daughters of mahomed moosa and their children to' enjoy the income of the two villages but decided that the shares of any of the children of mahomed moosa dying without issue should lapse to the government and be added to the jodi of rs. k dated 27th february 1913. apparently the government instead of following out the procedure of the revenue recovery act were led to take such a drastic step by the repeated failure of the heirs of the grantee to pay their dues. clarke to the chief secretary to government, he distinctly says: the collector further recommended the grant of two more villages whose.....1. the plaintiffs brought this suit for possession of two villages in the chittoor district and for other reliefs against the secretary of state for india-in-council. the subordinate judge of chittoor has granted the plaintiffs a decree for possession with mesne profits. the defendant has preferred this appeal against plaintiffs 1 and 4.2. one mahomed moosa was granted a pension of 60 pagodas a month for the term of his life by the east india company in 1800 on the recommendation of col. alexander read, superintendent of baramahal and salem. in 1821 at the request of mahomed moosa seven villages were granted to him in jaghir in lieu of two-thirds of his pension to enure for three successive lives. in 1827 mahomed moosa applied to government for the grant of another village in place of six.....
Judgment:

1. The plaintiffs brought this suit for possession of two villages in the Chittoor District and for other reliefs against the Secretary of State for India-in-Council. The Subordinate Judge of Chittoor has granted the plaintiffs a decree for possession with mesne profits. The defendant has preferred this appeal against plaintiffs 1 and 4.

2. One Mahomed Moosa was granted a pension of 60 pagodas a month for the term of his life by the East India Company in 1800 on the recommendation of Col. Alexander Read, Superintendent of Baramahal and Salem. In 1821 at the request of Mahomed Moosa seven villages were granted to him in jaghir in lieu of two-thirds of his pension to enure for three successive lives. In 1827 Mahomed Moosa applied to Government for the grant of another village in place of six of the seven villages which he could not conveniently manage and the Bast India Company granted him Vellakkuttai and allowed him to retain Gollankuttai. After his death disputes arose as to the succession and the Government acting upon the opinion of the Court of Sadar Amin based upon a fatwa or opinion of the Khazi allowed the sons and daughters of Mahomed Moosa and their children to' enjoy the income of the two villages but decided that the shares of any of the children of Mahomed Moosa dying without issue should lapse to the Government and be added to the jodi of Rs. 10 fixed on the two villages. This practice was followed from 1834 down to fasli 1321 (1911). In Fasli 1321 arrears to the extent of Rs. 1,200 odd were due to Government and to realize the arrears the villages were attached by the revenue authorities. On 30th November 1912 a notice Ex. E was given by the Collector to the descendants of Mahomed Moosa then living:

that the Vellakuttai Jaghir will be resumed, fully assessed and incorporated with Ayan land if all the dues payable to Government are not paid within one month from the date of this notice.

3. The dues not having been paid, Vellakuttai Jaghir was resumed by the Government by notice Ex. K dated 27th February 1913. Apparently the Government instead of following out the procedure of the Revenue Recovery Act were led to take such a drastic step by the repeated failure of the heirs of the grantee to pay their dues. The plaintiffs filed the suit on 27th April 1921.

4. The first point urged by the learned Government Pleader is that the Subordinate Judge's Court of Chittoor had no jurisdiction to entertain the suit by reason of the provisions of Section 4, Pensions Act. 23, of 1871: The argument is that Mahomed Moosa was given a pension of sixty pagodas a month and at his request a portion of the pension was commuted into the grant of land revenue due to Government from certain villages, that the enjoyment of the villages was only in lieu of the money payment settled on Mahomed Moosa, that there was no grant of land to him and therefore, the civil Court's jurisdiction to entertain a suit as regards the grant of land revenue is ousted by Section 4, Section 4 is as follows:

Except as hereinafter provided, no civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the British or any former Government, whatever may have been the consideration for any such pension or grant, and, whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted.

5. Section 6 gives jurisdiction to a civil Court to entertain a claim regarding pension, grant of money or land revenue upon receiving a certificate from the:

Collector, Deputy Commissioner or other officer authorized in that behalf that the case may be so tried, but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.

