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Adivikolanu Chakrapani Rao and ors. Vs. Sri Rajah Venkatadri Appa Rao Bahadur Zamindar - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported inAIR1937Mad303; 173Ind.Cas.307
AppellantAdivikolanu Chakrapani Rao and ors.
RespondentSri Rajah Venkatadri Appa Rao Bahadur Zamindar
Cases ReferredBalakrishna v. Secretary of State
Excerpt:
- - 'to establish' literally means 'to make good'.tyabji, j......the plaintiff he was entitled to resume the lands. the main question in this case is whether the suit lands were service inam lands, and when they were granted and for what purpose. the learned district munsif who tried the suit was of opinion that they were granted in or about 1852 by the government who were then managing the zarnindari, and that they came into existence in the place of 'lavajamas' and they were not granted for any private and personal services to be rendered by the kamaras to the zamindar. but the learned subordinate judge took a different view. he held that they were granted for doing personal services. in para. 5 of this judgment he sums up his conclusions thus:it is, i think, therefore beyond reasonable doubt that defendants held the suit lands on account of the.....
Judgment:

Venkataramana Rao, J.

1. This second appeal raises the question of the right of the plaintiff to resume certain service inam lands in the possession of the defendants in the village of Adivikolanu in the Baharzalli Pargana of the Nidadavolu estate which originally formed part of the ancient Nuzvid Zamindari. The ground of resumption was that in or about 1852 the plaintiff's predecessor-in-title granted these lands to the defendants' predecessor-in-title who were karnams of the village and who were doing personal and private services to the proprietors of the estate. Money salaries were provided for the karnams in the place of emoluments annexed to their office by putting into operation the provisions of Act 2 of 1894, and as the services have been dispensed with by the plaintiff he was entitled to resume the lands. The main question in this case is whether the suit lands were service inam lands, and when they were granted and for what purpose. The learned District Munsif who tried the suit was of opinion that they were granted in or about 1852 by the Government who were then managing the zarnindari, and that they came into existence in the place of 'lavajamas' and they were not granted for any private and personal services to be rendered by the kamaras to the zamindar. But the learned Subordinate Judge took a different view. He held that they were granted for doing personal services. In para. 5 of this judgment he sums up his conclusions thus:

It is, I think, therefore beyond reasonable doubt that defendants held the suit lands on account of the service which their family was doing to the zamindar, and now that they are not doing any service to the zamindar as defendant 3 himself admits, they are, I think, liable to restore what had been granted to them as remuneration lor the service.

2. This is a finding of fact which would not warrant my interference in second appeal. Mr. Suryanarayana contends that the learned Subordinate Judge must be deemed to have proceeded upon an erroneous view that because the karnams were doing private services to the zamindar these lands must be deemed to have been granted to them. No doubt it was held in Secy. of State v. Chandra Mouleswara Prasada : AIR1929Mad676 that the fact that the karnam rendered some private services to the zamindar would not make him a servant of the zamindar, and from that if; cannot be inferred that any land granted by the zamindar must be deemed to be for private services. But it does not follow from that decision that the zamindar cannot grant lands to a karnam for doing private work. If for a long period they were rendering private service to the zamindar, from this and other circumstances it is open to the Court to infer that certain lands were granted by the zamindar for doing such service. The learned Subordinate Judge draws from the evidence in the case that the suit lands must have been granted by the zamindar to the defendants as remuneration for private services. If this finding is accepted the zamindar is certainly entitled to dispense with their services and resume the lands. I am not prepared to say that in arriving at this finding he committed any error which would justify interference in second appeal. In this view it is unnecessary to canvass the correctness or otherwise of the dictum of Venkatasubba Rao, J. in Thiruvenkatacharlu v. Shaik Altoo Sahib AIR 1926 Mad 511 regarding the presumption in case of service inam lands granted for private services by the zamindar.

3. Even assuming that these lands were granted in lieu of 'lavajamas' they would be service inam lands granted by the proprietor within the meaning of Section 17, Clause 2, Madras Act 2 of 1894. On the finding that they were granted in lieu of remuneration for services, when money salaries were substituted for the emoluments, it is certainly open to a zamindar to resume the lands by virtue of the said provisions. The decision of the Privy Council in Chandra Mouleswara Prasada Bahadur v. Secy. of State is decisive on this matter. At p. 125 their Lordships observe:

The Legislature did not, however, intend to deprive a private proprietor of his right to recover the land, if it was granted by him or his predecessor in interest. This is made clear by a proviso to that section. . . . .

