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Judgment
Joseph Vithayathil, J.—Defendant 1 is the Appellant. The suit is for a declaration that the assessment levied on the plaint properties under the provisions of the Travancore Edavagai Act, Act 3 of 1109, is excessive and for correction of the patta issued to the Plaintiff under that Act. The plaint properties which are Cherikal lands having an extent of 6221 acres are jenmom properties of the Poovarani Devaswom owned by the Plaintiff. They lie within the Edavagai of Defendant 1, the Poonjar Chief. The Edavagai Act provides for the revenue settlement of lands lying within the Edavagai. Section 5(2)(ix) of the Act authorises the levy of an assessment called ''melvaram'' on all jenmam lands lying within the Edavagai, such assessment being fixed at l/8th of the pattom assessable on the lands. The pattom assessed for the plaint properties was 94976 fanams 2 chapter 11 cash. l/8th of this, namely, 11872 fanams 5 cash, was fixed as the ''melvaram'' imposed u/s 5(2)(ix) of the Act. Besides this amount, the Settlement Officer included in the patta a sum of Rs. 1000/- as dues payable to Defendant 1 by the Devaswom. The Plaintiff''s case is that the Settlement Officer went wrong in including this amount in the patta as assessment for the properties. The Plaintiff, therefore, filed this suit for declaration that the Devaswom is not liable to pay this sum of Rs. 1000/- as ''melvarom'' for the properties and for correcting the patta by reducing that amount from the assessment.
It was under the following circumstances this sum of Rs. 1000/- was included in the patta. The plaint properties were claimed by Defendant 1 as properties belonging to his Koikal. They were in the possession of the Koikal from very ancient times. Dispute arose between the Plaintiff Devaswom and Defendant 1 Koikal relating to the title to these properties. This dispute was settled by the decision in O.S. No. 15 of 1086 of the Kottayam District. Court filed by Defendant 1 against the Plaintiff Devaswom. Exhibit V is the copy of the judgment in the District Court in that case. This judgment was confirmed in appeal. Copy of the appellate judgment is, however, not filed in the case. It was held in that case that the plaint properties lie within the Poonjar Edavagai but that they are jenmom properties of the Plaintiff Devaswom. It was also held that the Poonjar Chief was entitled to Rajabhogam in respect of the properties. The appeal judgment in the case is dated 7-5-1095. After this, Defendant 2 in this case, Mr. Krishna Iyer, took a lease of the properties from the Plaintiff Devaswom with a term of 101 years. Exhibit IV dated 8-6-1096 is the lease deed. He along with the Plaintiff filed O.S. No. 38 of 1097 of the Kottayam District Court for recovery of possession of the properties from Defendant 1. The persons in actual enjoyment of the properties were also impleaded as Defendants in the suit. Defendant 1 in that case was the, Poonjar Chief.
After his abdication Defendant 93 was impleaded in his place. That suit was compromised between Mr. Krishna Iyer (Plaintiff 2) and Defendant 96. Exhibit A is the compromise petition filed by them on 16-8-1108. Under that compromise the Poonjar Chief agreed to give possession of the properties to Mr. Krishna Iyer except 1500 acres which were in the possession of European Planters, and Mr. Krishna Iyer agreed to pay Rajabhogam for the properties he got possession of at the rate of 4 annas per acre. Exhibit B "is the compromise petition filed in the case by the Plaintiffs and Defendant 2, Mr. Joseph Murphy, who was in possession of some of the properties. Under Ex. B Mr. Murphy agreed to pay Poonjar Koikal proportionate ''melvarom'' if the Koikal was found to be entitled to ''melvarom'' in respect of the properties. Exhibit C is the compromise petition filed by the Plaintiffs and Defendant 3 in the case, Mundakkayam Valloy Rubber Co. Ltd., in respect of the properties in the possession of that company. Exhibit C also contained a provision similar to that contained in Ex. B with regard to the payment of ''melvarom'' to the Poonjar Koikal. Subsequently, Mr. Krishna Iyer and the Poonjar Chief modified the terms of the compromise, Ex. A, by means of an Udampadi, Ex. D, executed by them on 16-3-1106. Under that Udampadi Mr. Krishna Iyer agreed to pay a lump sum of Rs. 1000/- to the Chief instead of 4 annas per acre as melvarom for the properties in his possession.
In respect of the properties in the possession of other persons the Poonjar Chief filed two suits, i.e., O.S. No. 45 of 1110 and O.S. No. 60 of 1111 of the Kottayam District Court for melvarom due to him. The two suits were tried together and Ex. E, is the copy of the judgment of the District Court. It was held by that Court that the Poonjar Chief was entitled to get ''melvarom'' for the properties involved in the two suits at the rate of five annas four pies per acre. The Defendants in those cases appealed from the decrees of the District Court and the decision of the High Court is reported in 1945 Trav LR 681 (A). The High Court held that the Poonjar Chief was entitled to get ''melvarom'' at the rate of 4 annas per acre in respect of the properties involved in the suits. It is the amount of Rs. 1000/- which Mr. Krishna Iyer agreed to pay to the Poonjar Chief as ''melvarom'' under the Udampady, Ex. D, that was included in the patta by the Settlement Officer over and above the l/8th pattom assessed as ''melvarom''. As the settlement was effected before the decision in O.S. No. 45 of 1110 and O.S.- No. 60 of 1111 the ''melvarom'' payable in respect of the properties covered by those two suits was not included in the patta. The case of the Plaintiff is that the Devaswom is not liable to pay this amount of Rs. 1000/- to Defendant 1 Koikkal, that i either the compromise, Ex. A, nor the Udampady, Ex. D, is binding on the Plaintiff and that in any case Defendant 1 is not entitled to get as ''melvarom'' anything over and above the melvarom imposed u/s 5(2)(ix) of the Act, namely, l/8th of the assessable pattom.
