VYRAVEN CHETTIAR Vs. COLLECTOR OF SIVAGANGA

JUDGEMENT

(1.) This is a petition by the defendant to revise the decree of the District Munsif of Manamadura in S.C. Suit No. 123 of 1931. It is unnecessary to refer to the previous history of the suit or its transfer from the Reveuue Court to the Small Cause Court, except to say that its original presentation in the Revenue Court explains certain expressions in the plaint which may not be appropriated 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 September 3, 1931, but I think that this step was probably taken as Mr. Kuttikrishna 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 a 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 defendants's story as to the origin of the manibam 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 manibam 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., Original Suit 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 observations 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. Kuttikrishna 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 person in support of its finding on the first point. I am, therefore, obliged to set aside that finding and call for a revised finding on the evidence on record on the first point. Finding to be submitted before April 23, 1934. Seven days for objections.

(3.) In compliance with the abovesaid order the District Munsif of Manamadura submitted the following Finding, J.