PONNAMMAI NADATHI Vs. TINNEVELLY SWAMI NELLIAPPAR AND SRI KANTHIMATHI AMBAL DEVASTHANAM, THROUGH ITS TRUSTEE, MRKSUBRAMANIA PILLAI

JUDGEMENT

(1.) This appeal raises the question of the jurisdiction of a Revenue Court to deal with a claim by a landholder to recover under the Madras Estates Land Act a sum of money paid to the Government on account of water cess payable by the ryot to the Government. The appellant is the defendant who is a ryot. The suit was one of a large batch, in which various contentions were raised with which we are not concerned. For the purpose of the present appeal the essential facts are that the defendant had rendered himself liable to water cess for irregular irrigation of his land with water taken from a Government source. Under Section 1-A of the Madras Irrigation Cess Act, the Government on 22nd April, 1914, issued a notification the effect of which is that irrigation cess due in respect of regular irrigation shall be recovered from the landlord, whereas irrigation cess due in respect of irregular irrigation shall be recovered from the ryot to whose holding water is taken irregularly. It is established that in spite of this notification the local revenue authorities continued to follow the old practice whereby all sums due on account of irrigation of lands within an estate with the help of Government water, whether the irrigation was regular or irregular, were recovered by the Tahsildar from the landholder and the landholder was left to recover from the ryot. Consequently the sums due from the present defendant though due in respect of irregular irrigation were recovered from the plaintiff and the plaintiff claimed these amounts as part of his rent, without any special pleading regarding the circumstances in which he had discharged his (ryot s) obligation.

(2.) It is argued for the appellant that though the money payable to the Government by the defendant for irregular irrigation was originally payable on account of use and enjoyment of water supplied or taken to the cultivation of his land, the money which the defendant has to pay to the plaintiff is not a payment for the use of water, but a payment in compensation for unlawful recovery from the plaintiff of a sum of money due to the Government from the defendant; that is to say, it is purely a claim falling under Secs.69 and 70 of the Contract Act which can only be based on a proper pleading, showing the circumstances in which the payment was made and the reason for which the plaintiff is entitled to recover from the defendant. The contention is that this being an ordinary civil claim under Secs.69 and 70 of the Contract Act is not a matter over which a Revenue Court can exercise jurisdiction.

(3.) It must be conceded that this plea to the jurisdiction was not taken in the written statement as it should have been. But the appellant explains that the plaintiff did not set forth the circumstances in which this claim for irrigation cess was made and that as soon as the position was made clear the contention was put forward that the Revenue Court had no jurisdiction and a ground of appeal was taken in the lower appellate Court. In these circumstances, I think it is open to the appellant to urge this contention in second appeal.