Defendant 1 contended that besides the ''melvarom'' imposed u/s 5(2)(ix) of the Act the Koikkal was entitled to get from the Plaintiff Devaswom the ''melvarom'' which the Devaswom was liable to pay before the date of the Act, that that also should be included in the assessment for the properties and that the suit was barred by limitation. According to Defendant 1 the suit ought to have been filed within one year from the date of the decision of the Settlement Officer namely, 8-7-1113, under Article 11 of the Travancore Limitation Act, corresponding to Article 14 of the Indian Act. The suit was filed only on 31-1-1118.
The Court below held that the Plaintiff Devaswom is liable to pay only the ''melvarom'' imposed u/s 5(2)(ix) of the Act, namely, l/8th of the assessable pattom and that it is not liable to pay the sum of Rs. 1000 which Defendant 2 in this case had agreed to pay under the Udatnpadi Ex. D. It was also held that the suit was not barred by limitation.
The grounds urged in this appeal are that the Court below went wrong in holding that the suit is not barred by limitation and that the Plaintiff Devaswom is not liable to pay the sum of Rs. 1000 which Defendant 1 Koikkal was entitled to get as ''melvarom'' for the properties before the date of the Edavagai Act.
The question of limitation may be considered first. As already stated, the Appellant''s case is that the suit comes under Article 11 of the Travancore Limitation Act. Under that Article the suit ought to have been instituted within one year from the date of the order settling the assessment on the properties. According to the Appellant, the settlement of the assessment was made on 8-7-1113 and the decision was communicated to the Devaswom on 12-7-1113. Exhibit VIII is the notice sent to the Plaintiff by the Settlement Officer. The patta which is Ex. G in the case appears to have been prepared on 24-12-1114. The suit was filed on 31-1-1118. It is, therefore, argued that the suit is barred by limitation. According to the Plaintiff the Article of the Travancore Limitation Act that applies to the case is Article 109 corresponding to Article 120 of the Indian Act and not Article 11. Article 11 reads thus:
To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for.
One year (from) the date of the act or order.
Article 109 is the residuary Article which prescribes a period of 6 years for suits for which no period of limitation is provided elsewhere in the schedule to the Limitation Act. According to Defendant 1 the Plaintiff was bound to set aside the order, Ex. VIII, within one year from the date thereof while according to the Plaintiff he was not bound to set aside the order at all. The suit as framed is for a declaration that the Plaintiff is not liable to pay the amount covered by Ex. D as assessment on the plaint properties and that the Settlement Officer went wrong in including that amount also in the patta. There is no specific prayer for setting aside the order of the Settlement Officer or the patta. The question for consideration is whether the Plaintiff is entitled to get the declaration asked for in the plaint unless the order of the Settlement Officer is set aside within the period prescribed by Article 11. Before deciding this question it is necessary to consider the nature of the order of the Settlement Officer. The notice, Ex. VIII issued to the Plaintiff by the Settlement Officer gives the substance of the order passed by him. A copy of the order itself has not been produced in the case. This is what the notice says:
(Original in Malyalam)
Particulars of decision-It has been decided, to grant patta in favour of Poovarani Devaswom see Section 5(2)(ix) of the regulation) after levying Melwaram according to rules in respect of survey numbers as per list attached. The contention for the issue of patta to the property lying between the village boundary and the place where water from Pullayattu river flows is rejected.
Sd Settlement Officer, 12-7-1123.
This only shows that it was decided by the Settlement Officer that patta could be issued in favour of the Devaswom only in respect of some of the properties claimed by the Devaswom and that ''melvaram'' would be assessed on those properties according to the provisions of Section 5(2)(ix) of the Edavagai Act. Exhibit VIII does not refer to any order fixing the amount of melvarom. Therefore, so far as the assessment is concerned it was not at all necessary to set aside the order of the Settlement Officer. It is only in case the Devaswom impeaches the order in so far as it refused to issue patta in favour of the Devaswom for some of the properties claimed by it that the Devaswom would be bound to set aside the order. Therefore, there is no substance in the contention that the Plaintiff was bound to set aside the decision of the Settlement Officer mentioned in the notice, Ex. VIII.
The further question for consideration is whether the Plaintiff was bound to set aside the patta, Ex. G. There is nothing to show that the patta was prepared after hearing the Plaintiff or after giving him an opportunity to show cause why the assessment should not be fixed in the manner in which it was fixed in Ex. G. The preparation of the patta appears to have been a mere executive order of the Settlement Officer. It was not an order passed between two parties. Again, even if the declaration asked for in the plaint is allowed it will not have the effect of ''setting aside'' the patta. It will only have the effect of correcting the patta with respect to the assessment, it is doubtful whether that will come within the scope of Article 11 which applies only to suits for ''setting aside'' an order or act of an officer of Government.
Again, Section 17(2) of the Edavagai Act shows that proceedings taken under the Act are subject to the result of suits filed by aggrieved parties in the civil Court. Section 17 reads thus:
(1) No civil Court shall take into consideration or decide any question as to the rate or amount of pattom assessed or assessable on'' any land under the provisions of this Regulation or as to the amount of pattom fixed or hereinafter fixed on portions of land,
(2) But nothing contained in this Regulation: shall be deemed to prevent parties aggrieved by any proceedings under this Regulation except to the extent provided for in Sub-section (1) from seeking redress in the civil Courts.
The Travancore Jenmi and Kudiyan Amendment Act, Act 12 of 1108, contains a similar provision enabling parties aggrieved by the decision of the Jenmikkaram Settlement Officer to file suits in civil Courts. That provision is to the following effect:
Provided that any party aggrieved shall have the right to institute a suit in a civil Court of, competent jurisdiction to establish the right which he claims and our Government shall abide by the final result of such suit and may if-necessary correct the register of Jenmikkaram accordingly.