6. Section 7 contains exceptions to Sections 4 and 6. Section 7 is as follows:

Nothing in Sections 4 and 6 applies to, (1) any inam of the class referred to in Section 1, Madras Act No. 4 of 1862.

7. Clause 2 refers to pensions in perpetuity. Section 1, Madras Act 4 of 1862 deals with enfranchized inams. The exceptions contained in Section 7 do not cover unenfranchized personal inams.

8. The question in this case is whether the grant made by the East India Company in the year 1821 to Mahomed Moosa was a grant of land revenue or whether it was a grant of land alone. It is not seriously disputed that, if there was a grant of land revenue coupled with a grant of land, such a grant would come within the purview of Section 4, Pensions Act, 23 of 1871, or that if it was a grant of land alone Section 4 would have no application. Unfortunately the plaintiffs have not been able to produce the original sanad and the defendant has not been able to produce an office copy of the sanad. Ex. A is a tamil translation of the sanad which was in Mahratti. Ex. I is a letter from Ambross Crawley Esq. Collector in charge of Salem District, to Mahomed Moosa. Ex. 28-A is a letter from Mr. D. Cockburn, Collector of Salem to Mahomed Moosa. The defendant admits that Ex A is a fairly accurate translation of the contents of the original sanad in Mahratti and the contents of Ex. I and 28-A go to show that Ex. A contains the terms of the original sanad. The main recitals in Ex. A which require consideration are the following:

Whereas the Government have, by means of the order bearing date 30th day April 1821, Revenue Board, been pleased to grant the following seven villages in Tirupathur Taluk...having an average beriz of Rs. 1,710-3-7. (i.e., Rs. 1,700-3-7 excluding jodi Rs. 10) to you as jagir for three generations since 13th July of Fasli 1231 for services rendered by you to the most worthy Government of the British Company, whereas you have requested that you would retain Gollankuttai in your possession and that in lieu of the other six villages the village of Vellakuttai might be granted to you, and. whereas the Government have passed an order dated 11th June 1829, accepting your request, the aforesaid six villages shall be entered as belonging to Government; in lieu thereof Vellakuttai and Gollankuttai as before with an average beriz of Rs. 1544-12-2 (i.e., Rs. 272-8-10 for Vellakuttai and Rs. 1,272-2-4 for Gollankuttai) for the entire aycut cultivable lands excluding the six cesses relating to cash income...and including poramboke and Jama-bund maniams and inams and also sundry lease items in respect of pepper, honey, etc, produced on hills and forests have been granted to you as jagir...excepting the aforesaid six cesses including manga tax relating to cash income, the income relating to all other cesses shall belong to you alone. We have got back the sanad granted to you.

9. In the English translation the word 'items' is used. But looking at the tamil document we find the word used is 'baub' which means cesses. So the word 'items' used in the translation is not correct and the word cesses' should have been used. It is admitted that the original of Ex. A which was granted on 23rd July 1829, was similar in terms to the grant of 30th April 1821. The only expression used in order to convey title to the grantee is the word 'grant'. In the tamil copy the word 'jari' is used. The word jari' means handing over, or giving possession or putting one in possession. In order to understand in what sense the word was used we must look at the circumstances in which the villages were made over to Mahomed Moos'a. It is contended for the respondents that the correspondence and surrounding circumstances should not be looked into for the purpose of construing the document. Where the meaning of the words used in a document is clear, the negotiations which led up to the contract or the grant embodied in it should not be taken into consideration for the purposes of either adding to or substracting from its terms, but where the meaning of the words used in a document is not clear it is open to the Court to see what preceded the execution of the document in order to determine what the expression used in the document means, or in what sense the persons who were parties to the document used the expressions which the Court is asked to construe. In Gulabdas Jugjivandas v. Collector of Surat [1878] 3 Bom. 186, at p. 189 their Lordships of the Privy Council observed:

This question depends upon the construction of the sanad; but that construction may be aided by a consideration of the surrounding, circumstances, and of the occasion on which it was granted.

