Chikkanna Chettiar alias V.S. Nanjappa Chettiar vs V.S. Perumal Chettiar and Another

Alfred Henry Lionel Leach, C.J.—This revision petition raises the question whether an appeal lies from the decision of a Subordinate Judge

appointed by the Provincial Government u/s 3(d) of the Land Acquisition Act, 1894, to decide a dispute referred by the Collector u/s 30 of the

Act. That section empowers the Collector to refer to ""the Court"" a dispute as to the apportionment of the amount of compensation settled u/s 11

or as to the persons to whom the compensation is payable. Section 3(d) defines the word ""Court"" as meaning a principal Civil Court of original

jurisdiction, unless the Provincial Government has appointed (as it is empowered to do) a special judicial officer to perform the functions of the

Court. In this case the Government of Madras appointed the Subordinate Judge of Salem to perform the functions of the Court under the Act. The

petitioner was dissatisfied with the decision of the Subordinate Judge and filed an appeal to the District Judge of Salem, but the District Judge

dismissed the appeal on the ground that it was incompetent by reason of the decision of this Court in Krishnamoorthi Aiyar v. The Special Deputy

Collector of Land Acquisition, Kumbakonam (1935) 71 M.L.J. 76 : ILR 59 Mad. 554. The petitioner conceded that this was the effect of the

decision, but he contends that it does not correctly state the law. He says that the judgments of the Privy Council in Ramachandra Rao v.

Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 and Bhagwati v. Ram Kali (1939) 2 M.L.J. 98 : L.R. 66 IndAp

145 : ILR 1939 All. 460 leave no doubt that an appeal does lie.

Before proceeding to examine the authorities which have been quoted to us in the course of the arguments I will refer to other provisions of the

Land Acquisition Act which have bearing on the question under discussion. Section 18 says that any person who has not accepted an award may

require the Collector to refer the matter for the determination of the Court, whether his objection be to the measurement of the land, the amount of

the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. Therefore a person

interested can require the Collector to refer a dispute as to the apportionment to the Court, just as the Collector may refer it on his own initiative

under the provisions of Section 30. As the result of the decision of the Privy Council in Rangoon Botatoung Co. Limited v. The Collector,

Rangoon (1912) 23 M.L.J. 276 : L.R. 39 IndAp 197 : ILR 40 Cal. 21 , Section 26 of the Act was amended, and it is now provided that an

award made u/s 18 shall be deemed to be a decree and the statement of the grounds of the award a judgment within the meaning of Section 2,

Clause (2) and Section 2, Clause (9), respectively, of the Code of Civil Procedure, 1908. The effect of this amendment is to bring the award

within the purview of Section 54. Section 31 says that on making an award u/s 11 (which relates to the inquiry into the area of the land, the

compensation payable for it, and the apportionment of the compensation) the Collector shall pay the compensation awarded by him to the persons

entitled thereto, unless prevented by one or more of the following contingencies:--(i) If they shall consent to receive it, (ii) or if there be no person

competent to alienate the land; or (iii) if there be any dispute as to the title to receive the compensation or as to the apportionment of it. In such

circumstances the Collector shall deposit the amount of the compensation in the Court to which a reference u/s 18 would be submitted. Section 53

says that save in so far as they may be inconsistent with anything contained in the Act the provisions of the CPC shall apply to all proceedings

before the Court under the Act. Section 54 reads as follows:

Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the

contrary in any enactment for the time being in force, an appeal shall lie only in any proceedings under this Act to the High Court from the award,

or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to His

Majesty in Council subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908 and in Order 45, thereof.

The petitioner says that a judicial officer appointed u/s 3(d) constitutes a Court and that by virtue of the provision''s of Section 53 and of the

saving words ""Subject to the provisions of the Code of Civil Procedure, 1908 applicable to appeals from original decrees"" which precede the

restrictive provisions of Section 54, there is a right of appeal.

In Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 a dispute arose as to the apportionment

of compensation awarded by the Collector. This dispute was decided by the District Court of Tanjore and resulted in an appeal to this Court. In a

subsequent suit the title to the land with which the acquisition proceedings were concerned was again disputed and it was this suit which gave rise

to the appeal to the Judicial Committee. The area in the subsequent suit was larger than the area with which the proceedings were concerned, but

this did not affect the question of title. The Judicial Committee held that the decision of this Court on appeal from the District Court''s order of

apportionment operated as res judicata. It was argued that the decision of this Court in the proceedings arising out of the land acquisition case

could not be regarded as a decree, but their Lordships said that how the proceedings were commenced was a matter which was not material,

provided that they were instituted in the manner that gave the Court jurisdiction ""for they ended in a decree made by the High Court and

appealable to this Board"". The Board in effect held that the decision of the District Judge, amounted to a decree and that the decision of this Court

was a decree appealable to the Board. As the proceedings had resulted in a decree which had decided the question raised in the subsequent suit

the decree operated as res judicata. The ground of the decision was stated in these words:

Such dispute"" (the dispute regarding apportionment) forms no part of the award and it would indeed be strange if a controversy between two

people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal, which would be wholly taken away

when the piece of land was represented by a sum of money paid into Court.

In Bhagwati v. Ram Kali (1939) 2 M.L.J. 98 : L.R. 66 IndAp 145 : ILR 1939 All. 460 , the Privy Council considered the judgment in

Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 , and re-affirmed it. Delivering the judgment

of the Board, Lord Porter said:

In order successfully to establish a plea of res judicata or estoppel by record it is necessary to show that in a previous case a Court having

jurisdiction to try the question came to a decision necessarily and substantially involving the determination of the matter in issue in the latter case.

It was at one time a matter of doubt in India whether the determination of a Court to which a matter has been referred by the Collector u/s 18 of

the Land Acquisition Act was such a decision. That doubt was resolved by the judgment of this Board in Ramachandra Rao v. Ramachandra Rao

(1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 , which decided that where a dispute as to the title to receive the compensation has

been referred to the Court, a decree thereon not appealed from renders the question of title res judicata in a suit between the parties to the dispute.

In that case some question arose as to whether any appeal lay to His Majesty in Council in a case where the determination of the Judge ended in

an award and not in a decree. The Board took the view that where the matter referred was not the adequacy of the amount of compensation

awarded, but a dispute between the persons claiming compensation, involving it may be, difficult questions of title, the resultant decision was not an

award but a decree.

It will now be convenient to refer to the other authorities which have been referred to in argument. In Mahalinga Kudumban v. Theetharappa

Mudaliar (1928) 56 M.L.J. 387, Devadoss and Jackson, JJ., held that an order passed by a Subordinate Judge on a reference u/s 30 of the Land

Acquisition Act was a decree within the meaning of Section 2(2) of the CPC and an appeal lay from it u/s 96 of the Code, which provides that an

appeal shall lie from every decree passed by a Court exercising original jurisdiction to the Court authorised to hear appeals. Section 13 of the

Madras Civil Courts Act, 1873, says that regular or special appeals shall, when such appeals are allowed by law, lie from the decrees and orders

of a District Court to the High Court and that appeals from the decrees and orders of Subordinate Judges and District Munsifs shall, when such

appeals are allowed by law, lie to the District Court, except when the amount or value of the subject matter of the suit exceeds Rs. 5,000, in which

case the appeal shall lie to the High Court. In Mahalinga Kudumban v. Theetharappa Mudaliar (1928) 56 M.L.J. 387, the Court considered the

decision of the Privy Council in Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon (1912) 23 M.L.J. 276 : L.R. 39 IndAp 197 : ILR 40

Cal. 21 , and Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320. The Land Acquisition Act was

similarly interpreted by Ramesam arid Venkatasubba Rao, JJ., in Venkatareddi v. Adinarayana Rao (1928) 56 M.L.J. 357 : ILR 52 Mad. 142,

which also had reference to an order of a Subordinate Judge u/s 30. Varadachariar and Burn, JJ., followed Venkatareddi v. Adinarayana Rao

(1928) 56 M.L.J. 357 : ILR 52 Mad. 142, in Appaswami Vannian v. Velu Vaidyan (1934) 40 L.W. 37.