4. Lower down they further observe:

The main question raised on this appeal is whether the lands were granted to the karnams by the appellant's ancestor. This was the ground upon which he based his claim; and there can be no doubt that, if that ground be established, he would be entitled under the proviso, referred to above, to recover the property.

5. It is doubtful how far the observation of Ramesam, J. in Rajah of Vizianagaram v. Ramaswami, : AIR1927Mad448 that once a grant is shown to be for public service, the presumption is that it is irresumable, is correct. Radha Prashad Singh v. Budhu Parshad (1895) 22 Cal 938 is again relied on for this purpose. In that case the learned Judges had not to deal with any provision corresponding to Section 17, Clause 2, Act 2 of 1894. This decision cannot be an authority for cases covered by the said Act. Whether the lands were granted by the State or by the zamindar for doing public services, the theory is that the service inams were granted as wages for the performance of services. This is clear from the preamble to the Madras Regulation 6 of 1831 which begins thus:

Whereas certain emoluments derived from lands, from fees in money or grain, and from other sources, have been annexed by the State to various hereditary village and other offices, in the Revenue and Police Departments, as wages for the performance of public services . . . . .

6. It follows that once those emoluments are replaced by money salaries, the lands are liable to be resumed, if granted by the State, by the State, if granted by the zamindar, by the zamindar. The next question argued by Mr. Suryanarayana is that the suits are barred by res judicata by reason of the prior judgments between the parties, viz.: (1) the decision in S.A. No. 425 of 1918 and the connected batch of cases. These suits were filed as summary suits before the Sub-Collector of Narasapur Under Section 77, Madras Estates Land Act to recover arrears for Faslis 1320, 1321 and 1322. But the suits were dismissed Under Section 77 on the ground that they could not be brought Under Section 77, being service inam lands; the moment the services are dispensed with, they do not become raiyati lands until the defendants were admitted as raiyats, and no relationship of landlord and tenant was established by mere resumption; and therefore Section 77 would not apply to the case and the suits for recovery of rent would be barred by virtue of Section 45 of the Act. (2) The other judgment is that in S.A. No. 1828 of 1927. This related to a suit for enforcement of acceptance of pattas and it was dismissed following the above judgment in S.A. No. 425- of 1918 on the ground that no relationship of landlord and tenant was established between the parties. But the present suits are brought for the express purpose of having the relative rights between the parties adjudged. The suit is for a declaration that the plaintiff is entitled to resume the suit lands, that is, if the lands are granted as service inams, they are entitled to recover physical possession or if melwaram alone, to recover melwaram, that is, to have the full assessment imposed. The suit is therefore virtually one of title. It is only after the title is declared and the plaintiff's right of resumption on one or other of the bases stated above is established, and the plaintiff's claim for assessment is declared the relationship of landlord and tenant would be constituted. Therefore I do not think any question of res judicata arises nor does Section 189, Estates Land Act, bar the suit. Further Section 189 can only be a bar on a matter which is in the exclusive cognizance of the revenue Court. The question of title is never within the exclusive cognizance of the revenue Court.

7. The case in Raja Rajeswara Sethupathi v. Muthudayan Pillai AIR 1928 Mad 1122 relied on by Mr. Suryanarayana is distinguishable for as pointed out by Phillips, J. that Under Section 57 of the Act it was the bounden duty of the Court to find on a question of title; whereas it has been pointed out in a number of cases in this High Court (vide Sobhanadri Appa Rao v. D. Venkataraju AIR 1920 Mad 558, Siyyadi Garu v. Visweswara Nissanka Bahadur Garu AIR 1916 Mad 826 and Subbanna Achariar v. Gopalakrishna Achariar AIR 1917 Mad 195) that a question of title is for the civil Court and it is always open to a landlord to bring a suit that he is entitled to melwaram or agitate a similar question in a civil Court. Therefore I overrule the plea of res judicata raised in this case.

