1. This is an application for leave to appeal to His Majesty in Council against the judgment and decree of this Court in Appeal No. 311 of 1923. We are under the disadvantage of not being the Judges who disposed of the case. The petition happens to be posted before us as the learned Judges who disposed of the appeal have now ceased to be Judges of this Court. On this ground we have had a fuller argument than usual on the facts of the case, but this was only for the purpose of making up our minds as to whether there is a substantial question of law The value of the subject-matter of the suit in the Court of first instance is Rs. 12,000 and the value of the subject-matter in the appeal to His Majesty in Council would also be the same amount unless we can come to the conclusion that there is no substantial question of law in respect of a portion of the appeal. As the judgment of this Court is a confirming judgment, the main point for our decision is whether there is a substantial question of law within the meaning of Section 110, Civil P.C., and for this purpose I proceed to state the main facts and the matter in controversy between the parties.
2. The suit was filed by the Raja of Vizianagaram to resume the village of Annamarajuvalasa in the zamindari of Chemudu from the defendants who were Gadabas. The allegation of the plaintiff was that the village was granted some time after the permanent settlement by the then zamindar of Chemudu to the predecessors-in-title of defendants 1 to 56 on condition of rendering service as palanquin bearers, and the profits of the village were to be enjoyed in lieu of the wages payable in respect of such service. If the allegations of the plaintiff can be made out, a grant under such conditions would be resumable. The Subordinate Judge of Vizagapatam who tried the suit found that there was a grant for service on terms which make the grant resumable, but he held that it was not the whole village but only the revenue that was the subject of the grant and therefore resumable. But apart from this he dismissed the suit on the ground that the plaintiff has no right to resume. Some facts have got to be stated for elucidating this point. By Ex. 14, dated 12th March 1889, the then zamindar of Chemudu sold his Chemudu zamindari,
bearing the boundaries, extents and other particulars detailed in the schedule annexed hereto,
the suit village not being in the schedule (which can only mean all that he then possessed in the zamindari) to the minor Zamindar of Kurupam, another permanently settled estate in the same district. At the time of the sale the Zamindar of Chemudu was not the owner of the suit village, he having granted it to the defendants' predecessors for service. All that he had in respect of the suit village was the right of resumption. But it is not suggested that any order of resumption was passed prior to the sale deed. In 1892 the Zamindar of Chemudu sold to K. Suryanarayana Patnaik and another by Ex. E the entire remaining village of Annamrajuvalasa assigned to 13 palanquin bearers for performance of service, the same being determinable at will and pleasure, and on the same day an order was addressed to the predecessors-in-title of the defendants directing them to render service to the vendees: Ex. E 1. The absence of an order like Ex. E, at the time of Ex. 14, is significant. Later on, the Raja of Vizianagaram purchased it in Court auction in execution of a decree against the said Suryanarayana Patnaik who became the sole owner by sale certificate and further deeds of transfer ending with the sale deed Ex. W dated 8th September 1899. On 30th July 1907 the Raja called upon the defendants to render service to him properly and on 19th December 1907 notice to quit was given. Hence the suit. The Subordinate Judge and on appeal the learned Judges of the High Court held on a construction of Ex. 14 that the whole zamindari was sold away to the Raja of Kurupam and therefore there was nothing for the Raja of Yizianagaram to purchase: but it seems to us that there is at least a fair point for the plaintiff to argue before His Majesty in Council that the Zamindar of Chemudu could not have sold by Ex. 14 what he did not possess at that time and that when he sold the whole of Chemudu Zamindari in 1889 he only sold such part of the zamindari as he possessed and to which he had title to convey. The sale of a mere zamindari may not cover the right to resume and to recover possession of a village granted to third persons, not in the possession of the vendor and as to which no order of resumption had been passed.