On the basis of the above provision the Travancore High Court held in-Edappilli VallaRaja v. Subramoniaru 18 Trav LT 13 (B) that a suit for a declaration that the Plaintiff wail liable to pay only a particular amount as Jenmikkaram and for cancellation of the Jenmikkaram Settlement Officer''s order of assessment instituted more than one year from the date of the order was not barred by limitation. Krishna Pillai, J. (as he then was) observed thus in that case:
As the statute confers a right of suit for the establishment of the alleged right the suit to this case can be considered only as one for that purpose. That the suit is mainly for that purpose is clear from Relief No. 2 specified In the plaint whereby the Plaintiff has asked for a declaration that he is not liable to pay thing more than 34 fanams by way of michavaram charged on the properties. Though relief No. 2 expressly asks for the cancellation of the Jenmikaram Settlement Officer''s decision we are satisfied that it is not a suit for that purpose, taut merely one for declaration of the Plaintiff''s rights specified in the second relief. It is conceded that if the suit is so construed it will not be barred by limitation. The mere fact that the Plaintiff has asked for a relief which he is not entitled to ask for or bound to seek, cannot be held to deprive him of his right to other reliefs which he has asked for and which he is entitled in law to claim.
It is true that the wording of the above provision in the Jenmi and Kudiyan Amendment Act is different from that of Section 17(2) of the Edavagai Act, but we do not think that that will make any difference so far as the effect of the provisions in the two Acts is concerned. Although it is not stated in Section 17(2) of the Edavagai Act that the Government or the Chief shall abide by the final result of the suit and make the necessary corrections in the patta, the effect of the provision is that such correction, if necessary, will be made in the patta on the basis of the result of the suit.
Reference may also be made to the decision of the Calcutta High Court in-Luchmon Sahai v. Kanchan Ojhain 10 Cal 525 (C). In that case the Plaintiffs applied before the Collector for the registration of their names in respect of a share in certain mouzahs under the Bengal Land Registration Act. On the objection of the Defendants the petition was disallowed. More than one year after the date of the order the Plaintiff sued for declaration of their title and for setting aside the order of the Collector. Mitter and Maclean JJ. held that Article 14 of the Indian Limitation Act would not apply to the case and that the suit was not barred by limitation. Section 89 of the Land Registration Act enabled persons affected by an order passed under that Act to have their rights established by means of a civil suit. The learned Judges held that the effect of this provision was that if the Plaintiffs filed a suit for declaration of their right and obtained a decree in their favour the revenue authorities would be bound to rectify the register in accordance with the declaration made by the civil Court, that the Plaintiffs were not bound to sue for setting aside the order of the Collector and that therefore Article 14 of the Limitation Act would not apply to the case.
The same view was taken by Ashutosh Mookerjee J. in-Shyama Sundari Dasya v. Mahomed Zarip 9 C LJ 91 (D). That also was a case under the Bengal Land Registration Act and the facts were similar to those in-10 Cal 525 (C). His Lordship observed thus in that case:
The suit is of the nature contemplated by Section 89 of the Land Registration Act which provides that nothing contained in that Act shall be deemed to preclude any person from bringing a regular suit for possession or for declaration of right to any immovable property to which he may deem himself entitled. The Plaintiffs seek for declaration of their title to the shares in dispute. No doubt, their ultimate object is, if they succeed in this litigation, to apply before the Collector for registration of their names on the basis of their title: but that does not make this suit one to set aside an act of an officer of Government.
In-Naboghan Badhai v. Raghunath AIR 1916 Cal 594 (E) in a record-of-rights prepared under the Central Provinces Land Revenue Act the Defendants were described as permanent tenants under the Plaintiffs. The Plaintiffs sued to have the entry amended that the Defendants might be described as mortgagees and not as permanent tenants. Section 83 of the Act enabled persons affected by an order passed under the Act to file a civil suit for establishing their right. It was held that Article 14 of the Limitation Act would not apply to the case. The same view was taken by Pratt and Mitra JJ. In-Agin Bindh Upadhya v. Mohan Bikram Shah 30 Cal 20 (F). That was a case under the Bengal Tenancy Act. Section 109 of that Act contained a provision similar to Section 83 of the Central Provinces Land Revenue Act and it was held that a suit instituted on the basis of that section would not come within the scope of Article 14 of the Limitation Act.
The principle laid down in these decisions applies to this case also. We hold that Article 11 of the Travancore Limitation Act will not apply to this case and that it is Article 109 of that Act that applies. We, therefore, agree with the learned District Judge in his view that the suit is not barred by limitation.
Coming to the merits of the case, the point in controversy between the parties relates to the interpretation of Section 5(2)(ix) of the Edavagai Act. The relevant provisions of Section 5 are the following:
5(1) Subject to such rules as may be prescribed consistent with the provisions of this Regulation the conduct of settlement and the proceedings in connection therewith shall, as far as may be, be regulated by the law and procedure, for the time being in force, relating to the settlement of Sirkar lands,
(2) such rules shall, inter alia, provide:
(i) for the holdings held on permanent or irredeemable titles being settled as registered holdings without the levy of any tharavila or thadivila or any alteration of the rent payable to the Chief:
X X X
(ix) for the imposition of a ''melvaram'' for payment (over and above the rent otherwise payable) to the Chief on holdings provided for in Clause (1) and on Jenmom lands and for the rates of such ''melvaram'' being fixed at l/8th of ''pattam'' assessable on such lands, provision being however, made that the total demand on the land for rent and ''melvaram'' together shall not exceed the amount of the ''pattom''.
The question for consideration is whether the sum of Rs. 1000 which Defendant 2 had agreed to pay the Chief in respect of the plaint properties under the udampadi, Ext. D, is ''rent otherwise payable''.