There are three decisions of this Court which are in conflict with those I have mentioned, namely, Mahant Bagavathi Doss Bavaji, Dharmakartha

of Sri Venkatesaperumal Devasthanam Vs. M. Sarangaraja Aiyangar and Others, . In the first of these cases Wallace and Stone, JJ., held that

where the Chief Judge of the Court of Small Causes, Madras, had been appointed the special Judicial Officer u/s 3(d) of the Land Acquisition Act,

hp did not constitute a ""principal Civil Court of Original Jurisdiction"" within the meaning of that section, but was a special Court having its own

statutory status which did not fallow the status of the Court ordinarily presided over by the person who happened to be appointed as its Judge.

What the learned Judges here evidently had in mind was that the special judicial officer was the Chief Judge of the Court of Small Causes, a Court

governed by a special Act of the Legislature which gives no right of appeal to another Court. An appeal from the decision of a Single Judge lies to

a Bench of Judges of the Court of Small Causes and the High Court has only powers of revision. It is not necessary to pause to consider whether

the judgment in that case is open to question as different considerations apply from those which apply in the present case.

Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras (1933) 66 M.L.J. 43 : ILR 57 Mad. 271, was decided by a Full

Bench consisting of Madhavan Nair, Jackson and Lakshmana Rao, JJ., and the case had reference to the question whether there was an appeal to

the High Court either under the Madras Hindu Religious Endowments Act, 1926, or under the Code of Civil Procedure, from an order passed by

the District Judge u/s 84(2) of the Madras Hindu Religious Endowments Act. The provisions of that Act have nothing really in common with the

provisions of the Land Acquisition Act, but in Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras (1933) 66 M.L.J. 43 :

ILR 57 Mad. 271, the effect of the judgment of the Privy Council in Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A

129 : ILR 45 Mad. 320 , was discussed at length, and the respondent places great reliance on the observations made by Madhavan Nair, J., as

they are to the effect that the Privy Council was only considering whether the order of this Court on appeal constituted a decree within the meaning

of the CPC of 1882. Under the Code of 1882 the word ''decree'' was defined as ''the formal expression of an adjudication upon any right claimed,

or defence set up, in a Civil Court when such adjudication so far as regards the Court expressing it, decides the suit or appeal''. The words ''or

appeal'' have been omitted from the present Code and the Full Bench considered that the presence of these words made all the difference. If the

Court had to decide the present petition in the light of the interpretation of Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49

I.A 129 : ILR 45 Mad. 320 , in Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras (1933) 66 M.L.J. 43 : ILR 57 Mad.

271, we should be bound to hold that an appeal does not lie in. a case like the present one. But the matter does not rest there, because in

Bhagwati v. Ram Kali (1939) 2 M.L.J. 98 : L.R. 66 IndAp 145 : ILR 1939 All. 460 , the Privy Council considered its decision in Ramachandra

Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 , in a case which arose after the Code of 1908 came into

force, and it has reaffirmed it. Krishnamoorthy Aiyar v. The Special Deputy Collector of Land Acquisition, Kumbakonam (1935) 71 M.L.J. 76 :

ILR 59 Mad. 554, was decided by Madhavan Nair and Stone JJ., and the same view of the effect of the decision in Ramachandra Rao v.

Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 , was taken. The fact that this opinion was expressed in a case

relating to the decision of a special judicial officer appointed u/s 3(d) of the Land Acquisition Act led to the conclusion of the Court below that it

was binding in the present case.

The latest decision of this Court is that of King, J., in Raja of Sivaganga v. Karuppiah (1938) 49 L.W. 238, and was decided after the District

Judge had dismissed the petitioner''s appeal. This was a reference to the Subordinate Judge u/s 30 of the Land Acquisition Act relating to dispute

between a Zamindar and a number of ryots with regard to the distribution of compensation awarded in respect of land which had been acquired.

