S.M. Narayana Aiyangar vs S.P.R.M. Subramanian Chettiar and Others

V. Ramesam, J.—This batch of second appeals arises out of a number of suits for rent for different faslis u/s 77 of the Estates Land Act.

There are two holdings under the tenants one holding under patta No. 38 and another holding under patta No. 54. Rent is claimed for portions of

the suit holdings at a rate higher than the dry rate on the ground that there are cocoanut gardens in these holdings. In a former litigation between the

same parties which culminated in S.A. Nos. 433, etc., of 1924, the same claim was made. The defendant ryot resisted the claim at the higher rate

on the ground that a cocoanut plantation was an improvement within the meaning of Section 3(4)(f) of the Estates Land Act and that he is not liable

to pay the higher rate and is liable to pay only the dry rate. It was held by Devadoss and Wallace, JJ., that the planting of a cocoanut garden was

not an improvement under the Act and that the plaintiff was entitled to the enhanced rate. The same holdings are the subject-matter of the present

suits.

It is conceded by the appellant that so far as patta No. 38 is concerned, the cocoanut plantation now existing is merely the old plantation, but as

to patta No. 54 it is said that at the time of the former litigation only a portion, namely, 7 karukams, was planted with cocoanut plants but now a

larger area is sought to be charged at the higher rate. I will refer to this question of additional area later on. Leaving this aside, two questions arise

in the present second appeals. The first is whether cocoanuts are fruits and a cocoanut plantation can be regarded as a fruit garden within the

meaning of Section 3(4)(f) of the Estates Land Act. So stated, this question is undoubtedly a question of law, namely, the construction of an Act,

the question being whether a particular term in the Act can be so interpreted or defined as to cover a particular class of trees.

Now it may be said that the fruit of the cocoanut tree is not a fruit in one sense of the term but is a nut and apparently this was the view that

prevailed with Devadoss and Wallace, JJ., in Vellayappa Chetti v. Subramaniam Chettiar (1926) 51 M.L.J. : ILR 50 Mad. 482. But this case was

considered in Sri Raja Bommadevara Chayadevamma Bahadur Zamindarini Garu Vs. Sana Venkataswamy and Others, by another Bench of this

Court (Reilly and Ananthakrishna Aiyar, JJ.) and was dissented from. Both the learned Judges have dealt with the matter at some length and have

given good reasons for differing from the former decision and for holding that cocoanut trees are fruit trees. Even Devadoss, J., from whose

judgment the latter case came up in Letters Patent Appeal held that cocoanut trees are fruit trees but he does not refer to the judgment in the other

case reported in Vellayappa Chetti v. Subramaniam Chettiar (1926) 51 M.L.J. : ILR 50 Mad. 482. It is unnecessary to repeat the reasons given

by Reilly and Ananthakrishna Aiyar, JJ. I will only add the following considerations. In the Century Dictionary under ''Cocoanut'' we have ''the nut

or fruit of the cocoanut tree.'' And then under ''double cocoanut'' we have ""the fruit of a remarkable palm.... The fruit often weighs 40 or 50 lbs....

Under ''sea cocoanut'' we have ''the fruit of a species of palm.'' In Murray''s English Dictionary under ''double cocoanut'' we have got practically

the same sentence repeated. In common parlance the cocoanut is always referred to as a fruit before the fibre is removed.

I therefore hold that cocoanuts are fruits and that cocoanut trees are fruit trees and a cocoanut plantation is a fruit garden within the meaning of

Section 3(4)(f) of the Estates Land Act. It follows that the tenant who has effected improvements in these cases ought not to be liable for any

additional rent beyond the dry rate.

The next question is how far the defendant appellant is affected by the rule of res judicata. As already mentioned, the former decision, which, in

the light of our present decision, must be held to be erroneous, was between the same parties and in respect of the same holdings. Mr. Rajah

Aiyar, the learned Advocate for the appellant, contends that an erroneous decision of law should not be held to be res judicata in a later litigation

between the same parties relating to a different year and that the former decision should be confined to the year in respect of which the former

litigation arose.

The question how far an erroneous decision on a matter of law on the terms of a tenancy would be res judicata has been considered in three

decisions of this Court. The first one is Bommidi Bayyan Naidu Vs. Bommidi Suryanarayana, minor by guardian Bommidi Ammanna, . It was there

held that a former decision as to the extent of a holding in a suit between a landlord and tenant relating to the validity of patta under the Rent

Recovery Act would be res judicata in respect of later years on the ground that it decides a general question not peculiar or special for that

particular year. So far as this matter is concerned, the Estates Land Act is similar to the Rent Recovery Act and if any question of general principle

is settled in one litigation in respect of one year as regards the terms of patta, that would bind the parties for the future years also until new

circumstances intervene. The next decision of this Court that I would refer to is Sree Rajah Bommadevara Venkata Narasimha Naidu v. Andavolu

Venkataratnam (1916) 32 M.L.J. 63. There the suits related to the recovery of a cess claimed by a Zamindar from inamdars. The cess was

payable annually. It was held that in cases where in a prior litigation the cess was held to be payable, that decision constitutes res judicata in

litigation with respect to later years. The conclusion of the learned judges is this expressed:

Where a decision on a point of law, '' whether it be on the construction of a document or of a statute or on common law or on customary law,

settles a question that arises directly out of conflicting views as to the rights of the parties, it is res judicata''.