The Plaintiff''s case is that he being not a party either to the compromise, Ext. A, or to the udampadi, Ext. D, they are not binding on him and that, therefore, he is not liable to pay the sum of Rs. 1000 which Defendant 2 had agreed to pay the Chief under Ext. D as ''melvaram'' rajabhogam for the properties and that in any case it is not rent payable for the properties. It cannot be denied that Exts. A and D are not binding on the Plaintiff since the Plaintiff was not a party either to the compromise, Ext. A, or to the udampadi, Ext. D. But Defendant 1''s case is that apart from Exts. A and D his right to get ''melvaram'' in respect of the suit properties has been declared in suits in which the Plaintiff Devaswom was a party and that those decisions are binding on the Devaswom. Ext. V suit, was instituted by Defendant 1 against the Plaintiff Devaswom for declaration of Defendant 1''s title to the suit properties. The second part of issue No. 1 in that case was to the following effect:
Is Plaintiff entitled to recover Rajabhogam in respect of the plaint properties?
This is what the learned District Judge held with regard to that part of the issue:
The second part of the first issue, namely, ''Is the Plaintiff entitled to recover Rajabhogam in respect of the plaint property?'', was not argued before me at the final hearing, inasmuch as the Defendant has never contested the Plaintiff''s status as overlord or his right to Rajabhogam. The Defendant''s case is that in respect of all Cherikal lands cultivators pay 20 per cent, as varam, half of which goes to the overlord and half to the jenmi, and that in the present case the original stipulation of 10 per cent, varam to the Devaswom implies the claim of the Poonjar Chief as overlord to the remaining 10 per cent. It is fully conceded that the Chief, and not the Sirkar, is the recognised overlord of all lands siluate within the Edavagai limits and that the disputed properties lie, according to the Defendant himself, within such limits. The second part of the first issue may, therefore, be found in favour of the Plaintiff without any further discussion.
It is admitted that this finding was not questioned in the appeal filed before the High Court. In Ext. E suit, filed by the Poonjar Koikal the Devaswom was Defendant 1. The Devaswom contended, in that suit that the Poonjar Koikal was not entitled to get any melvaram in respect of the properties included in the plaint Cherikal.
Issue No. 2 in that case was the following:
Are plaint properties chargeable with melvaram-rajabhogam and if so at what rate?
It was held that the Koikal was entitled to get, melvaram-rajabhogam in respect of the properties and it was fixed at the rate of 5 annas 4 pies per acre. In the appeal filed in the High Court the finding that the Chief was entitled to ''melvaram'' in respect of the properties was upheld although the rate was reduced to four annas per acre. In the circumstances, the Plaintiff Devaswom cannot contend that Defendant 1 is not entitled to get ''melvaram'' in respect of the plaint properties. So far as the rate of ''melvaram'' is concerned, the amount fixed under Ext. D is less than what would be the melvaram at the rate of 4 annas per acre fixed by the High Court in Ext. E case. The Plaintiff''s learned Counsel submitted at the time of hearing that in case it is found that Defendant 1 is entitled to get ''melvaram'' in, respect of the plaint properties over and above what is imposed u/s 5(2)(ix) of the Act he does not want any enquiry into the question as to the quantum of such ''melvaram.
The real point in dispute between the parties is whether Defendant 1 is entitled to get any ''melvaram'' over and above the ''melvaram'' imposed u/s 5(2)(ix). The Plaintiff''s case is that the ''melvaram'' imposed under the clause is one in substitution of the original ''melvaram'' payable for the properties and not an additional burden imposed by the statute while Defendant 1''s case is that it is an additional assessment over and above the original ''melvaram''. According to Defendant 1 the ''melvaram'' imposed by the statute has nothing in common with the original ''melvaram'' payable to the Chief in respect of Cherikal lands belonging to jenmies. It is argued that ''melvaram'' imposed u/s 5(2)(ix) is an assessment payable not only in respect of Cherikal lands belonging to jenmies but in respect of all jenmom lands and also in respect of all lands coming within the purview of Section 5(2)(1), namely, holdings held on permanent or irredeemable titles within the Edavagai. In order to understand, this point it is necessary to know the exact nature of ''melvaram'' which Defendant 1 was claiming, in respect of Cherikal lands belonging to jenmies before the date of the Edavagai Act. As regards Cherikal lands belonging to the State, the State used to realise from the tenants who cultivated such lands what was called ''melvaram'', namely, ''varam'' on account of hill-cultivation. The share collected by the State was 2/10th of the produce. In the case of Cherikals belonging to Jenmies l/10th was collected by the jenmies and the other l/10th by the State. The share taken by, the State was called ''melvaram'' while that taken by the jenmi was called ''nilavaram''. In the case of Cherikals belonging to jenmies lying within the Edavagai the Chief collected the ''melvaram'' which in other cases was collected by the State.
Reference may be made to the report of the Settlement Division Peishkar on the revenue settlement of Travancore Chapter VII, which contains the following note relating to Cherikal lands:
The term ''Cherickal'' was ordinarily applied to dry lands known as such, in hilly tracts in, certain taluks of the Quilon and Kottayam Divisions, in which paddy or other cultivation was carried on in recurring periods of years and on which under the pre-settlement revenue orders, tax was either levied or leviable by Government only during years of cultivation. The Cherickal lands were thus under the old practice immune from the payment of assessment to the Sirkar during the years of non-cultivation, though the lands themselves once taken up by a ryot for cultivation need not be and were not in many cases, relinquished by him.
The cultivation of Cherickals is of a peculiar, character. The lands are cultivated generally for 3 and rarely for 4 successive years and then1 allowed to run into jungle. The first crop raised is invariably paddy and is popularly known as Uzhavu. The second crop which is known as Kalai is either paddy or other cereals, or sugarcane and c., and the third crop designated Kurumpuppu consists of cereals other than paddy, sugarcane, ginger, yams, plantains and c. Cultivation is then stopped for the time being. The period of fallow extended'' in early times to twelve years and in some cases even more. But with the extension of cultivation and the demand for land, the interval of fallow was gradually lessened so much so that in course of time only three years were allowed in some places.
