1. The plaintiff is the appellant in this second appeal. He is the Raja of Vizianagaram and the defendants represent the proprietors of the Mokhasa village of Konda Konguva in the Raja's zamindari. The Rajah, during the suit years, included in the sum he paid to the Government as land cess due on his estate under the Madras Local Boards Act 14 of 1920 a certain sum as being the cess due on the rental value of the suit village and he claims that he is entitled under the proviso to Section 88 of the Act to collect from Mokhasadars what he had paid to the Government. There is no question that the payment of land casa under the Act is a proper burden on this village. The defendants however object to pay it through the landholder. They do not deny the liability to pay but claim to pay direct to the Government. Nevertheless the point now in dispute is somewhat important, too important, I think to be raised in a suit like this, which on the surface is concerned only with the machinery provided by law for the collection of a tax, the liability to pay which is not disputed by any of the parties. The point which these parties wish to be decided is whether the Mokhasa village is held by the Mokhasadars on an under tenure created, continued or recognized by the Rajah. If it is as held then under the proviso to Section 88, the Rajah on paying to the Government the land cess due on the Mokhasa village will recover it from the Mokhasadars. The full text of the proviso is:
Provided that in all oases where a person holds lands with or without a right of occupancy as an intermediate land-holdar on an under tenure created, continued or recognized by a landholder, it shall be lawful for the landholder to recover from the intermediate landholder the whole of the cess paid by the landholder in respect of lands held by the intermediate landholder less one half the cess assessable on the amount of any kattubadi etc., payable by the intermediate landholder to the landholder.
2. The trial Court decided in plaintiff's favour but; the learned Subordinate Judge reversed that decision on an appeal by some of the proprietors holding that the Mokhasa village was not held on an under tenure as described in Section 88 of the Madras Act 14 of 1920. The learned Subordinate Judge considered that the deciding factor in the case was whether the Mokahasa village had, at the time of the permanent settlement in 1803, been included or excluded from the assets of the estate in calculating the total income of the estate on the basis of which the permanent peshkush was fixed. There was evidence in the case which was sufficient to enable a decision to be reached on that point and the learned Subordinate Judge has given his reasons for construing that evidence against the landholder, the present appellant. He found as a fact that the Mokhasa village in suit was excluded at the time of the permanent settlement in making the calculations described above. That was a finding of fact, and since there was evidence to support it, it does not seem to me that it can be made the subject of objection on second appeal. It is argued however that the learned Subordinate Judge wrongly relied on two documents Exs. I. and P. There are recitals in those documents which are relevant to the point in dilute but the argument now is that the documents are of no value and that the learned Subordinate Judge should not have relied on them. About Ex. P the argument comes strangely from the mouth of the appellant, because that was a document which was filed by the appellant himself at the trial. However that may be, I am not convinced that the evidence afforded by these two papers was the only evidence on which the Court based its finding. Another argument is that the finding of the Court is wrong because it failed to draw the proper inference from certain undisputed facts. One of those facts is that the village is liable to a payment to the zamindar of what is called Kattubadi. Kattubadi is defined in Wilson's Glossary as a favourable rent assessed on lands granted for public service. The argument is that where you find lands subject to such payment, the proper inference is that the grant was made by the zamindar and not by the ruling power. But though that might appear eminently reasonable at first sight, it is not an inference which can inevitably be drawn in the case of these ancient grants which originated at a time when the proprietary rights of the ruling power and of the local chieftains were not kept so separate and distinct as the rights of the Government and the rights of the landholder are kept at the present day.
3. Fortunately, this is not a matter into which I am compelled to enter at any great length, because it is the subject of a decision of this Court in Kuppu Reddi Nookaya v. Mondaluka Bheemanna (1923) 10 A.I.R. Mad 454 it became necessary to decide the nature of an inam whether it wag granted by the Rajah of Pittapur or by the Government before the permanent settlement of 1802. At the time of the suit it was found that the land was subject to a small Kattubadi, and the learned Judges (Oldfield and Ramesam JJ.) who decided that case held that the 'alienated lands' which were excluded from the accounts at the time of the permanent settlement comprised an inam grant subject to a favourable quit rent. In the present case also, in the sanad by which the peshkush of this particular estate, namely Vijianagaram, was settled, the class of lands to which the Mokhasa village now in suit belongs was expressly excluded. Reliance was placed by the defendants on this sanad Ex. A and the relevant words are:
This permanent assessment of the land tax on your zamindari is exclusive of the lakhiraj lands and of all other alienated lands paying a small quit rent (which quit rent unchangeable by you, is included in the assets of your zamindari.)
4. The appellant admitted at the trial that this Mokhasa village was a pre-settlement grant, that is to say prior to 1803, but his case was that it was a grant made by the zamindar of that day. The decision of the lower Appellate Court was that it was not included in the assets of the zamindari in taking the account on the basis of which the peshkush was determined. It was regarded that is to say as a grant made by the Government.
5. I do not think there is any proper ground for my interfering with the lower Appellate Court's finding of fact that this Mokhasa village was excluded from the assets of the estate at the time of the permanent settlement. This being the state of the facts, it is no longer possible to hold that the village can be regarded as an under tenure village within the meaning of Section 88, Local Boards Act. This very point came for decision very recently before a Pull Bench of this Court in Rajah of Vizianagaram v. Dindi China Thammanna (1937) 24 A.I.R. Mad 217 In delivering the judgment of the Court, Varadachariar J. says:
The scheme of the Local Boards Act is that when the inam lands have not been included in the assets of the zamindari, the inamdar is himself a landholder holding directly under the Government. But if the assets include the inam lands as well, he has no direct relation with the Government but the Government collects the cess from the landholder and the landholder reimburses himself from the inamdar treating him as an intermediate landholder.
6. I am greatly indebted to the learned Counsel on both sides for the most inter-eating and instructive arguments on the point in issue, but I do not think it is necessary to say anything further on this appeal. This second appeal is dismissed with costs. Leave to appeal is refused.