3. It does not appear that the Zamindar of Kurupam ever claimed any rights over the village. It seems to us therefore, that the plaintiff has a fairly arguable question of law to urge before His Majesty in Council that Ex. 14 and the subsequent transactions have been misconstrued by the learned Judges of the High Court. In connexion with the same matter the Raja's advocate seems to have argued in appeal that the attornment to Suryanarayana Patnaik, the vendee of 1892, and the Raja of Vizianagaram amounts to recognition of the Raja as the superior landlord of the village. In dealing with this point the learned Judges say that this argument amounted to trying to make out title by adverse possession and estoppel by reason of the attornment, and they disallow the point on the ground that it was not raised in the plaint. The petitioners now complain before us that it is not that they want to raise any case of title by adverse possession but only they want to refer to the non-enjoyment by the Zamindar of Kurupam and the later recognition of Suryanarayana Patnaik and the Raja of Vizianagaram as superior landlords as merely throwing light on the sale deed of 1889 and not as creating separate title and that their contention has been misunderstood by the learned Judges. It seems to us that there is something to be said for the petitioners in this matter also.
4. Then there is another point. Some of the defendants have compromised the suit with the Raja and petitions of compromise were filed in the first Court. On the ground that the compromise was not beneficial to the minors the Subordinate Judge did not grant sanction for the compromise. The learned Judges of the High Court on appeal also say that the defendants being tenants under the Estates Land Act, any agreement by which the rent is enhanced would not be lawful under Section 187, Estates Land Act, and therefore the compromise is illegal; but the petitioners urge that the Estates Land Act does not cover cases of land held on service tenure and there is at least 'reasonable doubt as to whether the Estates Land Act covers this case. When there is a doubt as to the applicability of the Estates Land Act and a compromise for the purpose of settling that doubt for ever, the provisions of the Act cannot be applied for the purpose of showing that the terms of the compromise are illegal. If the applicability of the Act is admitted by both the parties a compromise in breach of the provisions of the Act may be illegal, but where the applicability itself is doubtful a compromise to resolve that doubt, being one falling within the well known principle that compromises of disputed or doubtful claims will not be closely scrutinized by Courts of law, would be valid. It seems to us that this question also is fairly arguable by the petitioners. Undoubtedly, the two points above indicated are not questions of fact. Having regard to the rulings of the Privy Council in Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh and Guran Ditta v. Ram Ditta AIR 1928 PC 17, we think these are substantial questions of law in the case within the meaning of 8. 110, Civil P.C. The orders of the Judicial Committee require us to state the questions of law in the case of a confirming judgment. They are:
(1) Whether having regard to the construction of the document, Ex. 14, the attornment after Ex. E and the subsequent enjoyment, the title to the suit village is not in the Raja of Vizianagaram as opposed to the Raja of Kurupam; and (2) whether the compromises filed in the suit are illegal and are not valid.
5. Certificate will issue that the case is a proper one for appeal to His Majesty in Council under Section 110, Civil P. C, stating the questions.
Madhavan Nair, J.
6. I agree. Of the two question formulated by my learned brother for submission to the Privy Council I have no doubt that the second question is a substantial question of law. As regards the first it has been argued that the question involved is merely the construction of Ex. 14 in the light of the circumstances of the case and that no 'substantial question of law' arises in the appeal; but it seems to me that in construing the document a subsidiary question of some importance also arises, namely, whether, having regard to the fact the village in question has not been resumed by the Zamindar of Chemudu, can it be said that he has the power to sell it? and there is the further fact that the learned Judges who heard the appeal, if I may say so respectfully have not properly appreciated, as pointed out by my learned brother, one aspect of the appellant's argument which, I think, has a direct bearing on the question. In these circumstances it is difficult to say that the question of law raised in point No. 1 is merely the construction of title deed, Ex. 14, and nothing more, and is therefore not a substantial question of law. No doubt the existence of a point of law by itself does not give a right of appeal to the Privy Council under Section 110, Civil P. C, as pointed out in Banarasi Prasad v. Kashi Krishna Narain (1901) 23 All 227.
7. There must be a substantial question of law. In Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh the Privy Council has said that these words do not mean a question of general importance but a substantial question of law as between the parties in the case involved. In Guran Ditta v. Ram Ditta AIR 1928 PC 17 their Lordships held that the question whether a fixed deposit in a bank in the name of two persons payable to either or survivor was in fact payable to the survivor or belonged to the estate of the person who originally supplied the money was a substantial question of law. In Mathura Kurmi v. Jagadeo Singh : AIR1928All61 , followed in Gokul Chand v. Sanwal Das AIR1924Lah473, it was pointed out by the learned Judges that the question contemplated by this section (Section 110) must be one in respect of which there may be a difference of opinion. In the light of these decisions I am satisfied that question 1 also raises a substantial question of law between the parties.