The system of Cherickal assessment was also peculiar. In their round of annual inspections, the village officials ascertained the Cherickals under cultivation in each year and the crops with which they were cultivated. A second inspection was made at the time of harvest and crops gathered were then estimated for the purpose of levying the Sirkar tax. The tax which was known in the revenue accounts as ''Malavaram'' or ''Vilameladi'' according as it was imposed on Cherickals cultivated with paddy or with'' other crops, was fixed at 2/10 of the produce. It was levied either in kind or in money at the current rates in the case paddy tax and in money at certain fixed ''Padivu'' rates in the case of other crops,
The Government Order reviewing the Settlement Pinal Report extracted in the travancore Land Revenue Manual, Vol. II, page 880 will also help to give an idea about the nature of ''Melvaram'' realised by the State in respect of Cherickal lands:
The ''cherickal'' lands were unregistered dry lands in hilly tracts in certain Taluks of the Quilon and Kottayam Divisions, in which paddy or other cultivation was being carried on in recurring periods of years and on which the tax was being either levied or was leviable by the Government during the years of actual cultivation. The assessment was known as ''melavaram'' or ''Vilameladi'', according as the cultivation raised was paddy or other crop. The assessment used to be fixed, after local inspection, at a certain proportion of the produce, and used to be levied either in kind or in money, at the current market rate in the case of the paddy tax, and in money at certain ''pathivu'' or fixed rate in the case of any other crop. In some places, besides the ''malavaram'' tax, an extra cess called ''paranellu'' and ''kutta'' was also levied on all Sirkar or ''Pandaravaka cherickals''. In the case of ''pandaravaka cherickals'' held on favourable terms, and also in the case of ''cherickals'' claimed by Devaswoms and Jenmis, only one-half the ''malavaram'' or ''vilameladi'' tax was ordinarily levied. Later on, the basis of the assessment was altered from the produce of the land to the extent cultivated; and irrespective of the crop raised, the tax was fixed entirely in money.
The question as to whether the State was entitled to realise any ''melavaram'' in respect of Cherickal lands belonging to Jenmies was considered by a Full Bench of the Travancore High Court in-Madhavan v. Sirkar 36 TLR 174 (G). It was hold in that case that Cherickal jenmam lands have always been treated in the matter of taxation differently from other jenman lands and have always been subject to assessment and that the State was entitled to realise ''melvaram'' in respect of these lands.
The decision of the Special Settlement Officer appointed by Government for the Poonjar Boundary Settlement has dealt with the question of the right of the Chief to ''Melvaram'' in respect of Cherickal lands belonging to jenmies lying within the Edavagai. Paragraphs 128 to 131 dealing with this question are extracted below:
With regard to the Chief''s thanathu cherickals it is said that he realises 2/10 of the produce as Malavaram. In the case of Devaswom Cherickals the Malavaram is split into two equal shares viz., the Melvaram and the Nilavaram, each being taken to be 1/10 of the produce. In addition to this a due called Katta and Paranel is also assessed upon these cherickals. Kutta and Paranel are calculated at the rate of 11/2 Edangalies of paddy for every para of land cultivated. The Melvaram, i.e., 1/10 of the produce, is realised by the Chief as his share of the Malavaram. The Nilavaram i.e., 1/10 of the produce and the Katta and Paranel at the rate of 11/2 Edangalis of paddy per para of cultivated land are entered in a nominal roll which is annually submitted to the Taluk. The Taluk officials realised the amount shown in those lists as the Sirkar share of the Malavaram.
But some of the Sirkar Devaswom cherikals are leased on Kuthakapattom tenure. Under this arrangement the lessee pays to the Sirkar annually the Kuthakapattom or rent. Of course, the cherikals will be cultivated only once in several years but the rent having to be paid annually its amount will be only a fraction of what would ordinarily be realised as Nilavaram. In the case of such lands the Chief realises the Melvaram (l/410 of the produce) while in the list submitted to the Taluk only the Katta and Paranel are mentioned; the Nilavaram is said to be omitted because in lieu of it the tenant annually pays the quit rent directly to the Sirkar. The existence of the practice above referred to may be gathered from the various malavaram lists filed in this case.
It is alleged on behalf of the Sirkar that the Chief has not been realising any dues with respect to Cherikals belonging to the Sirkar Devaswoms (vide Sirkar Statement dated 13-11-84). But the Malavaram accounts filed in this case show that the Sirkar receives only a moiety of the Malavaram. The presumption is that the other half goes to the Chief. C.Ex. VII shows that in 1065 the Tahsildar of Meenachil had under instructions from the Dewan Peishkar asked the Chief to explain on what authority he collected these dues from the ryots. In his reply the chief indignantly asserted that this has been the immemorial practice in the Edavaka (c.Ex.N. 1).
In this connection it will be interesting to draw attention to the following passage from the Travancore State Manual Vol. Ill page 315. In dealing with freehold jenmom lands the learned author says that "the peculiarity of these Jenmom properties is that their owners have absolute control over them and that they take from the ryots the pattam or rent as well as the Rajabhogam which in the case of other lands would go to the State and that the Devaswom and Brahinaswom lands in these tracts pay their Rajabhogam or quit rent to these Chiefs instead of to the Sirkar.
It will be seen from the above that the ''melvaram'' that the Poonjar Chief used to realise from Jenmies of Cherikal lands within the Edavagai was of the nature of ''melvaram'' realised by the State in respect of other Cherikal lands. This assessment whether it be of the nature of rent or not, related only to Cherikal lands while the ''melvaram'' imposed u/s 5(2)(ix) applies to all classes of jenmom lands and also to lands coming within the purview of Clause (1), namely, holdings held on permanent or irredeemable titles. In the circumstances, there is ho force in the contention that the effect of Section 5(2)(ix) is only to give statutory recognition to the ''melvaram'' that the Chief was originally entitled to get in respect of Cherikal lands belonging to jenmies.
