1. This appeal arises out of the assertion on the part of the zemindar of Kalahasti of. a claim to levy certain meras and russums which the respondent agarharamdars have denied their liability to pay, as being in their view unauthorized exactions.
2. The first argument is that the matter is res judicata between the parties by reason of the decision in a previous suit of 1902.
3. But it is clear that in 1905 when this suit was instituted that decision, according to the then prevailing law, which was settled by the Pull Bench decision in Avanasi Gounden v. Nachammal 1 M.L.T. 25 : 16 M.L.J. 41, being one in which no second appeal lay, could not operate as a bar to a fresh decision on the same point in a subsequent suit between the parties.
4. After the decision in that suit the law was altered by the introduction of the Civil Procedure Code of 1908, in which the Explanation II to Section 11 of that Code provided for the first time that the competence of a Court should be determined without reference to the existence of a right of appeal from its decisions.
5. It was hold by the Privy Council in Colonial Sugar defining Co. v. Irving (1905) A.C. 360 : 92 L.T. 733 : 21 T.L.R. 513, that a right to appeal to a superior Tribunal is a substantive right which belongs to a suitor, and the well-known principle was further affirmed that an Act which takes away a substantive right is not retrospective in effect, except by express enactment or by necessary intendment.
6. The second objection is that the payment of the meras and russums referred to in Exhibit I was part of the consideration for the grant of that part of the landlord's melvaram which went to make up the agraharam. The Sub-ordinate Judge found, as we understand his judgme it, that the grant was subject to those
7. payments, but lie also held that it was a condition of the grant that they were to continue only so long as the purposes for which they were made continued.
8. The case is thus on a similar footing to that decided in Devanai v. raghunatha Bow (3) 18 Ind. Cas. 298: (1913) M.W.N. 886 where it was held that as between a zemindar and his tenants a fee payable for a particular purpose could no longer be enforced when that purpose failed. An attempt has been made to distinguish that case on the ground that these agraharamdars have not shown that they possess occupancy rights and that their position is thus inferior to that of the tenants in the above decision. But there is no presumption or proof that the agraharamdars are liable to be ejected from their holdings, and prima facie they appear to be in a stronger position than ordinary ryots, considering the nature and length of their tenure. Under Regulation XXV of 1802 the zemindar, in the absence of a contract to the contrary, is not entitled to collect more than the fixed quit-rent or jodi in case of pre-Settlement inams. The parties have not raised the question that this grant was subsequent to the Settlement and the earliest document between them is one of the year 1803, which by its terms purports to be subsequent to the original grant.
9. The questions as to which of the charges relate to purposes which have ceased to exist, are questions of fact into which we cannot enter.
10. This second appeal is dismissed with costs.