10. Mahomed Moosa was granted a pension of 60 pogodas a month in 1800 on the recommendation of Lt. Col. Read-.Ex. 17. In 1821 the Board of Revenue transmitted a copy of the letter from the Secretary to Government dated 16th February 1821 to the Collector in Zillah of Salem communicating the intention of the Governor-in-Council to grant as jagir to Mahomed Moosa the villages enumerated in the accompanying list-Ex. 3. Mr. Cockburn, Collector of Salem, wrote Ex. 4 to the President and Members of the Board of Revenue, Fort St. George, on 6th April 1821 suggesting that nine villages might be settled on Mahomed Moosa. and his next two heirs. Ex. 4 contains the words:

Having communicated with Mahomed Moosa, he is, I find, desirous of obtaining a jagir grant for such sum in land as the Honourable the Governor-in-Council may think fit to bestow upon him.

11. This letter was forwarded to the Chief Secretary to Government by Mr. Clarke, the Secretary of the Revenue Board for consideration of the Governer-in-Council. Ex. 21 is a letter from the Secretary to Govt. to the President and. Members of the Board of Revenue in which the Government adhered to the proposals in the letter of 16th February, namely the granting of seven villages. It is significant that in the letter of Mr. Clarke to the Chief Secretary to Government, he distinctly says:

submitting a further proposition relating to the grant of revenue to Mahomed' Moosa.

12. We looked at the office copy in Court and we found the word 'land' scored out and the word 'revenue' written over it. A sanad seems to have been made out as directed by the Government in Ex. 21. Mahomed Moosa applied in 1827 for the exchange of the six villages for Vellakuttai. Correspondence went on for some time and the Government agreed to take over six of the villages granted to him and to make over to him the village of Vellakuttai. Whereupon the sanad, the original of Ex. A was drawn up and given to Mahomed Moosa. From the correspondence it is clear that before deciding to make over the seven villages a careful calculation was made as to the amount of revenue due to Government from the villages in order to see whether the revenue from the villages was more or less than the amount of pension which Mahomed Moosa was commuting. Ex. 4, a letter of the Collector of Salem to the Board of Revenue, mentions the average revenue of the seven villages, as:

Rs. 1747-7-9 or pagodas 449-12-2 per annum, making per mensem an average of pagodas 44-27-24 being a trifle more than the sum proposed.

13. Mahomed Moosa asked for the grant of villages in respect only of 2/3 of his pension of 60 pagodas a month. The Collector further recommended the grant of two more villages whose average beriz together with the beriz of the seven villages was Sections 2,685-1-2 or pagodas 767-28 per annum making an average of pagodas 63-41-69 per mensem being pagodas 3-41-59 above his pension. The Government was not prepared to make over nine villages but directed that seven of the villages should be made over in lieu of 2/3 of the pension. In 1828 when the exchange was asked for, a careful calculation was made of the extent as well as the beriz of the villages proposed to be given up by Mahomed Moosa and of the villages asked for. This appears from Exs. 10 and 11. In the light of the correspondence and in the light of what Mahomed Moosa wanted to be done and what the Government was prepared to do can it be reasonably inferred that the Government gave the land in these seven villages to Mahomed Moosa in 1821? Mahomed Moosa was entitled to a pension for life of 60 pagodas. He wanted, as the expression used in Ex. 20 shows, to obtain a jagir grant for such sum in land as the Honourable the Governor-in- Council might think fit to bestow upon him. In considering whether the exchange asked for was equitable or not a careful comparison was made of the beriz of the villages Mahomed Moosa wanted to give up, with the beriz of the village he wanted in exchange, as appeals from Ex. 24. In para. 2 the following Sentence occurs:

The extent of land in the village Which he wishes to hold in jagir is less than the extent which he now proposes, by acres 574-18; the assessment including the waste is however more by Rs. 33-11-8. On the whole the Board are of opinion that the exchange is fair and equitable and recommend that it be confirmed.

14. In this connexion, the learned Government Pleader wanted to rely upon the grant to Subba Rao, the nephew of one Naranappa whose faithful services were commended by Col. Read to the Board of Revenue along with those of Mahomed Moosa (Ex. 15), in order to enable the Court to see what was granted. We do not think that the terms of the grant to Subba Rao are relevant for the purpose of undertanding the terms of Ex. A. If the original sanad granted to Subba Rao, at the same time as that granted to Mahomed Moosa in 1821, were before us, that might be looked into. But any arrangement come to in 1829 with Subba Rao by the then Government would not be relevant in considering the terms of the grant made to Mahomed Moosa in the year 1821.

