State vs Ganapathi Valia Raja

Koshi, J.—These two appeals arise from the judgment & decree dated 13-4-1943 (31 Meenom 1118) of the District Court of Mavelikara in O. S. No. 97 of 1116. That suit was originally instituted before the Kottayarn District Court as O. S. No. 112 of 1097 but when a District Court was established at Mavelikara it was transferred to the new Court as the properties involved in the suit came within the territorial jurisdiction of that Court. The Raja of Idappalli (hereinafter referred to as the Plaintiff) brought the said suit for a declaration that the properties described in Schs. A and B annexed to the plaint formed part of his "Edavaga" or freehold tracts, that they were exempt from payment of land revenue to Government, and that the right to collect the tax of those properties from persons in possession thereof belonged to his Swaroopam. Reliefs ancillary or consequential thereto were also claimed in the plaint. The Government of Travancore represented by the Dewan of the State was impleaded as the first Defendant and there were besides as many as 213 other Defendants when the suit was first filed. The latter were said to be persons in possession as tenants under the Plaintiff''s Swaroopam. During the long course of years the suit was pending in the lower Court, four successive Rajas of Idappalli died and the present Plaintiff is the 5th person to come on the record as such. Pending suit several Defendants also died and their respective legal heirs were all duly imp leaded. The main, if not the sole, contesting Defendant was the Government of Travancore. The circumstances which led up to the institution of the suit are as follows:

Idappulli was a small State which became subject to Travancore in 1000 M. E. It is now, one of the Edavagas recognised in the Government accounts. The Chief pays a subsidy to Government for Police protection, but he has no civil or criminal jurisdiction. The whole of the land revenue in the Edavaga goes to the Chief. The properties in suit are Cherickal lands and during the Cherickal Settlement operations, though the proprietary interest of the Plaintiff over the properties in schedule A of the plaint was recognized by the Settlement authorities, 1951 Tra. Co. 30 they were registered only as Plaintiff''s jenmon lands and not as forming part of the Edavaga proper so as to exempt them from the incidence of Sirkar tax. In the Cherickal Settlement it was further decided that the B schedule properties did not belong to the Plaintiff at all. These decisions were made during 1083 and 1084. The Plaintiff preferred revision petitions against them to the Settlement Central Office, but all those petitions were dismissed and when twelve years had almost elapsed since their dismissal the Plaintiff instituted the suit giving rise to these appeals. The date of the dismissal of the revision petitions was 25-11-1085 and the suit was filed on 24-11-1097. Besides seeking a declaration that the right to collect tax in respect of the plaint properties belonged to the Plaintiff''s Swaroopam the Plaintiff sought to recover from the Government of Travanoore, the first Defendant the tax collected by them during the twelve years preceding the suit and also prayed for an injunction restraining them from collecting the tax of the said properties in future. According to the Plaintiff his Swaroopam has been collecting the tax and varam dues from Defendants 2 onwards and their predecessors in interest for the past several years; but after the Settlement decisions the first Defendant Sirkar started collecting tax from them (the tenants). The case put forward in the plaint was that as the suit properties formed part of Idappalli Edavaga the Sovereign right of the State did not extend to the collection of tax of those properties and that the decisions of the Cherickal Settlement Officers were all wrong.

The first Defendant Sirkar as also Defendants 32, 96 and 150 filed written statements, but during the course of the Buit the three latter named Defendants withdrew from contest, leaving the Government of Travanoore (hereinafter referred to as the Government) alone to defend the suit right up to the end. The Government contended inter alia that the decisions of the Cherickal Settlement Officers were correct and not liable to be called in question, that the Plaintiff had no right to collect the tax of the A schedule properties, that the Plaintiff had no interest whatever in the B schedule items and that the suit was barred by limitation.

The lower Court after an elaborate trial negative the plea of limitation and found the Plaintiff''s claim with respect to the A schedule properties to be true regarding certain items comprised therein. The proprietary interest over item 13 in the B schedule was also found to belong to the Plaintiff''s Swaroopam. Relief was granted to the Plaintiff to recover from the Government the tax they unauthorisedly collected from his tax free lands during the twelve years preceding the suit and the period covered by the pendency of the suit. The tax falling due after the date of the decree the Plaintiff was authorized to realise direct from persons in possession.

