SRI RAJA RAVU VENKATA KUMARA MAHIPATHI SURYA RAO BAHADUR GARU Vs. SIR RAJA RAVU SUBBAYAMMA ROW BAHADUR GARU

JUDGEMENT

(1.) This execution appeal relates to the mesne profits of certain lands for which the plaintiff obtained a decree against the defendant. While the litigation for the possession of lands was going on the defendant s estate was managed by the Court of Wards, the defendant being then a minor. The dispute, relates to the mesne profits of Faslis 1306 to 1315 inclusive. The appellant is the defendant and the plaintiff has put in a memorandum of objections in which she impeaches the correctness of a portion of the order of the lower court.

(2.) The appeal relates to three points. The first of these raises the question whether the defendant is entitled to deduct the water-tax paid by him to Government while he was in possession, in calculating mesne profits due to the plaintiff. There is no doubt that ordinarily in calculating mesne profits public taxes paid by the person liable would be deducted, but in this case the defendant was entitled to recoup himself by collecting the tax from the ryots in actual cultivation of the land, and it u admitted that as a matter of fact the Court of Wards took muchilikas from the ryots agreeing to pay the tax. A portion of the tax payable by the ryots was remitted by the Court of Wards, and the question far decision is whether the defendant is entitled to credit for the amount so remitted. It was at first staled to us that the amount in question was written as irrecoverable from the ryots, but on examining the evidence as given by defence witnesses Nos. 2, 3 and 4, we find that as a matter of fact what happened was that the Court of Wards remitted a portion of the amount payable by the ryots. It does not appear that the amount in question was remitted on the ground that it was irrecoverable. The witnesses say that as the ryots were poor and as the crops failed, the amount was remitted. This would be no justification for the remission to the defendant as against the plaintiff. It is therefore unnecessary to consider whether, if the amount were actually irrecoverable from the ryots, the defendants would be Entitled to credit for it. Mr. Tiruvenkatachariar contends that in any event, the defendant, who was a minor daring the years in question, could not be made liable for more than the amount actually received whilst the estate was in the possession of the Court of Wards. But this question was not raised either in the lower court or even in the grounds of appeal to this court, and as it is impossible for us to say that, if the question had been raised, the plaintiff might not have had an answer to make to it, we have refused to allow the matter to be argued. The Subordinate Judge accepted the view of the Commissioner and based his judgment on the ground that as the defendant took possession of the land which the plaintiff was entitled to have in her possession, she cannot claim credit for the water rate paid by him. But in the view we take of the case it is unnecessary to consider the correctness of this position. As we have found that the defendant has not shown that the whole water rate paid by him to Government could not have been collected from the ryots, we must disallow the appellant s contention.

(3.) The next point raised relates to the question whether the defendant is entitled to deduct the commission of 2 1/2% paid to the Court of Wards under the Standing Orders of the Board of Revenue for the expenses of management over and above the cost of the establishment employed separately for the Pittapore Estate. The Subordinate Judge was of opinion that the defendant was not entitled to this deduction. There is no doubt that the management by the Court of Wards must have contributed considerably to efficiency, but it is difficult to hold that the defendant taking possession of the plaintiff s property is entitled to ask her to contribute towards a specially effective mode of management adopted in his Own interests. We are of opinion that the Subordinate Judge was not wrong in disallowing the commission. The third and last point raised in the appeal relates to a small sum of Rs. 256 which the defendant claimed a deduction of as uncollected rent. We see no reason to differ from the view taken by the Subordinate Judge that the defendant is not entitled the credit for it. We must therefore dismiss the appeal with costs. The memorandum of objections relates to the correct amount of mesne profits which the plaintiff is entitled to recover for the Vemavaram village. A portion only of this village was included in the grant to the plaintiff made by the late Raja of Pittapore.