15. A number of cases were relied upon on either side as to the construction of Ex. A. We may observe that it is not proper to construe the terms of one document in the light of the terms of another. But if terms of art or technical expressions are used, the construction of such terms in other cases would be relevant to the construction of the document under consideration. It would be worse than useless, to discuss at length a case in which the terms of the grant are different from those of the one before us.

16. The question whether Mahomed Moosa was granted the revenue of the villages or the land itself came up for consideration before the High Court in another case. In that case the dispute was between the descendants of Mahomed Moosa and the tenants. One of us decided that the grant was of the land: vide Tirupathi Goundan v. Shamanna Goundan : AIR1925Mad477 , and on letters patent appeal a Bench of this Court held that what was granted was a jagir: Ramaswami Kavundan v. Tirupathi Goundan : AIR1926Mad1167 . In considering the merits of this case we shut out of consideration ,the decision in that case as it was between different parties and on different evidence. In Jiejamba Rai v. Secretary of State [1913] 23 M.L.J. 637, it was held that the recital:

Total of 60 Velies of land including wet and dry lands, water, trees, stones, Nidhi, Nikshepa, Sidha, Sadhya (whatever is and may be brought into existence) present and future, patti, all baub and all Kajna with all samudayams, with water poured from the hand. Boundaries to be fixed and the land made dumala,

amounted to a distinct grant of land revenue. In Ex. A the last but one sentence is as follows

Excepting the aforeasid six cesses including manga tax relating to cash income the income relating to all of other cesses shall belong to you alone.

17. That shows that all cesses excepting six cesses were granted to Mahomed Moosa. Apart from that, the tenor of the document and the recitals therein do not show that it was the intention of the grantor to grant the land to Mahomed Moosa. Reliance is placed by Mr. Sampath Ayyangar for the respondents upon the recital 'including poramboke, zamabandi maniams and inams as also sundry lease items in respect of honey, pepper etc,' as showing that the Government wanted to make the grantee the owner of poramboke and other land. He contended that what was granted was the villages, that there was nothing to suggest any distinction between the land revenue and a grant of the soil and that there was nothing which prevented the State from making the larger grant. He pleaded that it was not in point that what was originally given was a pension and that what had to be looked was the actual grant. He also urges that there is no evidence that there were any occupancy tenants at the time of the grant. It is unnecessary to enquire whether there were or were not occupancy tenants at the time. The careful way in which the amount of the beriz was calculated so as to make it equivalent to 40 pagodas per mensem shows what the Government wanted to grant was land revenue which would be equal to the portion of the pension which was being commuted. We cannot treat the persistent references to the beriz as mere description as the respondents' vakil invites us to do. If the intention was to grant land one would naturally expect the Collector to speak of the income of the property and not of the beriz. No doubt in granting village the Government 'would take into account what the Government would lose by way of beriz, but when it wants to benefit a public servant by granting land it would take into consideration what he would derive from the land and not what the Government would lose. Respondents point to the words 'transfer of the lands' in Ex. 3 as supporting their case. We regard them as a loose and inexact expression. Respondents' vakil also relies strongly on Ex. 8, a letter dated 10th December 1927, from the Secretary of the Board of Revenue to the Collector of Salem stating that provided the annual income of the cultivated land in the village selected is not greater than that of the villages given up, the Government would not object to the exchange and that if the waste is greater in the former village, the excess shall be liable to tax on being brought under cultivation. We cannot see how this helps this case. The waste not yielding any revenue was to be enjoyed by the grantee. In Jiejamba Rai v. Secy. of State [1913] 23 M.L.J. 687 Benson and Sundara Ayyar, JJ. held that a distinct enumeration of Government assessment and cesses was sufficient to make the grant one of land revenue. Though the grant included dry lands, water trees, Nidhi, Nikshapam etc., yet as there was a distinct grant of land revenue and cesses the learned Judges held that there was a grant of land revenue and they observed that Section 4 does not require that the grant should be of land revenue alone in order to shut out the jurisdiction of the civil Court.