Learned Counsel for the Plaintiff relied on the following observations of Sankarasubba Iyer J. in-1945 Trav LR 681 (A) already referred to:
This is what the learned Judge says at page 692:
If the Edavagai Act is taken as an enactment giving statutory recognition to the practice which had been obtaining in Edavagai from ancient times we have to hold that the Edavagai Chiefs used to levy melvaram from the lands in the Edavagai in the possession of Brahmin Jenmies and temples irrespective of the question whether they had been demised or not. It was argued by Mr. Parameswaran Pillai for the Appellants that this right to levy melvaram conferred under the Edavagai Act might have been granted in order to compensate the Edavagai Chiefs who were, as a result of the Act, compelled to confer rights of permanent occupancy on their tenants. But this argument can hardly justify jenmies inside the Edavagai being burdened with the liability to pay melvaram. The better view to take must be to hold that the Edavagai Act merely gave statutory recognition to what was prevailing in the Edavagai from ancient times, namely, that the Jenmies whether Brahmins or temples were also liable to pay melvaram to the Chief even though they had not alienated lands for money consideration. It is, however, not necessary to express a final opinion about it as those appeals can be decided on other grounds.
The contention raised on behalf of the Defendants in that case was that the Chief was not entitled to get any melvaram in respect of cherikal lands belonging to jenmies before the date of the Edavagai Act and that the right to ''melvaram'' was conferred on the Chief for the first time by the Act. It was in repelling this contention that the learned Judge made the above observations. The learned Judge wanted to make out that the imposition of ''melvaram'' under the Act would not go to show that ''melvaram'' was not originally payable to the Chief. There was no occasion for the learned Judge to go into the question whether the ''melvaram'' imposed under the statute was over and above the ''melvaram'' that was payable to the Chief before the date of the Edavagai Act. Therefore, these observations can be of no help to us in interpreting Section 5 Sub-section (2)(ix) of the Act-We have already seen that the ''melvaram'' which was originally payable by jenmies in respect of Cherikal lands is entirely different in character from the ''melvaram'' that was imposed u/s 5(2)(ix) of the Act.
The further question for consideration is whether ''melvaram'' which was originally payable to the Chief in respect of jenmam Cherikal lands is rent. Before going into that question it is necessary to consider a preliminary argument advanced on behalf of the Appellant. It was argued that the Plaintiff has no case in the plaint that the original ''melvaram'' payable in respect of the plaint properties is not of the nature of rent. What is stated in paragraph 7 of the plaint is this:
(Original in Malyalam)
The plaint schedule properties have no "Munkaram" because they do not belong to the 1st Defendant''s "Koikkal". The amounts covered by the udampadi of 1106 are included in the amount of "Munkaram". That amount is the Melwara Rajabhogam determined as per agreement between Defendants. Neither the 1st Defendant nor the Edavagai settlement officers have got the right to include the Melwara Rajabhogam given before, according to the rules framed under the Act to determine the melwaram. The Plaintiff''s Madapram have no knowledge or information about the liability under the agreement of 1106. To fix melvaram by including the said amount in the pattom is not valid by itself. According to law not more than k of the pattom can be levied as melvaram on the properties.
From this it is argued that the basis of the Plaintiff''s case is that the ''melvaram'' payable to the Chief under the udampadi, Ex.D, is not a, ''munkaram'' payable for the properties, that it is only ''melvara-rajabhogam'' payable by Defendant 2 to Defendant 1 and that it ought not to have been included in the settlement of ''melvaram'' under the Edavagai Act. It is not alleged in the plaint that if Defendant 1 was entitled to realise ''melvaram'' in respect of the plaint properties, before the date of the Edavagai Act such melvaram should not be taken into account in settling the dues payable by the jenmi in respect of the plaint properties as it is not rent payable for the properties. But the absence of a specific allegation in the plaint that the melvaram originally payable in respect of the plaint properties is not rent and that it could not, therefore, be taken into accuse in sending the assessment on the properties is no reason why we should not go into the question whether the settlement officer was justified in including such ''melvaram'' in the assessment payable for the properties.. In view of the fact that the prayer in the plaint is for a declaration that the Plaintiff is not liable to pay the amount covered by Ex.D and that the Settlement Officer went wrong in including that amount in the patta we are bound to go into the question whether the Plaintiff''s liability to pay that amount terminated with the passing of the Edavagai Act. Moreover, Defendant 1 was not in any way misled in his defence of the suit by reason of the omission on the part of the Plaintiff to put forward this specific plea in the plaint.
This is what Defendant 1 says in paragraph 20 of the written statement:
(Original in Malyalam)
The contentions that Melwaram claimed before will not be included in the term rent and that it should not have been included in the Patta are neither correct nor acceptable.
In the circumstances, it is necessary to go into the question whether the ''melvaram'' originally payable to the Chief comes within the category, of ''rent'' mentioned in Section 5(2)(ix) and whether the ''melvaram'' imposed under that Sub-section is in addition to the ''melvaram'' which the Chief, was entitled to realise before the date of the Act in respect of Cherikkal lands belonging to jenmies or whether the ''melvaram'' imposed is one in substitution of the original ''melvaram''. The answer to this question will depend upon the meaning to be given to the words over and above the rent otherwise payable''. That will again depend upon the meaning to be given to the word ''rent''. According to the Plaintiff the ''melvaram'' which was originally payable to the Chief in respect of Cherikal jenmam lands was not of the nature of rent while according to Defendant 1 it would come within the category of rent.
