S M NARAYANA AYYANGAR Vs. SPRMSUBRAMANIAN CHETTIAR

JUDGEMENT

(1.) This batch of second appeals arises out of a number of suits for rent for different Faslis under Secs.77, Estates Land Act. There are two holdings under the tenant: one holding tinder Patta No. 38 and another holding under Patta No. 54. Rent is claimed for portions of the suit holdings at a rate higher than the dry rate on the ground that there are cocoanut gardens in these holdings. In a former litigation between the same parties which culminated in S.A. No. 433, etc., of 1924 the same claim was made. The defendant ryot resisted the claim at the higher rate on the ground that a cocoanut plantation was an improvement within the meaning of Secs.3(4)(f), Estates Land Act, and that he is not liable to pay the higher rate and is liable to pay only the dry rate. It was held by Devadoss and Wallace, JJ. in Vellaypppa Chetti V/s. Subramanian Chettiar 50 M 482 : 99 Ind. Cas. 559 : A.I.R. 1927 Mad. 137 : 51 M.L.J. 880 : 24 L.W. 803 : (1926) M.W.N. 978, that the planting of a cocoanut garden was not an improvement under the Act and that the plaintiff was entitled to the enhanced rate. The same holdings are the subject-matter of the present suits. It is conceded by the appellant that so far as Patta No. 38 is concerned, the cocoanut plantation now existing is merely the old plantation, but as to Patta No. 54 it is said that at the time of the former litigation only a portion viz.,7 karukams, was planted with cocoanut plants but now a larger area is sought to be charged at the higher rate. I will refer to this question of additional area, later on. Leaving this aside, two questions arise in the present second appeals. The first is whether cocoanuts are fruits and a cocoanut plantation can be regarded as a fruit garden within the meaning of's 3 (4) (f), Estates Land Act. So stated, this question is undoubtedly a question of law, viz., the construction of an Act, the question being whether a particular term in the Act can be so interpreted or defined as to cover a particular class of trees.

(2.) Now it may be said that the fruit of the cocoanut tree is not a fruit in one sense of the term but is a nut and apparently this was the view that prevailed with Devadoss and Wallace, JJ. in Vellayappa Chetti V/s. Subramanian Chettiar 50 M 482 : 99 Ind. Cas. 559 : A.I.R. 1927 Mad. 137 : 51 M.L.J. 880 : 24 L.W. 803 : (1926) M.W.N. 978. But this case was considered in Sri Rajah Bommadevara Chayadevamma V/s. Venkataswami 62 M.L.J. 511 438 lnd. Cas. 40 : A.I.R. 1932 Mad. 3-43 : (1932) M.W.N. 264 : 35 L.W. 498 : Ind. Rul. (1932) Mad 481, by another Bench of this Court (Reilly and Ananthakrishna Ayyar, JJ.) and was dissented from. Both the learned Judges have dealt with the matter at some length and have given good reasons for differing from the former decision and for holding that cocoanut trees are fruit trees. Even Devadoss, J., from whose judgment the latter case came up in Letters Patent Appeal, held that cocoanut trees are fruit trees but he does not refer to the judgment in the other case reported in Vellayappa Chetti V/s. Subramanian Chettiar 50 M 482 : 99 Ind. Cas. 559 : A.I.R. 1927 Mad. 137 : 51 M.L.J. 880 : 24 L.W. 803 : (1926) M.W.N. 978. It is unnecessary to repeat the reasons given by Reilly and Ananthakrishna Ayyar, JJ. I will only add the following considerations. In the Century Dictionary under cocoanut" we have "the nut or fruit of the cocoanut tree." And then under "double cocoanut" we have "the fruit of a remarkable palm.... the fruit often weighs 40 or 50 lbs...." Under "sea cocoanut" we have "the fruit of a species of palm." In Murray's English Dictionary under "double cocoanut" we have got practically the same sentence repeated. In common parlance the cocoanut is always referred to. as a fruit before the fibre is removed.