Of the two schedules of properties annexed to the plaint, A schedule comprised 25 items and B schedule 33 items. The Plaintiff''s action, therefore, failed in the lower Court for a largo part. For a proper appreciation of the scope of the two appeals before us it would be helpful to quote here the decrial portion of the learned Judge''s judgment. It runs thus:

In the result, the following decree is passed:

(a) The six lekkoms mentioned in Exhibit B and the Plaintiff''s share in Mukkoor Cherickal proper are declared to be the Desa, Ozhuvu lands of the Plaintiff''s Swaroopam.

(b) The Plaintiff''s right to collect the tax an3 other dues, from the above said properties is hereby declared.

(c) The annual tax due from these properties is found to be 400fanams 3 chnikrams 13 cash and 31/2 paras of paddy. The Plaintiff is allowed to recover the annual tax as found already, for a period of twelve years before date of the suit, with interest at the rate of 6% per annum such interest not exceeding half the principal, from the first Defendant the Sirkar.

(d) The Plaintiff is allowed to realise the above amount annually from the date of the suit, till the date of the decree, with interest at the above rate, the interest not exceeding half the principal, from the first Defendant.

(e) The amount due after the date of the decree, will be realised from the persons from whom the tax is due.

(f) The paddy will be valued at the nirak prevailing each year to the market.

(g) The Plaintiff is declared to be the owner of item 13 in the B schedule and of the Vallikkadu Cherickal as found already.

(h) The rest of the plaint claim is hereby disallowed.

(i) The first Defendant the Sirkar will get one-third of the costs from the Plaintiff who will suffer his own.

(j) Future interest and interest on costs 4%.

The Plaintiff has preferred A. S. 575 against that portion of the decree negativing his claim while the Government has preferred A. S. 726 challenging the correctness of the decree to the extent it upholds the Plaintiffs claims.

When the Plaintiff''s learned Counsel opened his arguments before us in A. S. 575 it appeared to us that the disposal by the learned Judge in the Court below of the question of limitation arising in the case was far from satisfactory and that in case decision on the point cannot be upheld no useful purpose would be served by hearing arguments on the merits of the appeals. Accordingly they were directed to confine their arguments in the first instance to the question of limitation and after hearing them on that question we reserved judgment. They were told that in case we uphold the lower Court''s decision that the suit is nob statute barred the appeals will be reposted for further hearing. We have given the arguments raised at the Bar on the point of limitation arising in the case our best attention & have unhesitatingly come to the conclusion that the pltf.''s suit must fail as it was instituted long out of time.

The scope of the pltf.''s suit & the nature of the reliefs claimed have already been put out in the preceding paragraphs. On the face of it the primary relief claimed in the plaint is a declaration as to the pltf.''s title to the immov able properties involved in the suit. During the course of the Settlement Proceedings the Govt. had refused to recognise that the pltf. was entitled to collect the tax of the A schedule properties or that he was entitled to enjoy them tax free. Regarding the B schedule properties the position was that the Settlement decisions had held that the pltf. had no manner of right or title to them. Though no relief was expressly claimed to set aside those decisions or to declare them to be wrong the primary relief as stated, above was to have the pltf.''s title declared in the suit which according to him was omitted to be recognised in the Settlement Proceedings. Other reliefs claimed in the plaint such as recovery from the Govt, of the tax collected before or after the suit & the perpetual injunction preventing the Govt, from realising the same in future were reliefs claimed as ancillary to or consequential upon the grant of the main relief. The contention the deft, raised with reference to limitation was that a suit to declare a pltf.''s title to immovable property was governed by the six years'' rule of limitation provided by the residuary article in the First Division of Sch. I, Limitation Act (Article 109, Travancore Limitation Act corresponding to Article 120 of the Indian Act) & that the present suit instituted for such a declaration on the eve of the expiration of twelve years after his right to sue accrued according to the pltf.''s own showing was clearly barred by time. The plaint expressly stated that the cause of action for the suit arose on 25-11-1085 when the Settlement Central Office dismissed the revision petitions filed against the decisions of the Settlement Officers. According to the pltf. the article of the Limitation Act which governed the case was Article 132 (Travancore) which corresponded to Article 144, Limitation Act. The said article relates to suits for possession of immovable property or any interest therein not otherwise specially provided for in the first Schedule & it provides for such suits a period of twelve years from the time the possession of the deft, becomes adverse to the pltf. The question for determination in these appeals is which of these contentions should prevail. The learned Judge in the Court below gave his decision on the point in favour of the pltf. in one short para, of his judgment which may be conveniently extracted here:

