VYRAVAN CHETTIAR Vs. RAJAH SRIMHTAU MUTHUVIJAYA REGHUNATHA DORAISINGAM

JUDGEMENT

(1.) This is a petition by the defendant to revise the decree of the District Munsif of Manamadura in Section C. Suit No. 123 of 1931. It is unnecessary to refer to the previous history of the suit or its transfer "from the revenue Court to the Small Cause Court, except to say that its original presentation in revenue Court explains certain expressions in the plaint which may not be appropriate to the suit if it had been intended to file it in the first instance in the Small Cause Court. Before dealing with the merits it is perhaps convenient to deal with one contention raised by Mr. Patanjali Sastri, that while point No. 1 noted for determination in para. 4 of the District Munsif's judgment speaks of the claim as thirva or cess, an application was at one stage made before the Small Cause Court to have the plaint amended by converting it into a claim for kanganam and Kulavettu cess. It would appear that this petition was dismissed as not pressed on. 3 September 1931, but I think that this step was probably taken as Mr. Kutti Krishna Menon suggests because the Court had by that time apparently expressed its view in favour of the plaintiff even on the plaint as it had been framed. Now that the matter is being sent back for a revised finding, it may be hardship if the plaintiff should be held precluded from pressing that amendment petition. I would therefore ask the lower Court in dealing with the matter now on remand to take into account the amendment petition (I.A. No. 220 of 1931) as if it is still remaining undisposed of. This will of course entitle the defendant to press his objection to the amendment petition as well.

(2.) On the merits one of the main contentions between the parties is that embodied in point No. 1 in para. 4 of the District Munsif's judgment. It is unnecessary for the present purpose to say whether the defendant's story as to the origin of the manibham is proved or not because even if that particular story is not proved, the question will still remain what are the terms, if any on which the manibham lands are held by the defendant. This question is disposed of by the District Munsif practically on what he considers to have been decided in a former suit between the parties viz : ., O.S. No. 555 of 1928 on the file of the District Munsif of Manamadura (Ex. B in the present suit). The District Munsif states that it has been definitely held in that suit that thirva is payable in respect of the suit land. Mr. Sastriar rightly argues that that suit was ultimately dismissed and therefore no conclusiveness can attach to any observation made in the course of that judgment. But the learned District Munsif has fallen into a more serious error in reading into that judgment any finding of the kind above stated. Even Mr. Kutti Krishna Menon who appears for the estate is not able to find any such expression of opinion in that judgment. The lower Court does not give any other reason in support. of its finding on the first point. I am therefore obliged to sol; aside that finding and call for a revised finding on the evidence on record on the first point. Finding to be submitted before 23 April 1934. Seven days for objections. In compliance with the abovesaid order the District Munsif of Manamadura submitted the following:

(3.) Finding. - This case has been remanded by the High Court for submission of a fresh finding on the first point for consideration. The plaintiff has been given liberty to press the amendment petition, I. A. No. 220 of 1931 put in by him. I have allowed the amendment petition and I have given my reasons in the order passed thereon. The petition was not seriously opposed and the defendant's vakil, stated that even without the amendment the defendant understood the claim to relate to kanganam and kulavettu and that evidence was let in by both sides on that footing. The defendant put in an additional written statement denying his liability to pay kanganam and kulavettu. Neither side chose to let in any fresh evidence and the vakils stated that all the necessary evidence had been let in before and the case was argued on the evidence already recorded. The point for consideration is whether the defendant is liable to pay kulavettu and kanganam in respect of the suit lands which are admittedly manibham lands.