18. In Ex. A there is no mention of any of the so-called Ashtabhogams but poramboke zamabandi maniams, etc. are included. That would only show that the villages as such were placed under the control of or were handed over to Mahomed Moosa for the collection of revenue and of such income as he might derive from poramboke, forests etc. If the intention was to grant land that intention could have been very easily expressed by clothing the grant with apt words.

19. In Balwant Ramachandra v. Secy. of State [1908] 32 Bom. 432 Batchelor, J. observed at p. 438:

The 'village' is given to the grantee, no limits or boundaries are stated; and as we have said, waste lands are expressly included. The only rights excluded are apparently those of inamdars, hakdars and village officers, and these are expressed to be excluded. The statement of average revenue following the grant should, we think, be read as mere description, and cannot be taken to limit the universality of the grant to lands then actually assessed. What the Government granted was, we think, the revenue of the village considered as a unit of assessment; and if in the course of time, the grantee was able to bring under cultivation land which had previously been uncultivated or even un-assessed, it was open to him under the grant to do so and to profit by the new cultivation.

Mr. Sampath Aiyangar for the respondents strongly relies upon Mt. Sakina Bai v. Kaniz Fatima Begam A.I.R. 1917 P.C. 94, which is also reported in 22 G.W. N. 577. In that case the terms of the sanad were:

Under an order, dated 10th April 1817, passed by His Excellency the Most Honourable the Governor-General, 'taluka' Bidhiapara, 'amla' of the said pargana, comprising 111 villages, 'tappa' 'chak' and 'patti Kasht', original and appended, purchased by the sarkar, together with all the lands, cultivated and uncultivated, and 'Jalkar' and 'bankar' (water and forest uncultivated) has, in lieu of Rs. 12,000 cut of Rs. 16,000, been granted to Karim Khan for his life, as revenue free 'jaghir' from Kharif 1286 fasli, by way of maintenance. After Karim Khan, the said 'ilaka' will continue to stand in the names of his children and 'ahfad' (grandchildren) as a permanent zamindari assessed to a light amount of 'jama'. They must regard the said Khan as a permanent and absolute 'jagirdar' of the said 'ilaka' and let him enjoy the usufructs of the said 'ilaka' and the zamindari rights.

20. The Privy Council lay stress upon the use of the word 'usufruct' in coming to the conclusion that land was granted and not merely land revenue. As is clear from the following passage:

According to the appellant's contention he is to have only zamindari rights in the sense of a right to collect the revenue, whereas the word usufruct appears to point to an actual occupation and use of the soil, subject, of course, to the-rights-of third parties. The word jagir primarily points to occupancy, though it may be occupancy of an office, such as that of the Collector of Revenue. Where, however, a jagir held for life only is, as in this sanad, used in contradistinction to an ilaka held as a permanent zamindari, it is an almost necessary inference that the occupancy referred to an occupancy of land.

21. It is unnecessary to consider Amna Bibi v. Najm-Un-Nissa [1909] 31 All. 382 and Lachimi Narain v. Makund Singh [1904] 26 All. 617, as the terms of the grant in these cases are different from the terms of the sanad under consideration. In Secy. of State v. Laxhmibai A.I.R. 1923 P.C. 6, the grantee was in pre vious occupation and the Privy Council held that the grant was of land.

22. It is asked why, if land revenue alone was granted, jodi was charged and contended that the imposition of jodi implies that the grantee must have had a charge on the land itself. The short answer to this argument would seem to be that by imposing jodi the Government preserved its reversionary right.