Issue 16:-In the written statement of deft. 1 it is contended, that the suit brought six years after the Setlement decisions, is barred by limitation. The pltf. bases his cause of action of the decisions, in the revision petitions presented by him against the decisions of the Cherickal Officer & the date when the revision petitions were rejected, is said to be the 26th Mithunam 1085. This suit was instituted on the 24th Mithunam 1097 & according to the pltf. he has got twelve years from the date when the revision petitions were rejected, for bringing this suit. The first question that has to be decided there, fore is whether this suit is governed by the six year rule under Article 109, Limitation Act, or the twelve year rule under Article 132, Limitation Act. Article 132 deals with suits for possession of immovable property or any interest therein & it is laid down, that such suits have to be Brought within twelve years from the date when the possession of the deft become adverse to the pltf. There is difference between the wording in Article 130 & that in Article 132. Article 130 deals with possession of immovable property, when the pltf. has been dispossessed or has been discontinued the possession. This suit relates to the right so levy tax & it is contended for the pltf. that Article 132 could not apply since there is no prayer for possession of immovable property. But it has to be noted that this article deals also with any interest in immovable property as well. The Privy Council Ruling referred to in para. 45 supra Futtehsangji Jagwant Sangji v. Kallianraiji Hakoomutraiji 21 W. R. 178 lays down that the right to receive an annual payment is an interest in immovable property. In Chitaley''s Limitation Act Vol. III what would constitute an interest in immovable priperty, has be defined at pp. 2015 & 2010 (1939 Edn.) The right to collect rent is said to be an interest in immovable property. Similarly in Inisingh Norangoe v.S. Veeramany Iyen 20 T. L. R. 62, it has been held that the light to receive the profits of immovable property is an interest in immovable property. The principle laid down in Ganapathy lyen v. Venkitanarayana Iyen 10 T. L. R. 56 shows that suits like the present one are governed by the twelve years rule. The right of the pltf. was invaded by the Sirkar, when the Cherickal decisions authorised the same to collect the dues from the properties. The pltf s. right was obstructed ft the Sirkar began to collect the tax on the strength of the Cherickal desisions. I would therefore hold that Article 132, Limitation Act, applies to this suit, & that it is not barred by limitation, since it was brought within twelve years of the final decision in the Cherickal case.

We are afraid the learned Judge has not come into close grip with the real questions for decision. A suit for possession under Articles 130 or 132 (Indian Articles 142 & 144) assumes that deft, is in possession & that pltf. seeks to eject him. In such a suit there mast be a prayer, express or implied, for dispossession of some one from the property or from the interest in it which the suit claims. See Rustomji on Limitation (5th Edn. 1939) vol. II, p. 1319 & U. N. Mitra''s Law of Limitation & Prescription, vol II (7th Edn. 1950) p. 934. Among the decisions relied upon by the leared commentators special mention may be made of the decision in Francis Legge v. Rambaran Singh 20 ALL. 35. That case reviews previous case-law. on the subject & lays down the principle enunciated above in clear terms. Admittedly there is no prayer in the present suit to recover possession of any immovable property. Recovery of tax claimed from the Govt, which according to the pltf. the former wrongfully collected from the tenants in possession is, if anything, a claim which sounds in damages. A suit for damages is not concerned in any manner with a right, title or interest in immovable property. see Muruga Mudaliar v. Subba Reddiar AIR 1951 Mad 12 F. B.), It is a claim personally against the wrong doer & a suit seeking to enforce such a claim cannot obviously amount to a suit to recover any interest in immovable property. The cause of action for it arises out of the alleged tortuous conduct on the part of the deft. The decisions referred to by the learned Judge in the Court below in the extract quoted above cannot be of any avail to the pltf. with respect to the claim against the Govt. The case in 1 Indian Appeals 34 only states that the hereditary right to collect certain dues from an inamdar out of the rents of a village is an interest in immovable property within the meaning of the Limitation Act XIV [14] of 1869 & that claim for arrears of it for upwards of six years is not barred under Clause 16, Section 1 of that Act. The decision in 20 T. L. R. 62 is to the effect that the right to receive the profits of immovable property is an interest in immovable property. The third case cited namely 10 T. L. R. 56 relates to a case where- the Court hold that a suit to remove obstruction caused to a window on the pltf''s wall instituted within twelve years of the obstruction is not barred by limitation as the suit relates to an injury to immovable property. In the present suit among the reliefs claimed in the plaint a prayer is made in very vague & indefinite language that a decree may be given to the pltf. for the tax for the twelve years preceding the suit also against such other defta. than the Govt, as are found liable by the Court. Regarding this claim the first two cases cited in the above extract have some relevancy, but that aspect will presently be adverted to. Suffice it to say for the present that none of the cases cited have any bearing at all on the question of limitation as against the Govt.