The Plaintiff''s case is that the ''melvaram'', originally payable to the Chief in respect of jenmom cherikal lands was of the nature of tax paid to the sovereign by the subject. In support of this contention the Plaintiff relies on the use of the word "rajabhogam'' in respect of the dues paid to the Chief as ''melvaram''. It is argued that the rajabhogam (sovereign''s share) paid to the Chief is a payment made in recognition of the overlordship of the Chief and not a payment made by the tenant to his landlord for the use of land belonging to the latter. It is pointed out that the judgments, Exts. V, X and E, show that what the Chief was entitled to get in respect of cherikal lands was rajabhogam or in other words, what the State was entitled to get in respect of cherikal lands belong to jenmies. It is further argued that there is no relationship of landlord and tenant between the Chief and the jenmies since the jenmies do not hold their jenmam lands under the Chief. It is not necessary to decide in this case whether the Poonjar Chief had originally sovereign power in respect of his principality. The decision of the Settlement Officer for Poonjar Boundary settlement contains the following observation relating to the status of the Poonjar Chief in para. 20 of the decision:
It is not necessary for the purpose of this enquiry to decide whether the Poonjar family ever had Sovereign rights. It is enough for my purpose to state that it is not possible that the Chief could have exercised any sovereign rights since the invasion of Thekkumkoor by the Travancore Maharaja. The Chief has, since his Edavagai became included within Travancore territory, always been merely a jenmi and nothing more. Of course, I use that word in the sense of one who owns jenmam lands of the kind mentioned in para. 46, Clause (2) of Mr. Rama Iyengar''s Memorandum, namely, lands which are entirely freehold and exempt from payment of any revenue to Government under any circumstances.
Apart from the question whether the ''melvaram'' paid to the Chief can strictly be called Rajabhogam, although that expression is used in Exts. V, X and E, what we have to consider in this case is the real nature of the dues. The word rajabhogam might have been1 used more as an honorific expression. We have seen that even in the case of Sirkar Cherikal lands what was paid to the State was known as ''Malavaram'' which means varam on account of hill cultivation. Varam is obviously rent. In the case of Cherikal lands belonging to jenmies the payment made to the State was called ''melvaram'' while that paid to the jenmi was called ''nilavaram''. It is this ''melvaram'' that was paid to the Chief in respect of jenmies'' Cherikal lands within the Edavagai. Even in the case of holders of ordinary Sirkar lands the share of the produce that was paid to the State was originally known as pattam (rent) arid the tenure was called panda-rapattam. The State was regarded as a jenmi and the holders of lands belonging to the State were regarded as tenants holding under the State.
The position of the holders of Cherikal lands also in relation to the State cannot be different. The ''malavaram'' or ''melvaram'' that was paid to the State in respect of such lands was also in the nature of rent although a standard different from that of ordinary pandarapattom lands was fixed in determining the amount of rent payable in respect of such lands since those lands were subjected only to fugitive cultivation. Although in the case of ordinary jenmam lands the jenmi cannot be said to be holding under the State an exception was made in the case of Cherikal lands belonging to jenmies. The practice from time immemorial which was recognised by the Full Bench in-36 Trav LR 174 (G), was that the State could claim a share of the produce from such lands also. The only difference between Sirkar Cherikal lands and Cherical lands belonging to jenmies was that in the latter case the State was entitled only to l/10th share of the produce while in the former it was entitled to 2/10th share. Therefore, so far as Cherikal lands are concerned, the jenmies cannot be said to be owners of freehold estates. In the circumstances, there is every reason to hold that the ''melvaram'' paid to the State in respect of jenmam Cherikal lands lying outside the Edavagai and that paid to the Chief for such lands lying within the Edavagai are of the nature of rent. We have already seen that in the Travancore State Manual Rajabhogam paid to the Chief in respect of jenmam cherikkal lands is referred to as a payment equivalent to ''quit rent''.
It is true that the word ''rent'' in its restricted sense means what is paid by a tenant to his landlord. But it has got a wider meaning also. In Wharton''s Law Lexicon rent is defined as:
a certain profit issuing yearly out of lands and tenements corporeal.
In Black''s Law Dictionary rent is defined as "certain profit issuing out of land". The Law Lexicon in British India" by Ramanatha Iyer contains various definitions of the word ''rent''. One such definition is "rent is a sum of money, or other consideration issuing out of lands or tenaments". The fact that the word ''rent'' is used in a wider sense also is hot disputed by the: learned District Judge. This is what the learned. Judge says in para. 12 of the judgment:
As paragraph 11 of Ex. E, judgment, will show, what the overlord got as rajabhogam or nilavaram was a share of the jenmi''s varam. So in the wider sense any income derived from the property can be called rent or varam.
What we have to see is whether the word ''rent'' is used in this wider sense in Section 5(2)(ix) or in the restricted sense as rent paid by a tenant to his landlord. For the reasons given below we take the view that the word ''rent is used in" the clause in its wider sense.
In the first place, the word is used as applicable to two classes of lands, namely, holdings provided in Clause (1) of Sub-section (2) and also to jenmam lands. If the idea of the Legislature was to restrict its application to holdings coming within the purview of Clause (1), namely holdings held on permanent or irredeemable titles, there was, nothing to prevent the Legislature from expressly saying so. The ''melvaram'' imposed under the clause is on both the classes of lands and it is provided that such imposition of ''melvaram'' is "over and above the rent'' otherwise payable". Such, being the case it is difficult to believe that when referring to "rent otherwise payable" the Legislature had in contemplation only one of the two classes of lands mentioned in the clause i.e.,. "holdings on permanent or irredeemable titles", and not to the other classes, i.e., jenmam lands; If the ''melvaram'' that was originally payable in respect of jenmam cherikal lands is capable of being regarded as rent in its wider sense the context in which the word ''rent'' is used in the clause goes to show that the word is used in that wider sense so as to include not only the rent payable in respect of holding coming within the purview of Clause (1) but also the ''melvaram'' payable in respect of jenmam Cherikal lands.