8. The next contention raised is that the civil Court has no jurisdiction to declare or fix the assessment due on the lands. I do not see any objection to this course either. There is no provision in the Estates Land Act to have the rent fixed except Under Sections 25, 30 and 45 of the Act. Sections 25 and 30 obviously cannot be applied to this case; and Section 45 also would not apply. The right to kudivaram was given up by the plaintiff and the claim was limited only to a declaration that he is entitled to resume the melwaram and to impose the full assessment. The claim for a declaration that the plaintiff is entitled to impose full assessment would not be covered by Section 45 of the Act. The relief is one which the civil Court alone can grant, and in so doing it can also declare what the full assessment is. Such a declaration was granted in two cases which came up before this High Court in Chidambara Gurukkal v. Sundaram Pillai AIR 1924 Mad 833 and Siyyadi Garu v. Visweswara Nissanka Bahadur Garu AIR 1916 Mad 826. Chidambara Gurukkal v. Sundaram Pillai AIR 1924 Mad 833 was a case almost similar to the present one. A suit was filed for a declaration that certain service inam lands were resumable and for possession thereof. The learned Judges negatived the right to ejectment but gave the plaintiff a declaration that he was entitled to the full assessment on the lands, and also declared what the full assessment was, and gave a decree therefor. In Siyyadi Garu v. Visweswara Nissanka Bahadur Garu AIR 1916 Mad 826 a similar relief was granted. I am bound by the said decisions and following them I overrule the contention. Mr. Suryanarayana relied very strongly on the decision in Narayana Patrudu v. Manager of Peda Marangi Estate AIR 1928 Mad 170. In that case it has been held that it would be open Under Section 77, Estates Land Act, to determine what the rent is, where no rent has been previously ascertained. But as aforesaid the suit filed by the present plaintiff Under Section 77 was dismissed on an objection taken by the defendants; and it does not he in the mouth of the defendants to say now that the plaintiff must seek relief Under Section 77.

9. The last point urged by Mr. Suryanarayana is the question of limitation. His contention is that the suit was originally brought for the recovery of lands; after the decision of the first Court the plaintiff gave up the relief for the recovery of the land but contented himself with the prayer for a declaration of his right to the full assessment as will appear from the valuation in the memorandum of appeal in the lower appellate Court: vide p. 46 of the pleadings book. According to him therefore the suit having been instituted more than six years after the right to sue accrued, the claim for declaratory relief is barred by limitation. Even assuming that 12 years should be applied his contention is that even then the suit is barred, because the cause of action must be deemed to have accrued to the plaintiff the moment the Act 2 of 1894 was put into force in 1910 or at any rate from 30th June 1911 because in the plaints in the prior suits the causes of action for the recovery of full assessment was given as commencing from 30th June 1911. But it was pointed out in answer that in the prior suit full assessment was claimed only from 1st July 1912: vide para. 10 of the judgment of the learned Subordinate Judge herein. From the pleadings in the prior suit it appears that notices were sent only in December 1911: vide para. 6 of the written statement in the pleadings book in S.A. No. 425 of 1918 and Ex. B in the present suit. If it were a question of recovering actual possession of land Article 144 would certainly apply.

10. I am of opinion that even if it was for recovery of the melwaram right Article 144 would still apply. The melwaram right which consists in this case in the imposition of the full assessment would be an interest in immoveable property within the meaning of that article. The cause of action for resumption would arise only from 1st July 1912, the date on which the plaintiff signified he would resume the lands: vide Exs. A, B and H. Till that date the defendants will be entitled to occupy on the previous terms because it is open to the plaintiff not to put an end to the tenure or to put an end to it from a particular date, and if from a particular date the tenure was intended to be put an end to, it is this date which would give rise to the cause of action. And the prayer in para. 13(1) of the plaint would entitle the plaintiff to get this relief. The fact that he claimed the land would not preclude him from getting the lesser interest of melwaram and the suit having been instituted within 12 years from 1st July 1912 is not barred.

