GODAVARMA VALIA RAJA Vs. BHOOTHI SWAMIYAR

JUDGEMENT

(1.) THE first defendant 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 III 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 the first defendant, 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 1/8th of the pattom assessable on the lands. THE pattom assessed for the plaint properties was 94976 fanams 2 ch. 11 cash. 1/8th of this, namely, 11872 fanams 5 cash, was fixed as the melvaram imposed under section 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 the first defendant 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 melvaram 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 the first defendant 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 the first defendant 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 the first defendant against the plaintiff Devaswom. Ex. 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, the second defendant in this case, Mr. Krishna Iyer, took a lease of the properties from the plaintiff Devaswom with a term of 101 years. Ex. 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 the first defendant. THE persons in actual enjoyment of the properties were also impleaded as defendants in the suit. THE first defendant in that case was the Poonjar Chief. After his abdication the 96th defendant was impleaded in his place. That suit was compromised between mr. Krishna Iyer (the second plaintiff) and the 96th defendant. Ex. 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. Ex. B is the compromise petition filed in the case by the plaintiffs and the second defendant, 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. Ex. C is the compromise petition filed by the plaintiffs and the third defendant in the case, Mundakkayam Valley rubber Co. Ltd. , in respect of the properties in the possession of that company. Ex. 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 and 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 T. L. R. 681. 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 1/8th 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 the first defendant Koikal, that neither the compromise, Ex. A, nor the udampady, Ex. D, is binding on the plaintiff and that in any case the first defendant is not entitled to get as melvarom anything over and above the melvarom imposed under section 5 (2) (ix) of the Act, namely,1/8th of the assessable pattom.

(2.) THE first defendant contended that besides the melvarom imposed under section 5 (2) (ix) of the Act the Koikal was entitled to get from the plaintiff Devaswom the melvarom which the Devaswom was liable to pay before the date of the Act, that also should be included in the assessment for the properties and that the suit was barred by limitation. According to the first defendant 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 Art. 11 of the Travancore Limitation Act, corresponding to Art. 14 of the Indian Act. THE suit was filed only on 31-1-1118.

(3.) THE question of limitation may be considered first. As already stated, the appellant's case is that the suit comes under Art. 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. Ex. 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 Art. 109 corresponding to Art. 120 of the Indian Act and not Art. 11. Art. 11 reads thus: "to set aside any act or order of an officer of government One year [from] the in his official capacity, not herein otherwise express by date of the act or provided for order. " Art. 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 the first defendant 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 Art. 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: Tonly 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 melvarom would be assessed on those properties according to the provisions of section 5 (2) (ix) of the edavagai Act. Ex. 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.