Again, if the idea of the Legislature was to retain only the rent payable in respect of lands coming within the purview of Clause (1) and not the ''melvaram'' payable in respect of jenmam lands the clause would have been so worded as to make the qualifying words "over and above the rent otherwise payable" applicable only to the first class of lands. On the other hand, what the Legislature has done is to place both classes of lands in the same category and to make the provision imposing the ''melvaram'' as also the qualifying words applicable to both the classes of lands. The rate of ''melvaram'' imposed is also to apply to both classes of lands alike, namely, 1/8th of the pattam assessable. Similarly, the provision that the total demand on the land for ''melvaram'' and rent together shall not exceed the amount of pattom is also made applicable to both classes of lands. In the circumstances, there is no reason to think that the qualifying words "over and above the rent otherwise payable" are meant to apply only to one class of lands and not to the other.
It has also to be noted that the words used are ''rent otherwise payable''. According to Chamber''s Dictionary the word ''otherwise'' means. ''in other way or manner'': ''by other causes'': ''in other respects''. The idea conveyed by the use of, the word ''otherwise'' is that if there was any rent payable for the two classes of lands mentioned in the clause in any other way or manner the liability to pay such rent is retained under the clause. The use of the word ''otherwise'' in the qualifying phrase denotes that there is some affinity between the ''melvaram'' imposed under the clause and the rent originally payable for the properties. It is assumed that ''melvaram'' imposed under the statute is also a kind of rent, and rent payable in any other manner is retained under the qualifying phrase. If ''melvaram'' imposed under the statute on jenmom lands can be regarded as belonging to the category of rent there is all the more reason to regard ''melvaram'' originally payable for jenmom cherikal lands as belonging to same category.
Then again, the words used in the clause are ''imposition of a melvaram''. The word ''imposition'' denotes that a new burden is created on the land. In any of the previous clauses of the section the word ''imposition'' is not used. In this clause the Legislature has used not only the word ''imposition'' but also the further qualifying words ''over and above the rent otherwise payable''. Obviously, the idea of the Legislature was to retain the existing burdens in respect of the two classes of lands mentioned in the section and to impose an additional assessment on them. If the idea of the Legislature was to impose an additional burden only on lands mentioned in Clause (1) and not on jenmom lands nothing was easier than making it clear by using appropriate words in the clause. On the other hand, the use of the word ''imposition'' denotes that the idea of the Legislature was to create a hew burden on the two classes of lands. The reason for the imposition of such a burden on both classes of lands is also clear. In the case of holdings coming within the purview of Clause (1) any alteration of the rent payable to the Chief before the date of the Act is prohibited under that clause. Similarly, in the case of melvaram payable to the Chief in respect of jenmom lands there is nothing in the Act permitting the enhancement of it during the period of the settlement was to be in force. It must be for this reason that in the case of these two classes of lands an additional assessment was imposed under Clause (ix). There is nothing in the Act to show that the Chief was to be deprived of any of the annual dues that he was getting in respect of the lands within the Edavagai before the date of the Act.
Clause 5, Sub-clause (2) deals with different kinds of holdings. If the legislature wanted to treat Kinds coming within the purview of Clause (1) and jenmom lands in a different manner there was nothing to prevent the two classes of lands being dealt with separately as in the case of other classes of holdings so as to make it clear that in the case of holdings held on permanent or irredeemable title the original rent is retained while in the case of jenmam lands the original melvaram is abolished and that in its place a new ''melvaram'' is imposed. That it was not the idea of the Legislature is clear from the wording of the clause. What the Legislature did was to create an additional assessment in respect of these two classes of lands and to give it the name ''melvaram''. It is this name that has created the difficulty so far as the interpretation of the clause is concerned. As we have already seen, the ''melvaram'' imposed under the statute has nothing in common with the ''melvaram'' that was originally payable to the Chief in respect of jenmom cherikal lands. The new assessment applies not only to such lands but also to holdings held on permanent or irredeemable titles. It is, therefore, clear that it is not a case of giving statutory recognition to the ''melvaram'' originally payable in respect of jenmom cherikal lands. The clause imposes a new assessment payable in respect of not only jenmomcherikal lands but also holdings held on permanent or irredeemable titles. It has also to be noted that the words used are ''imposition of a melvaram''. The use of the word ''a'' denotes that it is a new assessment that is imposed and not the substitution of an already existing assessment.
We, therefore, hold that the ''melvaram'' that was originally payable to the Chief in respect of the plaint properties is of the nature of rent and that the ''melvaram'' imposed u/s 5(2)(ix) of the Act is over and above the ''melvaram'' that was originally payable. The result is that the amount shown in the patta, Ex. G, is not liable to be reduced and that the Plaintiff is not entitled to the declaration asked for in the plaint.
It was argued for the Plaintiff-Respondent that in any case the Settlement Officer ought to have shown in the patta separately the original ''melvaram'' payable in respect of the properties and the ''melvaram'' imposed u/s 5(2)(ix). The reason why the Plaintiff wants to have these'' two items shown separately in the patta is that'' as between the Plaintiff and Defendant 2 it is'' Defendant 2 who is liable to the Chief for the ''melvaram'' payable under the udampady, Ex. D." There can be no objection to the two dues being shown separately in the patta. What Section 5(2)(ix) of the Act requires is that the rules shall provide for the imposition of the ''melvaram'' over and, above the rent otherwise payable. Therefore, it is only proper that it is shown in the patta what the ''melvaram'' that is imposed under the statute is and what the rent that is otherwise payable is. These amounts will be shown separately the patta.
In the result, the judgment and decree of the Court below are set aside and the suit is dismissed subject to the direction contained in para. 28 and the appeal is allowed with costs in both the Courts.