23. It is contended for the respondents that, when villages are granted to a person, it is for the Government to show what limitations are imposed upon the extent of the right granted, or upon the extent or user to which the land is to be put. If it is conceded that land was granted for enjoyment, it might be contended with some show of reason that any person who wants to limit the extent of the right to it has to prove the limitation. When the question is whether land was granted or not, we do not think that it is incumbent on the part of the Government to prove that the grant was subject to limitations. In this view the case in Balwant Ramchandra v. Secy. of State [1908] 32 Bom. 432 does not help the respondent with regard to this contention. In Vaidyanatha Ayyar v. Yogambal Ammal A.I.R. 1927 Mad. 140, the dispute was between the members of a family entitled to un-enfranehized personal inam lands. The suit was brought for partition and objection was taken to the maintainability of the suit under Section 4, Pensions Act, 23 of 1871. It was held that Section 4 was no bar. Spencer, J. observed at p. 443:

In the suit out of which the present appeal arises there is no question as to the grant of land revenue but only a question whether the plaintiff is entitled to a share in the freehold interest in certain unenfranchised personal inam lands. The jurisdiction of the civil Courts to decide such a point is not ousted by anything in the Pensions Act.

24. Where the grantee or his successors have to maintain a right against the intervention of third persons they may assert their right in a civil Court and in such a suit it cannot be said that there is any question relating to land revenue. The mere fact that the inam is an enfranchised inam is not sufficient to at tract the provisions of Section 4, Pensions Act. Ramesam, J., observed at p. 444:

One would think that the proper construction of the section would confine its operation to a grant of land revenue only as opposed to a grant of land.

25. Both the learned Judges found that land was granted in inam and not land revenue. In Rama v. Subba [1889] 12 Mad. 98, it was held that as the original grant was not of the freehold or full ownership in the soil, the suit was barred by Section 4, Pensions Act, At p. 103 the learned Judges observed:

When the land revenue is the real subject of the grant and entire villages are granted in order that the grantee may receive the land revenue due thereon to Government and appropriate it to his own use, subject to the terms of the grant, it is clear that no proprietary interest can pass in lands already occupied and in which the kudivaram right is vested in others, for the Government is not competent to grant what does not belong to it and the terms of the grant must be construed with reference to what was intended to be granted. Such being the case, the interest that passes in waste land or land relinquished by the occupant for the time being is such as would enable the grantee to realize the revenue due to Government' which was the subject of the grant, unless the terms of the grant show that a larger interest therein was vested in Government and that interest was intended to be passed. These decisions show that in order that a grant of villages may not fall under the Pensions Act, it must be a grant of the freehold therein or full ownership in the soil, qualified in no way by any reversion suggested by the terms of the grant, in regard to future succession or transmission.

26. The later cases show a departure from the proposition contained in the last sentence extracted above. According to the later view, if land alone is granted, Section 4, Pensions Act, would not be applicable to such grant, but if land revenue is granted, or if land revenue is distinctly granted along with land, the provisions of Section 4 [would apply to such a grant. In Secy. of State v. Subbarayudu [1912] 36 Mad. 559, it was held explaining the decision in Jiejamba Rai v. Secy. of State [1913] 23 M.L.J. 637 that, where the Court is able to hold that there is a distinct grant of the land revenue itself; a suit relating to it is not within the cognizance of the civil Court except, with the sanction of the Collector. After a careful and anxious consideration of the recitals in Ex. A and the circumstances attendant upon the grant to Mahomed Moosa in 1821, we come to the conclusion that what was granted to him was only land revenue and not land and, therefore, the provisions of Section 4, Pensions Act, are applicable to this case and in the absence of a certificate from the Collector the Subordinate Judge's Court had no jurisdiction to entertain the suit.

