1. The only point argued in this second appeal is that the plaintiff ought to have applied to the Collector for the determination of the amount payable by the defendants under Section 27(4) of Act. II of 1894 before bringing the suit. The defendants are farmers of the melwaram due to the plaintiff, Under the terms of the lease as evidenced by patta Exhibit Is lessee undertook to pay the karnams. By a recent order, the Government undertook to pay the karnams and the pay of karnam was added to the peishkush of the plaintiff. The plaintiff has brought this suit for the purpose of recovering from the defendants the amount payable, by them towards the karnam's salary. He claims a rateable portion of the amount he is paying to the Government distributed over the several mittahs owned by him and also the amount actually paid by the defenants towards the karnam's salary. The District Munsif gave a decree in favour of the plaintiff for the amount claimed by the plaintiff as rateably distributed by him and the District Judge has affirmed the judgment of the lower Court with a slight modification as regards the amount payable by the defendants towards the karnam's salary.
2. It is contended by Mr. Venkatachariar that the plaintiff's suit is incompetent by reason of his not having applied for the determination of the amount payable by the defendant in respect of the karnam's salary as provided for by Section 27(4). This no doubt, might be a very good defence, if it is open to the defendants to raise it, by : reason of a recent decision of the Pull Bench of this Court in Tiruneelakantem Servai v. Raja of Ramnad A.I.R. 1922 Mad. 268. But unfortunately for the defendant the Subordinate Judge who heard the appeal from the decree of the Distriot Munsif who dismissed the suit on the ground that the suit is barred by reason of Section 33 of Act II of 1894 decided that the suit was not barred by reason of Section 27(4) of the same Act. Mr. Yenkatachariar's contention is that this question was not raised before the District Munsif and was not one of the grounds for decision by the Sub-Court. But in Para. 4, the Subordinate Judge did refer to Section 27 and he came to the conclusion that that section did not stand in the way of the plaintiff coming directly to the Civil Court to obtain the appropriate reliefs and he went on to say:
In my opinion the suit would not be barred so long as the defendant does not question the correctness of the amount levied from him.' Mr. Venkatachariar's contention is that this must be taken as an argument in favour of his opinion that Section 33 is not a bar to the plaintiff's suit. I am unable to accept this contention.
3. The Subordinate Judge dealt with the objection to the maintainability of the suit by reason, of Section 33 of the Act II of 1894 in Para. 3 of his judgment. Then he went on to say in Para. 4 : 'My attention was drawn to Sub-clause (4) of Section 27 under which it will be open to a proprietor who had leased his estate to a tenant on condition that the latter should pay the village establishment, etc.' Evidently the defendants when they found that the objection to the maintainability of the suit could not be sustained by reason of Section 33 of the Act relied upon Section 27(4) of the same Act and the Subordinate Judge had to deal with that question as it was raised by the defendants. The Subordinate Judge having given a decision on that point and the decision not having been appealed against by the defendants, it is not now open to them to raise the same question in this appeal. The contention of the appellants is not sustainable.
4. In the result the second appeal fails and is dismissed with costs. The memorandum of objections is also dismissed with costs.