SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF GODAVARI Vs. SREE RAJAH VADREVU RANGANAYAK, AMMA, ZEMINDARANI OF VEGAYAM MAPETA ESTATE (DEAD)

JUDGEMENT

(1.) This is a suit brought by the holder of a permanently settled estate to recover water cess, alleged to have been illegally collected from her ryots from Fasli 1315 to Fasli 1323 (1905 to 913). As regards Fasli 1314, there was then in force an arrangement between Government and the Zemindars that the Zemindars should collect the water cess on behalf of Government from the ryots and pay it over to Government subject to a deduction of ten per cent. for collection. Pursuant to this arrangement, Government made the demand for Fasli 1314. In this oasis on the Zemindarini who paid it, and on 3rd July 1905 instituted Original Suit No. 23 of 1905 for recovery of the money so paid and a declaration that the levy was illegal. Her suit was dismissed by the Subordinate Judge but was ultimately decreed by this Court on 19th March 1914 in Appeal Suit No. 35 of 1908. No question was raised in that suit as to the Zemindarini s right to recover, if the cess had been wrongly levied. The arrangement for the collection of water-cess by the Zemindars having been determined, Government collected the cess for Fasli 1315 and following Faslis from the ryots direct, and the Zemindarini, after obtaining a decree in Appeal Suit No. 35 of 1908, instituted the present suit to recover back the water-cess levied from the ryots for Fasil 1315 and the following Faslis. The Subordinate Judge decreed the suit. The learned Judges, Abdur Rahim, and Oldfield, JJ., who beard the appeal, differed as to the extent to which the claim was barred, and the whole case has been re-argued before us on appeal from the prevailing judgment of Abdur Rahim, J.

(2.) Act VII of 1865 imposes a statutory water cess, for the use of water for irrigation, from a Government source, upon holders of permanently settled estates and other land-holder, but contains an exemption in favour of the former class to the extent to which they are entitled, by virtue of engagements with the Government, to irrigation free of separate charge. Land-holders were said to engage with the Government for the payment of land revenue, and it is well- settled that the Sannads granted to the holders of permanently settled estates are engagements within the meaning of the Act. It was decided in the plaintiff s appeal in the former suit that the facts of the present case brought it within the exemption, and it is not now questioned that the levy from the ryots of water cess for Fasli 1315 and the following Faslis was wrongful. Further, even if Government had been entitled to levy water-cess, the person directly liable was the Zemindarini and not the ryots as held in Kottilinga Settu Royar v. Sahasranama Aiyar 9 Ind. Cas. 643 : 34 M. 520 : (1911) 1 M.W.N. 267 9 M.L.T. 367 : 21 M.L.J. 662. Here, neither the land-holder nor the ryots were liable to pay the cess, and the ryots, by paying it, could not acquire any right of recourse against the land holder under the Revenue Recovery Act, or otherwise Their remedy was to sue the Government to recover back the money levied from them under duress as money had and received to their use, and such a suit would have been governed by the general Article 62 applicable, to this form of action, if the Legislature had not prescribed a special Article, Article 16 with a shorter period of limitation, for this particular class of suits.

(3.) Having regard to the fact that the plaintiff arranged with the ryots that the water-sets should be paid by them and deducted from their rent and that the plaintiff should be entitled to it if recovered back from Government, an arrangement which was embodied in the great majority of the Pattas and Muchil kas which were exchanged between the Zemindarini and the ryots for Faslis 1315 to 1318, it has been contended before us that these Muchilikas may be treated as transfers in writing by the ryots to the Zemindarini of the ryots actionable claims to recover back the money illegally levied from them.