27. In view of our finding on the first contention it is not necessary to deal at length with the remaining contentions on behalf of the appellant. It is next contended that the Government have an undoubted and unqualified right to resume unenfranchised personal inams and,, therefore the resumption in this case cannot be questioned in a civil Court, and reliance is placed upon Rama v. Subba: [1889] 12 Mad. 98. Madras Regn: 4 of 1831 denied jurisdiction to civil Court over inams. There was an inam settlement and a. number of inams were enfranchised. Madras Act 4 of 1862 was passed, and by Section 1 inams which had been or would be enfranchised were exempted from the operation of Regn. 4 of 1831 and of Acts 31 of 1836 and 23 of 1838 of the Madras; Code. Section 1, was repealed by Act 2 of. 1901. At the time when Rama v. Subba: [1889] 12 Mad. 98 was decided Section 1 was in force. The learned Judges who decided that, case: came to the conclusion that inams not enfranchised were outside the jurisdiction of civil Courts, and only those in which freehold was given or full ownership in the soil was conveyed were subject to 'the jurisdiction of civil Courts. The Pensions Act was passed in ,1871. Section 7 (1) exempted enfranchised inams from its operation but restricted its scope only to pensions, grants of money and grants of land revenue. This does not mean that the Government have an undoubted right to resume unenfranchised personal, inams whatever may be the object and extent of the grant. In this' case, the grant was made for three lives, and it is difficult to see how the Government could resume it for the reason that the jodi or assessment on the land was not paid. We cannot import into the grant so onerous a term. The payment of jodi, no doubt, was mentioned in the sanad, but it was not a condition upon which the grant was made. Gunnaiyan v. Kamakchi, Ayyar [1903] 26 Mad. 339, does not help the appellant as the observation of Bhasyam Ayyangar, J., that unenfranchised inams were not within the cognizance of civil Courts would not help him in his contention that the Government could resume without proper grounds a pension granted for life or lives. In Lachmi Narain v. Makund Singh [1904] 26 All. 617 there was no finding that the grant was of land revenue. In Ganpat Rao v. Anant Rao [1910] 32 All. 148 the finding was that it was a grant of land.

28. The learned Government Pleader relies upon Board's Standing Order 57, Clause (3) as showing the power of the Government to resume personal inams at pleasure. Clause (1) is:

If the inam has been confirmed for the life of the holder or for two lives, the Collector may fully assess the inam on the death of the individual or individuals for whose life or lives the inam was confirmed.

29. Clause (3) is as follows:

When arrears are due on unenfranchised inams held for subsistence, they, may be fully assessed and incorporated with the Ayan lands after due notice and then sold for the arrears due, special cases being reported for the orders of the Board of Revenue.

30. When the Government grants a pension to an individual, or grants land revenue charged on a village or on land, for past services it is difficult to see how it could be resumed for the simple reason that the grantee did not pay the assessment or jodi fixed for land which is placed in his possession and out of the land revenue of which he has to pay himself the pension. It is unnecessary in this view to notice the case in Sundaramurthi Mudali v. Vallinayaki 1 M.H.C. 465. We find against the appellant on this point.

31. The next contention is that this suit is barred by Article 14, Lim. Act, which is in these terms:

To set aside any act or order of an officer of Government in his official capacity, not here in otherwise expressly provided for.

32. The period limited is one year from the date of the act or order. The suit as framed is not for setting aside any order of any public servant. The first prayer is for a declaration that only a certain amount of jodi is payable to Government, that the jagir is a joint estate etc. and the 2nd prayer is for possession of the two jagir villages Vellakuttai and Gollankuttai and the other prayers are incidental to the main prayer for possession. Where it is not necessary to have an order set aside in order to obtain relief, Article 14 has no application. Reliance is placed upon a recent decision of this Court reported in Bala Tripura Sundaramma v. Secy. of State : AIR1928Mad282 . In that case the inam was a personal service inam. The service was discontinued and the inam was resumed. It was held that Article 14 applies to the case and if it did not apply Article 120 applied. The facts of that case are distinguishable from those of the present. It was necessary in order to obtain relief, to set aside the order dispensing with the services of the inamdar,; for as the services were discontinued or ceased to be performed by the inamdar the Government under the terms of the grant dispensed with his services and resumed the inam. Without setting aside the order dispensing with his services no relief could be obtained in that case and, therefore, the suit should have been brought within one year under Article 14, Lim. Act: but where a person is dispossessed of immovable property by a public servant it is not the order of the public servant that has to be set aside, but the right of the party to possession that has to be deter mined; and the party dispossessed is entitled to bring a suit within 12 years from the date of dispossession; in other words Article 14 has no application as no order need be set aside in order to obtain relief. This is the view held in the Secretary of State v. Gulam Mahaboob Khan [1919] 42 Mad 673. In that case an inam granted by the Nawab of the Carnatic in 1775 for the upkeep of a mosque, the performance of service and ceremonies therein and the; feeding of travellers and the poor was confirmed by the British Government 'permanently so long as the service was performed. Owing to persistent misappropriation of the income by the grantees' successors and alienations by some of them of two of the villages included in the inam the Government resumed the inam in 1903 and credited the assessment to its general revenues. It appeared, however, that the mosque was maintained in good repair and that the services and ceremonies were regularly performed there though on a smaller scale. It was held that the resumption being a nullity the suit for possession was not barred by limitation as Article 144 and not Article 14, Lim. Act, applied to the case. Whatever may be the form of the prayer the object of the suit is to recover possession of the villages from the Government. The order of resumption must be treated as nullity as the contingency on which alone the Government is entitled to make the resumption did not arise. If the plaintiff did not seek to recover possession of the villages from the Government but only wanted the order of the Collector to be set aside and obtain consequential relief as in the ease of Subbanna v. Secretary of State [1915] M.W.N. 915 the suit would come within Article 14. The proper article applicable to a case of this nature is Article 144. If the order complained of is a nullity or ultra vires it is well settled that the order need not be set aside and therefore Article 14 has no application. Peary Lal v. Secretary of State : AIR1924Cal913 and Balkishen Das v. Simpson [1898] 25 Cal. 833. Where the relief claimed is one of possession, the order of an officer need not be set aside in which case also Article 14 has no application, for where possession is sought for it is not the order that stands in the way but the possession of the party who wrongfully dispossesses the plaintiff. It is unncessary to consider in this case whether the order of the Government is ultra vires or not, for the relief claimed is one of possession and the act complained of is the dispossession of the plaintiff by the action of the defendant's servants.