11. But assuming that this is not a correct view and that the suit must be deemed to be one for a bare declaration, the question is whether Article 120 or Article 131 applies. In support of the position that Article 120 will apply Mr. Suryanarayana relies upon Balakrishna v. Secretary of State (1893) 16 Mad 294 which lays down that Article 131 is only applicable to cases where consequential relief is asked for by virtue of the periodically recurring right, but where the suit is only for a bare declaration Article 120 should govern the case. But to my mind this decision is in direct contravention of the plain language of the article. Under that article the suit is for establishing a periodically recurring right and a bare declaration would prima facie be within the meaning of that article. In fact this view was taken in an early decision of the Madras High Court in Ramnad Zamindar v. Doraiswami (1884) 7 Mad 341. In that case the suit was brought for a declaration that the plaintiff therein was entitled to a certain allowance payable out of the revenue of the Ramnad zamindari. Defendant 1 in that case was the minor zamindar of Ramnad and defendant 2 was one Kolanthai Nachiar, the senior widow of the said plaintiff's deceased father, who was disputing the legitimacy of the plaintiff. So far as defendant 1 was concerned the only relief claimed against him was a declaration; and so far as defendant 2 was concerned, there was a claim for arrears. Having regard to the claim against defendant 1 which was a bare declaration their Lordships held that Article 131, Lim. Act, would apply. Their Lordships observe at p. 343 as follows:

The respondent, on 9th October 1879, instituted the suit, in which this appeal arises, against the minor zamindar of Ramnad to establish his right to the allowance, and the claim is resisted on the ground that it is barred by limitation . . . the right which the respondent seeks to establish is a recurring right, and he is entitled by the present Limitation Act to sue within a period of 12 years from the date on which he demanded and was refused the right: Act 15 of 1877, Schedule 2, Clause 181.

12. Ayling, J. noticed this decision in his Order of Reference in Zamorin of Calicut v. Achutha Menon AIR 1914 Mad 377:

The first of these Ramnad Zamindar v. Doraiswami (1884) 7 Mad 341 calls for little remark inasmuch as the decree which was the subject of appeal before the Court was merely one declaring the Ramnad zamindari liable for a certain periodical payment, and not for any consequential relief.

13. In Balakrishna v. Secretary of State (1893) 16 Mad 294 the decision in Ramnad Zamindar v. Doraiswami (1884) 7 Mad 341 was not noticed and, as pointed out by Ayling, J., the decision in Balakrishna v. Secretary of State (1893) 16 Mad 294

appears to involve the somewhat surprising result that a man asking merely for a decree declaring his periodically recurring right must sue within six years under Article 120, whereas, if he asked for relief consequential on the said right, he could claim 12 years under Article 131.

14. It is doubtful if the claim in Balakrishna v. Secretary of State (1893) 16 Mad 294 relates to a periodically recurring right. In Ratnamasari v. Akilandammal (1903) 26 Mad 291 there is an obiter dictum at pp. 313 and 314 by Bhashyam Ayyangar, J.:

Article 131, however, which provides for a period of 12 years in respect of a periodically recurring right, does not relate to a mere declaratory suit;

and the reason given is, that the expression used in that article is not 'for a declaration' but 'to establish'. I am not. able to agree with this view. I do not see why the expression 'establish' would not include a suit for a declaration whether it was intended to convey more or not. 'To establish' literally means 'to make good'. Tyabji, J. in Zamorin of Calicut v. Achutha Menon AIR 1914 Mad 377, was inclined to the opinion that Article 131 would apply to a case of bare declaration, and this also seems to be the view of White, C.J., from the opening sentence of his judgment in the Full Bench case. So far as the view of the other High Courts is concerned Article 131 would apply to a suit for a bare declaration without any consequential relief: vide Muhammad Yasin v. Illahi Baksh (1912) 34 All 545; Sri Sri Baidyanath Jiu v. Har Dutt Dwari : AIR1926Pat205 ; Devendra Narayan Majumdar v. Jhumur Pramanik AIR 1926 Cal 883 and Janardan Trimbak v. Dinkar Hari : AIR1931Bom189 . The observations of their Lordships of the Privy Council in Secretary of State v. Parashram Madhav Rao would seem to support this view though in that case there was a prayer for a consequential relief. I am therefore inclined to follow the view indicated in Ramnad Zamindar v. Doraiswami (1884) 7 Mad 341 in preference to that in Balakrishna v. Secretary of State (1893) 16 Mad 294. If Article 131 is to be applied it cannot be disputed that the suit is not barred as the refusal to pay the full assessment is within 12 years before the suit. In the result the second appeal fails and is dismissed with costs. Leave refused.


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