If the pltf. succeeds to get a declaration in his favor regarding the title set up by him its effect would be to render the decisions of the Settlement authorities void & ineffective & to force the hands of the Govt, to correct the entries. In the pithy words of Sir Charles Sargent C. J. a right to be placed on the revenue registers is not an interest in immovable property. See Bhikaji Baji v. Panda 19 Bom. 43. That case related to a suit to obtain a declaration of the pltf a right to have certain lands registered in their names in the revenue registers.

It is settled law that suits declaratory in their nature are governed by Article 120, Indian Limitation Act. Sea Rustomji on Limitation (5th Edn. 1938) vol. II, pp. 1120, 1122 & U.N. Mitra''a Law of Limitation & Prescription (7th Edn. 1949) vol. I,P. 683. Decided cases on the topic are numerous & the decision in 20 ALL, 35 already referred to is one of the early authoritative pronouncements on the question. The Privy Council had to consider the point more than once & we shall now refer to some of their Lordships'' decisions on the point.

The first Privy Council decision we refer to is that in Ambu Nair v. Secretary of State AIR 1924 P. C. 150. In that case in 1903 the Govt, officials marked off the lands in suit & issued to the pltf. as the karnavan of his tarwad a rough pattah showing the lands to which the Govt, admitted his right to obtain grant subject to the usual conditions. The plff. preferred objections to the exclusion from the rough pattah of the lands in suit. His objections were definitely rejected in 1905. The suit giving rise to the appeal before their Lordships to set aside that order & to obtain a declaration of his right was instituted in 1918. Their Lordships held that Article 120 of Sch. 1 of the Limitation Act, IX [9] of 1908, applied to the case & that the suit instituted beyond six years of the rejection of the objections was clearly out of time. Their Lordships said that no period of limitation is specifically provided elsewhere for the assertion of a claim of the kind before them & that therefore the residuary Article 120 applied. In our view, it is impossible Co distinguish the present suit from this case.

In Mt. Jagoo Bai v. Utsava Lai AIR 1929 P. C. 166, it was held that a suit for declaration of plffs'' right to melikana (which, for purposes of the suit, was treated as Immovable property), fell within Article 120, Indian Limitation Act. That decision is of special importance to the case in hand where the declaration sought for is that the plff. is entitled to collect the land revenue assessment of the properties in suit.

Again in another case reported in the same volume, Midnapur Zamindari Co. V. Secretary of State AIR 1929 P. C. 286, their Lordships held that the period of limitation applicable to a suit for a declaration that the entry in the record of rights that a person is tenure-holder is erroneous & that he should be declared a raiyat is that provided by Article 120. Yet another Privy council decision which lays down that neither Article 142 or 144 applied to a suit for a declaration of title to immovable property & that the applicatory provision for such a suit is Article 120 is the case reported in Jagatjit Singh v. Partab Bahadur AIR 1942 P. C. 47. There the question arose in a suit for declaration of title to property in the possession of a receiver in proceedings u/s 145, Code of Criminal Procedure & not with respect to any entry in the revenue records as happens to be the case with most of the decisions dealing with this subject.

In the light of the uniform course of decisions of the Privy Council it will be mere supererogation to proceed to cite other decisions laying down the same rule. However in addition to the Allahabad case & the Bombay decisions cited earlier we shall make passing reference to a few more decisions of the Indian High Courts. Among the Madras cases mention may be made of Angati Parambath Kanniyalli Ratha Vs. Thekke Illath Neelakhanohan alias Padmanabhan Namboodry, & Mahaboob Sir Fajvantu Sri Rajah Parthasarathi Appa Rao and Another Vs. Secy. of State and Others, . The former arose from a suit for a declaration by the plff. that he is the jenmi of the plaint land. The revenue authorities had refused to change the registry into his name. The plff. made that application in 1917 & he followed it up by a suit immediately the refusal was made. His father had made a similar application to the revenue authorities in 1903 & the Court held that the suit for a declaration of title instituted six years after the refusal in 1903 was statute barred. In the latter case it was held that a suit by a zemindar against Govt, for a declaration that an enfranchisement by Govt, is not valid & binding on the zemindar is governed by Article 120. The decisions of the Calcutta, Lahore & Patna High Courts are also to the same effect. See Sree Sree Goddess Pitha Kali Matha Thakurani Vs. Surendra Nath Tagore and Another, Ahmed Hossein Bepari and Others Vs. Digendra Narain Singha Roy and Others, , Midnapore Zamindary Co. Ltd. Vs. Secretary of State, and Sudhakar Misra and Another Vs. Nilkantha Das and Others,

