NAGALLA KOTAYYA Vs. KOGANTI KOTAPPA

JUDGEMENT

(1.) The plaintiff held the patta for the suit land and took in with him four lopayakari tenants, but, in 1908, a dispute arose between them as to who was entitled to the occupancy right in the lands, and it was finally decided that they all had occupancy right in the land. Subsequently, the plaintiff paid the whole of the rent and now seeks to recover a portion of the amount from the other co-sharers. In the present case we are only concerned with one of these sharers. The plaintiff relies on the ruling of the Full Bench in Rajah of Vizianagram V/s. Rajah Setrucherla Somasekhara Raz (1903) ILR 26 M 686 at 696 : 13 MLJ 83(FB). in which it was held that, where one of two or more co-sharers owning an estate subject to the payment of revenue to Government pays the whole revenue in order to save the estate, he is by the operation of law entitled to a charge upon the share of each of his co-sharers for the realisation of the latter's share of revenue and contends that, in consequence of this, his suit which is brought more than three years after the payment, is not barred by limitation as it is a suit to enforce a charge and comes within the scope of Art. 132 of the Limitation Act. The District Judge has differentiated the present case from that, in that the present claim is one for rent under the Estates Land Act, holding that under the Estates Land Act rent is not a charge on the land. Section 5 of the Act, however, clearly makes rent a charge upon the land and it is difficult to see how the present case can be differentiated from the Full Bench decision which is concerned with the payment of revenue. There seems to be no distinction between the charge given under Section 5 of the Estates Land Act and the charge given by Section 2 of the Revenue Recovery Act. In both cases the charge is actually given in favour of the landlord, in the latter case, the Government, but there is none the less the charge upon the land in both cases. It would therefore appear that the Full Bench decision is applicable here and that the District Judge is wrong.

(2.) The respondent, however, relies on a case Suramma V/s. Suryanaraywna Jagapati Razu (1918) ILR 42 M 114 at 115 : 35 MLJ 443. in which it was held that the charge under Section 5 of the Estates Land Act is not a charge within the meaning of Section 100 of the Transfer of Property Act. The correctness of the decision, to which I was a party, has been questioned in a subsequent case reported in Sri Rajah Bollapragada Venkata Lakshmamma Garu V/s. Menda Seetayya (1920) ILR 43 M 786 : 39 MLJ 30. but whether it is correct or not, the mere fact that the charge does not come within the meaning of Section 100 of the Transfer of Property Act does not necessarily imply that it is not a charge within the meaning of Art. 132, which is very general in its terms. I do not think that the decision in Suramma V/s. Suryanarayana Jagapati Razu (1918) ILR 42 M 114 at 115 : 35 MLJ 443. is any authority to the contrary.

(3.) Another argument is based on some of the remarks in Sri Rajah Bollapragada Venkata Lakshmamma Garu V/s. Menda Seetayya (1920) ILR 43 M 786 : 39 MLJ 30. namely that because it is Section 132 of the Estates Land Act which gives the Revenue Court power to apply the provisions of Chapter VI (of that Act) to the execution of a decree for arrears of rent, the same provisions are not applicable in the case of a Civil Court which must act under the Civil Procedure Code. No doubt these remarks in a way support the respondent's case, that the charge under Section 5 is limited in its application but they were made obiter and, if it was meant to lay down that a Civil Court cannot in any circumstances enforce the charge for rent given by Section 5(of the Estates Land Act) with all respect, the remarks appear to me to go too far, for Section 132 relates only to a question of procedure and does not affect the substantive rights of the parties, the procedure to be adopted by the Revenue Court is that contained in Chap. VI of the Estates Land Act, whereas the procedure in execution by a Civil Court is that laid down by the Civil P. C., but whichever form of procedure is adopted, it cannot remove a charge which is given by law. In this view I think that the ruling in Rajah of Vizianagram V/s. Rajah Setrucherla Somasekhara Raz (1903) ILR 26M 686 : 13 MLJ 83 (FB). must be held applicable to the present case and that, consequently, the plaintiff has a charge upon the land for the rent paid by him.