The reason of the judgment may be expressed thus, namely, that the former litigation settles the terms on which the two parties are related to

each other in the matter of the holdings provided the decision and the terms are confined to the actual object matter of the suit. The earlier

decisions of this High Court in Parthasarathi v. Chinna Krishnan (1882) ILR 5 Mad. 304, Mangalathammal v. Narayanaswami Aiyar (1907) 17

M.L.J. 250 : ILR 30 Mad. 461 and Natesa Chetti v. Vengu Nachiar (1909) 20 M.L.J. 20 : ILR 33 Mad. 102 were dissented from. In Maharajah

of Jeypore v. Ramamurthy (1933) 65 M.L.J. 681 the same view was followed. An attempt to reopen the decision in Sree Rajah Bommadevara

Venkata Narasimha Naidu v. Andavolu Venkataratnam (1916) 32 M.L.J. 63 based on the decision of the Privy Council in Broken Hill

Proprietary Co., Ltd. v. Broken Hill Municipal Council (1926) A.C. 94 was made but failed. That attempt is again repeated before us, Mr. Rajah

Aiyar contending that the decision in Sree Rajah Bommadevara Venkata Narasimha Naidu v. Andavolu Venkataratnam (1916) 32 M.L.J. 63 and

Maharajah of Jeypore v. Ramamurthy (1933) 65 M.L.J. 68 should be reconsidered in the light of the Privy Council decision just mentioned. In the

same volume we have got Hoystead v. Commissioner of Taxation (1926) A.C. 155 another decision of the Privy Council. The earlier decision

relates to the valuation of land for rating purposes. The second decision relates to land-tax assessment and it was held that an admission on a

fundamental matter in a prior case and a decision stands on the same footing, estops a different contention in a later case. At first sight it looks as if

these two decisions are in conflict. Possibly the earlier decision may be explained on the footing that the valuation of land for purposes of rating for

each year is so peculiar to that year and has to be made on considerations confined to that year and should be so uninfluenced by considerations

that prevailed in prior years that no question should be considered as a general principle and what happened in one year-whether a matter of

principle or a matter of detail-should not be used in another year and therefore the decision of one year is not res judicata for another year. If that

decision is not to be explained in that way and should not be regarded as inconsistent with the decision in Hoystead v. Commissioner of Taxation

(1926) A.C. 155. I prefer to follow the latter decision. This is practically the view accepted in Sri Sri Sri Ramachandra Deo, Maharaja of Jeypore

(dead) and Others Vs. Sutapalli Ramamurthy and Others, as to these two cases. These cases have also been considered in Sankaralinga Nadar

and Brothers v. The Commissioner of Income Tax, Madras (1929) 58 M.L.J. 260 : ILR 53 Mad. 420 (F.B.) and a similar view was taken there

of the first case.

It is said that in cases under the Bengal Tenancy Act it has been held that a decision between landlord and tenant as to the rate of rent in a prior

year does not constitute res judicata in later years when the question comes up. But even there it has been held that where the earlier decision

decides a matter of general principle, it would be res judicata in later years, vide Gnanada v. Nalini Bala Debi (1925) 43 C.L.J. 146 and Sreemati

Ayetonnessa Bibi v. Amjad Ali (1928) 48 C.L.J. 184. It is true that in Calcutta a view prevailed at one time similar to the decision in

Mangalathammal v. Narayanaswami Aiyar (1907) 17 M.L.J. 250 : ILR 30 Mad. 461, Alimunnissa Chowdhurani v. Shama Charon Roy I.L.R.

(1905) 32 Cal. 749 but this decision has since been overruled by that Court in Tarini Charan Battacharya v. Kedar Nath Haldar (1928) ILR 56

Cal. 723 (F.B.).

It is then argued by Mr. Rajah Aiyar relying on a passage in this last judgment that some exception should be made to the principle of res

judicata in matters of jurisdiction, limitation or procedure on grounds of public policy. It is difficult to conceive how the question of res judicata can

arise for the same object matter in later years with reference to questions of jurisdiction, limitation or procedure. But here we are not concerned

with any such question. It is suggested that the rules of the Estates Land Act are based on public policy and some exception should be made in

such matters. We are not referred to any principle or authority to support such a proposition and I am unable to accept this contention. But as

already observed, the principle of res judicata should be confined only to matters which actually existed at the time of the former decision. If there

are new areas in patta No. 54 which were not planted with cocoanut at the time of the former suit and in respect of which no claim for enhanced

rate of rent was or could be made in the former suit, the matter is not res judicata in the present suit in respect of such areas. The respondent

contended that even in respect of such areas the question of general principle is settled between the parties. There can be no res judicata laying

down a wrong rule of law between parties for future guidance also. The decision must be confined to the matter to which it has been applied at the

time of the former decision. Areas and trees to which it was not applied then will be governed by the correct principle of law. It is said by the

respondent that this matter was not raised earlier. The appellant claims that he did raise it. However the consideration of this question and how far

the matter may be allowed to be raised are points which we leave to the learned judge who would dispose of the second appeal in the light of the

above observations, and if, in his discretion, he thinks fit, he can allow those points to be raised in second appeal. It is for him and not for the Full

Bench to consider this question.