In Raman Kelu Menon v. Diwan of Travancore 7 T. L. J. 169, the Travancore High Court held that a suit for declaration of plffs. jenmom right to & possession of the plaint property & for cancellation of revenue sale & registry of it as Puduval, the period of limitation, applicable is six years as provided under Article 109, Travancore Limitation Act. It was further held that the suit was in substance a suit for declaration as to title to & possession of land & that the other prayers were mere surplusage. On the point of limitation arising here the Cochin High Court uniformly took the above view that the six years'' rule applied. See Kunjikrishna Raja v. Sirkar 7 Ker L. R. 265, Kittunni Valia Mannadiar v. Diwan of Cochin 10 Ker L. R. 139 F. B.) and Manickan Keralan Thachudaya Kaimal v. Diwan of Cochin 18 Ker L. R. 376.

In some of the above cases a controversy has centered round the third column of the Article that the period begins to run when the right to sue accrues. It is a moot point whether time begins to run from the time of the first invasion of the right or whether every fresh invasion would give rise to a fresh cause of action. We do not, however, have to tackle the question in this case inasmuch as the plff. has averred in the plaint that the cause of action arose on 25-11-1085 when the Settlement Central Office dismissed his revision petitions. Six years from that date had long elapsed when the suit was instituted on 24-11-97. It is, therefore, unnecessary to consider here whether the cause of action arose earlier when adverse entries were made in the Settlement registers or when pursuant to these entries tax was first levied from the tenants. A, suit for declaration as to the plffs title was! clearly barred when the suit was brought. Other reliefs claimed in the suit such as recovery from the Govt, the tax collected by them or as injunction restraining the Govt, from collecting the same in future have certainly no longer period of limitation than a suit for declaration of plffs. title. Besides, those reliefs were claimed merely as ancillary to or consequential upon the main relief of declaration & when that fails as time, barred the entire basis for further reliefs his appears.

Reference was made in an earlier portion of this judgment that relief by way of recovery of tax for the twelve years preceding the suit was claimed in the plaint also against such other defts. than Govt, as may be found liable by the Court. That may perhaps be a claim to recover an interest in immovable property. But the plaint discloses no ground whatever to make them liable to the plff. for the tax they had already paid once to the Govt. This claim formed the subject of issue No. 20 & the lower Court disposed the same in the following terms in para 53 of its judgment:

Issue 20: It is contended for Defendant 1 that the plff. has no cause of action against the Sirkar for the tax collected from the various tenants, that there is no privity of contract between the plff. & deft. 1 that the plff- could not collect the tax, from the tenants direct & that therefore, the suit is not sustainable. It is admitted, that deft. 1 was collecting the tax from the various tenants as per the Settlement decisions. The tenants have to pay tax either to deft. 1 or to the plff. Admittedly they have paid the tax to the Sirkar. Therefore, the plft. could recover the tax already collected from deft. 1, Multiplicity of suits has to be avoided as far as possible. It would be more proper to direct deft. I to pay the tax already collected than to direct the tenants, to pay the tax over again, to the pl9. & then ask the tenants to proceed against the Sirkar. I therefore find that the plff. could recover the amount already collected by deft. 1 from deft. 1.

The learned Judge refused to grant any relief to the plff. as against defts. 2 onwards & the memo. of appeal before us does nob contain any ground attacking this decision except the general ground that all the issues should have been found in favour of the plff. & the suit decreed in terms of the plaint. To all intents & purposes the suit was one to vindicate the plff''s. rights as against the Govt. Furthermore, there is not even a suggestion in the plaint, much less in the memorandum of appeal, that the relief claimed against the tenants, the plff. was entitle! to get independently of the declaration as to title claimed against the Govt. We cannot in the circumstances hold that the plff. has claimed any relief in his appeal against any one deft, other than the Govt.

In the foregoing discussion on the question of limitation we have held that the suit was barred against the Govt, when it was instituted. In view thereof no purpose is served by hearing further arguments on these appeals & in disposing of them on the ground that the suit was barred by limitation we dismiss the plff''s. appeal A. S. No. 575 & allow the other appeal preferred by the Govt. A. S. 726. The result is the suit it self will stand dismissed. The Govt, will get their costs in both the Courts from the plff. who will bear his own throughout.

Kunhi Raman, C.J.

I concur.

Subramania Ayer, J.

I also concur.