My learned brother, King, considered that the case was governed by the decision of the Privy Council in Ramachandra Rao v. Ramachandra Rao

(1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 , and held that an appeal lay, an opinion which I share, although had it not been for the

decision of the Privy Council in Bhagwati v. Ram Kali (1939) 2 M.L.J. 98 : L.R. 66 IndAp 145 : ILR 1939 All. 460 , I should have felt

constrained to hold that the interpretation of Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 ,

by the Full Bench in Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras (1933) 66 M.L.J. 43 : ILR 57 Mad. 271, was

binding on us.

In my opinion all controversy is set at rest by the judgment of the Privy Council in Bhagwati v. Ram Kali (1939) 2 M.L.J. 98 : L.R. 66 IndAp

145 : ILR 1939 All. 460 The opinion expressed in Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45

Mad. 320 , was there reaffirmed, notwithstanding the alteration mad6 by the present Code in the definition of the word ''decree''. J In the light of

the recent pronouncement of the Privy Council, Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad.

320 , must be taken to decide that an order, not merely the order on appeal, but an order determining a reference u/s 18 or u/s 30 - it is admitted

that there is no difference in principle between the two sections - is to be regarded as a decree and not as an award. It follows that the

interpretation in Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 I.A 129 : ILR 45 Mad. 320 , given by the Full Bench in

Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras (1933) 66 M.L.J. 43 : ILR 57 Mad. 271, can no longer be regarded as

being authoritative.

It has been conceded by Mr. T.M. Krishnaswami Aiyar on behalf of the respondent that a judicial officer appointed u/s 3(d) cannot be

regarded as a persona designata and that he constitutes a Civil Court. But he says that it is a special Court, not one of ordinary civil jurisdiction and

therefore a right of appeal must be given by the Act under which the Court is constituted or by some other express provision. That the judicial

officer who is appointed by the Provincial Government to take the place of the District Judge constitutes a Civil Court was recognised in

Krishnamoorthy Aiyar v. The Special Deputy Collector of Land Acquisition, Kumbakonam (1935) 71 M.L.J. 76 : ILR 59 Mad. 554. In National

Telephone Co., Ltd. v. His Majesty''s Post-Master General (1913) A.C. 546 Lord Shaw of Dunfermline pointed out that in the general case,

when a Court of Record becomes possessed, by force of agreement and statute, of a reference to it of differences between parties, the whole of

the statutory consequences of procedure before such a Court ensue. The Subordinate Judge who is appointed u/s 3(d) of the Land Acquisition

Act to decide a dispute with regard to the allocation of compensation money does not constitute a Court of record, but admittedly he does

constitute a Civil Court and on the strength of the decision in the National Telephone Company''s case (1913) A.C. 546, it might reasonably be

argued that the proceedings before him are governed by the provisions of the Code of Civil Procedure. Support for this argument is to be obtained

from the judgment of the Privy Council in Secretary of State for India v. Chelikani Rama Rao (1916) 31 M.L.J. 324 : L.R. 43 IndAp 192 : ILR 39

Mad. 617 . There a claimant whose claim was rejected by the forest settlement officer appealed to the District Court under the Madras Forest Act

1882, which makes no provision for a second appeal and consequently it was contended that there was no right of further appeal. Their Lordships

refused to accept this contention, holding that when proceedings of this character reach the District Court that Court is appealed to as one of the

ordinary Courts of the country with regard to whose procedure, orders and decrees, the ordinary Rules of the CPC apply. It is not going much

further to say that the same principle applies when an Act like the Land Acquisition Act provides for reference of disputes to the District Court and

gives the Provincial Government power to substitute for the District Judge another judicial officer who admittedly decides the dispute as a Civil

Court. The argument that there is here a right of appeal is made all the stronger by the provisions of Sections 53 and 54 of the Act. Any

controversy, however, is settled by the decision of the Privy Council in Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49

I.A 129 : ILR 45 Mad. 320 , and Bhagwati v. Ram Kali (1939) 2 M.L.J. 98 : L.R. 66 IndAp 145 : ILR 1939 All. 460 .

I would allow this petition and remit the case to the District Judge with the direction that he shall hear and decide the petitioner''s appeal in

accordance with law. The petitioner is entitled to his costs.

King, J.

I agree.

Krishnaswami Ayyangar, J.

I agree.