With these observations these cases are remitted to the learned judge for disposal.

Horace Owen Compton Beasley, Kt., C.J.

I agree.

King, J.

I agree.

JUDGMENT

Varadachariar, J.

Now that the Full Bench have held that the decision in P.M.A. Vellayappa Chetti and Others Vs. Subramaniam Chettiar and Others, will

operate as res judicata in respect of the areas then in question, it follows that S.A. Nos. 1148, 1150 and 1181 of 1932 fail and must be dismissed

with costs in S.A. No. 1148 of 1932 only.

S.A. Nos. 1149 and 1151 arising respectively from S.S. Nos. 2627 of 1923 and 3861 of 1926 relate to lands covered by patta No. 54. Even

in respect of these lands, the former judgment will operate as res judicata except to the extent to which it can be said that in these second appeals

which relate to later faslis the claim for rent is made in respect of lands brought under cocoanut cultivation after the date of the previous suits

relating to these pattas. Mr. Rajah Aiyar states that in the former suits the claim at Rs. 2 per karukam was made only in respect of 7 karukams

whereas in the present suits that rate is claimed in respect of 9 karukams and likewise the Rs. 5 rate in respect of the later faslis.

A distinction is sought to be suggested between the claim at Rs. 2 rate and the claim at Rs. 5 rate and it is argued that the rule of res judicata

ought not to be applied at any rate to the extent of upholding the Rs. 5 rate claim. I am not able to agree with this contention. The decision of the

Full Bench implies that the allowance of the Rs. 2 claim was on the footing that the contention that the tenant was not liable to pay in respect of

improvements effected by him was not available to him by reason of the rule of res judicata. Once that contention is put aside, the contract alleged

by the landlord is that up to a particular stage he is entitled to rent at Rs. 2 per karukam and at later stages he is entitled to rent at Rs. 5 per

karukam. I therefore do not see any justification for saying that though on the basis of Rs. 2 it is res judicata the claim is for the same land at later

stages at the rate of Rs. 5 will not be res judicata.

Mr. Rajah Aiyar further suggests that the written statement in S.S. Nos. 2627 of 1923 and 3861 of 1926 raised a question of fact that the

trees have not in fact reached the stage when even on the basis of the agreement as alleged by the plaintiff the rent at Rs. 2 or Rs. 5 could be

claimed at all. I see nothing of this contention put forward either before the Deputy Collector or before the lower appellate court. I am not satisfied

that any evidence which the defendant wanted to offer to substantiate this contention was shut out. I am therefore unable to allow that point to be

raised at this stage.

A further point was sought to be raised by Mr. Rajah Aiyar on the construction of the contract relied on by the plaintiff, namely, that the mere

fact that one tree or some trees begin to put forth spathe will not justify the landlord in claiming the higher rate of rent in respect of the whole area

under cocoanut cultivation. This point too does not appear to have been raised in any of the Courts below. It cannot be said to be really a matter

of law or construction which can be dealt with in second appeal. It will really have to be considered in the light of the course of conduct of the

parties or usage in the neighbourhood and I must therefore disallow it also, as a point not raised up to this stage and which cannot be disposed of

without further evidence.

Mr. Muthusami Aiyar on behalf of the respondents is unable to state definitely whether Mr. Rajah Aiyar''s contention that in the old suits the

claim was made and decreed only in respect of 7 karukams, whereas in the present suit the claim was made in respect of 9 karukams, is borne out

by the record or not. But having regard to the fact that the rule of res judicata has got to be applied practically against the spirit of the provision

made in the statute and seeing that the rule of, decision in a matter of this kind has been the subject of so many conflicting pronouncements, I am

not prepared to disallow this point raised by Mr. Rajah Aiyar, which, after all, can be determined from the records of the Court or at any rate from

the relevant pattas. The District Judge is accordingly requested to make a report, after giving an opportunity to both the parties to place all relevant

materials before him, whether the claim in S.S. Nos. 2627 of 1923 and 3861 of 1926 in so far as it relates to cocoanut plantation, is in respect of

any area in excess of that which formed the subject-matter of S.S. Nos. 2582 of 1918 and 1638 of 1920, and if so, what is the extent of the

excess area. The report to be sent before the 15th April, 1935.