(3.) I therefore hold that cocoanuts are fruits and that cocoanut trees are fruit trees and a cocoanut plantation is a fruit garden within the meaning of Section 3(4)(f), Estates Land Act. It follows that the tenant who has effected improvements in these cases ought not to be liable for any additional rent beyond the dry rate. The next question is how far the defendant- appellant is affected by the rule of res judicata. As already mentioned, the former decision, which in the light of our present decision must be held to be erroneous, was between the same parties and in respect of the same holding. Mr. Rajah Iyer, the learned Advocate for the appellant, contends that an erroneous decision of law should not be held to be res judicata in a later litigation between the same parties relating to a different year and that the former decision should be confined to the year in respect of which the former litigation arose. The question how far an erroneous decision on a matter of law or on the terms of a tenancy would be res judicata has been considered in three decisions of this Court. The first one is Bayyan Nath V/s. Suryanara. yana 37 M. 70 : 17 Ind Cas. 415 : A.I.R. 1914 Mad. 39 : 23 M.L.J. 593, at p. 73.. It was there held that a former decision as to the extent of a holding in a suit between a landlord and tenant relating to the validity of patta. under the Rent Recovery Act would be res judicata in respect of later years on the ground that it decides a general question not peculiar or special for that particular year. So far as this matter is concerned, the Estates Land Act is similar to the Rent Recovery Act, and if any question of general principle is settled in one litigation in respect of one year as regards the terms of patta, that would bind the parties for the future years also until new circumstances intervene. The next decision of this Court that I would refer to is Venkatanarasimhalu Naidu V/s. Venkataratnam 32 M.L.J. 63 : 37 Ind. Cas. 857 : A.I.R. 1918 Mad. 1309 : (1917) M.W.N. 321 : 5 L.W. 682. There the suits related to the recovery of a cess claimed by a zamindar from inamdars. The cess was payable annually. It was held that in cases where in a prior litigation the cess was held to be payable, that decision constitutes res judicata in litigation with respect to later years. The conclusion of the learned Judges is thus expressed: "Where a decision on a point of law, whether it be on the construction of a document or of a statute or on common law or on customary law settles a question that arises directly out of conflicting view as to the rights of tho parties, it is res judicata." 3. The reason of the judgment may be expressed thus, viz., that the former litigation settles the terms on which the two parties are related to each other in the matter of the holdings provided the decision and the terms are confined to the actual subject-matter of the suit. The earlier decisions of this High Court in Parthasarathi V/s. Chinna Krishnan 5 M 304, Mangalathammal V/s. Narayanaswami Iyer 30 M. 461 : 17 M.L.J. 250, and Natesa Chetti V/s. Vengu Nachiar 33 M. 102 : 3 Ind. Cas. 701 : 20 M.L.J. 20 : 6 M.L.T. 313., were dissented from. In Maharajah of Jeypore V/s. Ramamurthi 65 M L.J 684 : 148 Ind Cas. 221 : A.I.R. 1933 Mad. 925 : 57 M 73 : (1933) M.W.N. 510 : 38 L.W. 755 : 6 R.M. 449 (2), the same view was followed. An attempt to re-open the decision in Venkatanarasimhalu Naidu V/s. Venkataratnam 32 M.L.J. 63 : 37 Ind. Cas. 857 : A.I.R. 1918 Mad. 1309 : (1917) M.W.N. 321 : 5 L.W. 682 based on the decision of the Privy Council in Broken Hill Proprietary and Co. Ltd. V/s. Broken Hill Municipal Council (1926) A C 91 : 95 L.J. P.C. 33 : 134 L.T. 335 was made but failed. That attempt is again repeated before us, Mr. Rajah Iyer contending that the decision in Venkalanarasimhalu Naidu V/s. Venkataratnam 32 M.L.J. 63 : 37 Ind. Cas. 857 : A.I.R. 1918 Mad. 1309 : (1917) M.W.N. 321 : 5 L.W. 682 and Maharajah of Jeypore V/s. Ramamurthi 65 M.L.J 684 : 148 Ind Cas. 221 : A.I.R. 1933 Mad. 925 : 57 M. 73 : (1933) M.W.N. 510 : 38 L.W. 755 : 6 R.M. 449 (2), should be re-considered in the light of the Privy Council decision just mentioned. In the same volume we have got Hoystead V/s. Commissioner of Taxation (1926) A C 155 : 95 L.J.P.C. 79 : 134 L.T. 354 : 42 TLB 207, another decision of the Privy Council. The earlier decision relates to the valuation of land for rating purposes. The second decision relates to land tax assessment and it was held that an admission on a fundamental matter in a prior case - and a decision stands on the same footing - estops a different contention in a later case. At first sight it looks as if these two decisions are in conflict. Possibly the earlier decision may be explained on the footing that the valuation of land for purposes of rating for each year is so peculiar to that year and has to be made on considerations confined to that year and should be so uninfluenced by considerations that prevailed in prior years that no question should be considered as a general principle and what happened in one year whether a matter of principle or a matter of detail should not be used in another year and therefore the decision of one year is not res judicata for another year. If that decision is not to be explained in that way and should not be regarded as inconsistent with the decision in Hoystead V/s. Commissioner of Taxation (1926) A C 155 : 95 L.J. P.C. 79 : 134 L.T. 354 : 42 TLB 207, I prefer to follow the latter decision. This is practically the view accepted in Maharajah of Jeypore V/s. Ramamurthi 65 M L.J 684 : 148 Ind Cas. 221 : A.I.R. 1933 Mad. 925 : 57 M 73 : (1933) M.W.N. 510 : 38 L.W. 755 : 6 R.M. 449 (2) as to these two cases. These cases have also been considered in Sankaralinga Nadar & Brothers V/s. Commissioner of Income-tax, Madras 58 M.L.J. 260 : 126 Ind. Cas. 273 : A.I.R. 1930 Mad. 209 : 58 M.L.J. 260 : 31 L.W. 738 : Ind. Rul (1930) Mad. 833 (F.B.) and a similar view was taken there of the first case.