33. It is urged for the respondents that the point of limitation was not specifically taken in the grounds of appeal. But as the point is one of importance we have allowed the Government Pleader to raise it. In Dhakeshwar Prasad Narain Singh v. Gulab Kuar A.I.R. 1926 P.C. 60, Mr. Ameer Ali in delivering the judgment of their Lordships of the Privy Council observed at p. 745 (of 5 Pat.)

With regard to the objection put forward by counsel for the respondents, that the plaintiffs suit is barred under Article 14, Schedule 1, Lim. Act, their Lordships desire to observe that this suit is not brought for the purpose of setting aside any order of the revenue Court; it is simply an action in ejectment, its main purpose being to recover possession of certain lands allotted to the plaintiff.

34. The case in Haro Mandal v. Dhiranath Das : AIR1925Pat784 is similar to the one in Dhakeshwar Prasad Narain Singh v. Gulab Kuar A.I.R. 1926 P.C. 60. In Shivaji Yesji Chawan v. Collector of Ratnagiri [1887] 11 Bom. 429, West J. in delivering the judgment of the Bench observed:

Every dispossession by a person in authority is effected by means of an order; and if the reasonsing of the District Judge were faultless, there could virtually be no suit for dispossession by a public functionary-only a suit to set aside his order or his act, subject to the very short term of limitation prescribed for such cases. In the absence of cases directly deciding the point, we are of opinion that Article 12' and 14 of Schedule 2 to the Lim. Act refer to order and proceedings of a functionary to which by law is given a particular effect in favour of one person or against another, subject, in the regular course, to a further judicial proceedings-having for its object to quash them or set them aside.

35. See also Wasif Ali v. Saradindu. Narain : AIR1925Cal953 . The case in Raghunath Prasad v. Kaniz Rasul [1902] 24 All. 467 is distinguishable on facts. There the property was sold in execution of a decree by the Collector and the sale was afterwards set aside. The auction purchaser could not sue for possession of the property without getting rid of the order of the Collector setting aside the sale. Where the Collector sells property in execution of a decree he acts in the same way as a civil Court does. It is difficult to see how the purchaser in a Court auction could sue for possession of the property after the Court has set aside the sale. He must first get the order vacated before he could ask for possession of the property. There is no such order here and the suit being one for possession, Article 14 has no application to the case. It is not suggested that Article 120 applies to the case. To a case like this the proper article applicable is either Article 142 or Article 144. We find this point against the appellant. In the result the appeal is allowed with costs. As the appellant succeeds in the appeal it is unnecessary to consider the memorandum of objections which is dismissed without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //