State v. Ganapathy Valiyaraja — 1951 DIGILAW 25 (KER)

Judgment :- These two appeals arise from the judgment and decree dated 13th April 1943 (31 Meenom 1118) of the District Court of Mavelikara in O.S. 97 of 1116. That suit was originally instituted before the Kottayam District Court as O.S. No. 112 of 1097 but when a District Court was established at Mavelikara it was transferred to the new court as the properties involved in the suit came within the territorial jurisdiction of that Court. The Raja of Idappalli (hereinafter referred to as the plaintiff) brought the said suit for a declaration that the properties described in schedule A and B annexed to the plaint formed part of his "Edavaga" or freehold tracts, that they were exempt from payment of land revenue to Government, and that the right to collect the tax of those properties from persons in possession thereof belonged to his Swaroopam. Reliefs ancillary or consequential thereto were also claimed in the plaint. The Government of Travancore represented by the Dewan of the State was impleaded as the first defendant and there were besides as many as 213 other defendants when the suit was first filed. The latter were said to be persons in possession as tenants under the plaintiff's Swaroopam. During the long course of years the suit was pending in the lower court, four successive Rajas of Idappalli died and the present plaintiff is the 5th person to come on the record as such. Pending suit several defendants also died and their respective legal heirs were all duly impleaded. The main, if not the sole, contesting defendant was the Government of Travancore. The circumstances which led up to the institution of the suit are as follows: 2. Idappalli was a small State which became subject to Travancore in 1000 M.E. It is now one of the Edavagas recognised in the Government accounts. The Chief pays a subsidy to Government for Police protection, but he has no civil or criminal jurisdiction. The whole of the land revenue in the Edavaga goes to the Chief. Idappalli was a small State which became subject to Travancore in 1000 M.E. It is now one of the Edavagas recognised in the Government accounts. The Chief pays a subsidy to Government for Police protection, but he has no civil or criminal jurisdiction. The whole of the land revenue in the Edavaga goes to the Chief. The properties in suit are Cherickal lands and during the Cherickal Settlement operations, though the proprietory interest of the plaintiff over the properties in schedule A of the plaint was recognised by the Settlement authorities, they were registered only as plaintiff's jenmam lands and not as forming part of the Edavaga proper so as to exempt them from the incidents of Sirkar Tax. In the Cherickal Settlement it was further decided that the B Schedule properties did not belong to the plaintiff at all. These decisions were made during 1083 and 1084. The plaintiff preferred revision petitions against them, to the Settlement Central Office, but all those petitions were dismissed and when twelve years had almost elapsed since their dismissal the plaintiff instituted the suit giving rise to these appeals. The date of the dismissal of the revision petitions was 25.11.1085 and the suit was filed on 24.11.1097. Besides seeking a declaration that the right to collect tax in respect of the plaint properties belonged to the plaintiff's Swaroopam the plaintiff sought to recover from the Government of Travancore, the first defendant the tax collected by them during the twelve years preceeding the suit and also prayed for an injunction restraining them from collecting the tax of the said properties in future. According to the plaintiff his Swaroopam has been collecting the tax and varam dues from defendants 2 onwards and their predecessors-in-interest for the past several years; but after the Settlement decisions the first defendant Sirkar started collecting tax from them (the tenants). The case put forward in the plaint was that as the suit properties formed part of Idappalli Edavaga the Sovereign right of the State did not extend to the collection of tax of those properties and that the decisions of the Cherickal Settlement Officers were all wrong. 3. The case put forward in the plaint was that as the suit properties formed part of Idappalli Edavaga the Sovereign right of the State did not extend to the collection of tax of those properties and that the decisions of the Cherickal Settlement Officers were all wrong. 3. The first defendant Sirkar as also defendants 32, 96 and 150 filed written statements, but during the course of the suit the three latter named defendants withdrew from contest, leaving the Government of Travancore (hereinafter referred to as the Government) alone to defend the suit right up to the end. The Government contended inter alia that the decisions of the Cherickal Settlement Officers were correct and not liable to be called in question, that the plaintiff had no right to collect the tax of the A schedule properties, that the plaintiff had no interest whatever in the B schedule items and that the suit was barred by limitation. 4. The lower court after an elaborate trial negatived the plea of limitation and found the plaintiff's claim with respect to the A schedule properties to be true regarding certain items comprised therein. The proprietory interest over item 13 in the B schedule was also found to belong to the plaintiff's Swaroopam. Relief was granted to the plaintiff to recover from the Government the tax they unauthorisedly collected from his tax free lands during the twelve years preceeding the suit and the period covered by the pendency of the suit. The tax falling due after the date of the decree the plaintiff was authorised to realise direct from persons in possession. 5. Of the two schedules of properties annexed to the plaint, A schedule comprised 25 items and B schedule 33 items. The plaintiff's action therefore failed in the lower court for a large part. For a proper appreciation of the scope of the two appeals before us it would be helpful to quote here the decretal portion of the learned judge's judgment: It runs thus:- In the result, the following decree is passed: "(A).The six lekkoms mentioned in Ext. B and the plaintiff's share in Mukkoor Cherickal proper are declared to be the Desa Ozhuvu lands of the plaintiff's Swaroopam. (B). The plaintiff's right to collect the tax and other dues, from the above said properties is hereby declared. (C). B and the plaintiff's share in Mukkoor Cherickal proper are declared to be the Desa Ozhuvu lands of the plaintiff's Swaroopam. (B). The plaintiff's right to collect the tax and other dues, from the above said properties is hereby declared. (C). The annual tax due from these properties is found to be 400 fanams 3 chuckrams 13 cash and 31/2 paras of paddy. The plaintiff is allowed to recover the annual tax as found already, for a period of twelve years before date of the suit, with interest at the rate of 6% per annum such interest not exceeding half the principal, from the first defendant-the Sirkar. (D). The plaintiff is allowed to realise the above amount annually from the date of the suit, till the date of the decree, with interest at the above rate, the interest not exceeding half the principal, from the first defendant. (E). The amount due after the date of the decree, will be realised from the persons from whom the tax is due. (F). The paddy will be valued at the nirak prevailing each year in the market. (G). The plaintiff is declared to be the owner of item No. 13 in the B schedule and of the Vallikkadu Cherikkal as found already. (I). The rest of the plaint claim is hereby disallowed. (I). The first defendant the Sirkar will get one-third of the costs from the plaintiff who will suffer his own. (n. Future interest and interest on costs 4%". 6. The plaintiff has preferred A.S. 575 against that portion of the decree negativing his claim while the Government has preferred A.S. 726 challenging the correctness of the decree to the extent it upholds the plaintiff's claims. When the plaintiff's learned counsel opened his arguments before us in A.S. 575 it appeared to us that the disposal by the learned judge in the court below of the question of limitation arising in the case was far from satisfactory and that in case his decision on the point cannot be upheld no useful purpose would be served by hearing arguments on the merits of the appeals. Accordingly they were directed to confine their arguments in the first instance to the question of limitation and after hearing them on that question we reserved judgment. Accordingly they were directed to confine their arguments in the first instance to the question of limitation and after hearing them on that question we reserved judgment. They were told that in case we uphold the lower court's decision that the suit is not statute barred the appeals will be reposted for further hearing. We have given the arguments raised at the Bar on the point of limitation arising in the case our best attention and have unhesitatingly come to the conclusion that the plaintiff's suit must fail as it was instituted long out of time. 7. The scope of the plaintiff's suit and the nature of the reliefs claimed have already been set out in the preceeding paragraphs. On the face of it the primary relief claimed in the plaint is a declaration as to the plaintiff's title to the immoveable properties involved in the suit. During the course of the Settlement Proceedings the Government had refused to recognise that the plaintiff was entitled to collect the tax of the A schedule properties or that he was entitled to enjoy them tax free. Regarding the B schedule properties the position was that the Settlement decisions had held that the plaintiff had no manner of right or title to them. Though no relief was expressly claimed to set aside those decisions or to declare them to be wrong the primary relief as stated above was to have the plaintiff's title declared in the suit which according to him was omitted to be recognised in the Settlement Proceedings. Other reliefs claimed in the plaint such as recovery from the Government of the tax collected before or after the suit and the perpetual injunction preventing the Government from realising the same in future were reliefs claimed as ancillary to or consequential upon the grant of the main relief. Other reliefs claimed in the plaint such as recovery from the Government of the tax collected before or after the suit and the perpetual injunction preventing the Government from realising the same in future were reliefs claimed as ancillary to or consequential upon the grant of the main relief. The contention the defendant raised with reference to limitation was that a suit to declare a plaintiff's title to immovable property was governed by the six years' rule of limitation provided by the residuary article in the First Division of the First Schedule of the Limitation Act (Art. 109 of the Travancore Limitation Act corresponding to Art. 120 of the Indian Act) and that the present suit instituted for such a declaration on the eve of the expiration of twelve years after his right to sue accrued according to the plaintiff's own showing was clearly barred by time. The plaint expressly stated that the cause of action for the suit arose on 25.11.1085 when the Settlement Central Office dismissed the revision petitions filed against the decisions of the Settlement Officers. According to the plaintiff the article of the Limitation Act which governed the case was Art. 132 (Travancore) which corresponded to Art. 144 of the Indian Limitation Act. The said article relates to suits for possession of immovable property or any interest therein not otherwise specially provided for in the first Schedule and it provides for such suits a period of twelve years from the time the possession of the defendant becomes adverse to the plaintiff. The question for determination in these appeals is which of these contentions should prevail. The learned judge in the court below gave his decision on the point in favour of the plaintiff in one short paragraph of his judgment which may be conveniently extracted here: "Issue 16:- In the written statement of the first defendant, it is contended, that the suit brought six years after the Settlement decisions, is barred by limitation. The plaintiff bases his cause of action on the decisions, in the revision petitions presented by him against the decisions of the Cherickal Officer and the date when the revision petitions were rejected, is said to be the 26th Mithunam 1085. The suit was instituted on the 24th Mithunam 1097 and according to the plaintiff he has got twelve years from the date when the revision petitions were rejected, for bringing this suit. The suit was instituted on the 24th Mithunam 1097 and according to the plaintiff he has got twelve years from the date when the revision petitions were rejected, for bringing this suit. The first question that has to be decided therefore is whether this suit is governed by the six years' rule under Art. 109 of the Limitation Act or the twelve years' rule under Art. 132 of the Limitation Act. Art. 132 deals with suits for possession of immovable property or any interest therein and it is laid down that such suits have to be brought within twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. There is difference between the wording in Art. 130 and that in Art. 132. Art. 130 deals with possession of immovable property, when the plaintiff has been dispossessed or has been discontinued the possession. This suit relates to the right to levy tax and it is contended for the plaintiff that Art. 132 could not apply since there is no prayer for possession of immovable property. But it has to be noted that this article deals also with any interest in immovable property as well. The Privy Council Ruling referred to in paragraph 45 supra (Maharana Fattehsangji Jaswat Sanji v. Desai Kallianriji Hekoomutraiji) lays down that the right to receive an annual payment is an interest in immovable property. In Chitaley's Limitation Act Vol. III what would constitute an interest in immovable property, has been defined at pp. 2015 and 2016 (1919 Edition). The right to collect rent, is said to be an interest in immovable property. Similarly in Insingh Norangee v. S. Veeramany Iyen (20 T.L.R. 62) it has been held that the right to receive the profits of immovable property is an interest in immovable property. The principle laid down in Ganapathy Iyen v. Venkitanarayana Iyen (10 T.L.R. 56) shows that suits like the present one are governed by the twelve years' rule. The right of the plaintiff was invaded by the Sirkar, when the Cherickal decisions authorised the same to collect the dues from the properties. The plaintiff's right was obstructed and the Sirkar began to collect the tax on the strength of the Cherickal decisions. The right of the plaintiff was invaded by the Sirkar, when the Cherickal decisions authorised the same to collect the dues from the properties. The plaintiff's right was obstructed and the Sirkar began to collect the tax on the strength of the Cherickal decisions. I would therefore hold that Art. 132 of the Limitation Act applies to this suit, and that it is not barred by limitation, since it was brought within twelve years of the final decision in the Cherickal case." 8. We are afraid the learned judge has not come into close grip with the real questions for decision. A suit for possession under Arts. 130 or 132 (Indian Arts. 142 and 144) assumes that defendant is in possession and that plaintiff seeks to eject him. In such a suit there must be a prayer, express or implied, for dispossession of some one from the property or from the interest in it which the suit claims. See Rustonji on Limitation (5th Edition 1939) Vol. II p. 1319 and U.N. Mitra's Law of Limitation and Prescription, Volume II (7th Edition 1950) p. 934. Among the decisions relied upon by the learned commentators special mention may be made of the decision in Francis Logge v. Rambaran Singh (1898) I.L.R. 20 Allahabad 35 (F.B.). That case reviews previous case-law on the subject and lays down the principle enunciated above in clear terms. Admittedly there is no prayer in the present suit to recover possession of any immovable property. Recovery of tax claimed from the Government which according to the plaintiff the former wrongfully collected from the tenants in possession is, if anything, a claim which sounds in damages. A suit for damages is not concerned in any manner with a right, title or interest in immovable property. See Muruga Mudaliar v. Subba Reddiar (A.I.R (1951) Madras 12 (F.B.)) It is a claim personally against the wrong doer and a suit seeking to enforce such a claim cannot obviously amount to a suit to recover any interest in immovable property. The cause of action for it arises out of the alleged tortious conduct on the part of the defendant. The decisions referred to by the learned judge in the court below in the extract quoted above cannot be of any avail to the plaintiff with respect to the claim against the Government. The cause of action for it arises out of the alleged tortious conduct on the part of the defendant. The decisions referred to by the learned judge in the court below in the extract quoted above cannot be of any avail to the plaintiff with respect to the claim against the Government. The case in 1 Indian Appeals 34 only states that the hereditary right to collect certain dues from an inamdar out of the rents of a village is an interest in immovable property within the meaning of the Limitation Act XIV of 1869 and that claim for arrears of it for upwards of six years is not barred under Cl. 61, S.1 of that Act. The decision in 20 T.L.R. 62 is to the effect that the right to receive the profits of immovable property is an interest in immovable property. The third case cited namely 10 T.L.R. 56 relates to a case where the court held that a suit to remove obstruction caused to a window on the plaintiff's wall instituted within twelve years of the obstruction is not barred by limitation as the suit relates to an injury to immovable property. In the present suit among the reliefs claimed in the plaint a prayer is made in very vague and indefinite language that a decree may be given to the plaintiff for the tax for the twelve years preceeding the suit also against such other defendants than the Government as are found liable by the court. Regarding this claim the first two cases cited in the above extract have some relevancy, but that aspect will presently be adverted to. Suffice it to say for the present that none of the cases cited have any bearing at all on the question of limitation as against the Government. 9. If the plaintiff succeeds to get a declaration in his favour regarding the title set up by him its effect would be to render the decisions of the Settlement authorities void and ineffective and to force the hands of the Government to correct the entries. In the pithy words of Sir Charles Sargent, C.J. a right to be placed on the revenue registers is not an interest in immovable property. See Bhikaji Baji v. Pandu (1893) I.L.R. 19 Bombay 43. In the pithy words of Sir Charles Sargent, C.J. a right to be placed on the revenue registers is not an interest in immovable property. See Bhikaji Baji v. Pandu (1893) I.L.R. 19 Bombay 43. That case related to a suit to obtain a declaration of the plaintiff's right to have certain lands registered in their names in the revenue registers. 10. It is settled law that suits declaratory in their nature are governed by Art. 120 of the Indian Limitation Act. See Rustonji on Limitation (5th Edition, 1938) Volume II pp. 1120-1122 and U.N. Mitra's Law of Limitation and Prescription (7th Edition 1949) Volume I p. 683. Decided cases on the topic are numerous and the decision in (1895) I.L.R. 20 All. 35 (F.B.) already referred to is one of the early authoritative pronouncements on the question. The Privy Council had to consider the point more than once and we shall now refer to some of Their Lordships' decisions on the point. 11. The first Privy Council decision we refer to is that in Ambu Nair v. Secretary of State (A.I.R. 1924 Privy Council 150). In that case in 1903 the Government officials marked off the lands in suit and issued to the plaintiff as the karanavan of his tarwad a rough pattah showing the lands to which the Government admitted his right to obtain grant subject to the usual conditions. The plaintiff preferred objections to the exclusion from the rough pattah of the lands in suit. His objections were definitely rejected in 1905. The suit giving rise to the appeal before Their Lordships to set aside that order and to obtain a declaration of his right was instituted in 1918. Their Lordships held that Art. 120 of the First Schedule of the Limitation Act, IX of 1908 applied to the case and that the suit instituted beyond six years of the rejection of the objections was clearly out of time. Their Lordships said that no period of limitation is specifically provided elsewhere for the assertion of a claim of the kind before them and that therefore the residuary Art. 120 applied. In our view it is impossible to distinguish the present suit from this case. In Mt. Their Lordships said that no period of limitation is specifically provided elsewhere for the assertion of a claim of the kind before them and that therefore the residuary Art. 120 applied. In our view it is impossible to distinguish the present suit from this case. In Mt. Jaggo Bai v. Utsava Lal (A.I.R. 1929 PC 166) it was held that a suit for declaration of plaintiffs' right to melikana (which, for purposes of the suit, was treated as immovable property), fell within Art. 120 Indian Limitation Act. That decision is of special importance to the case in hand where the declaration sought for is that the plaintiff is entitled to collect the land revenue assessment of the properties in suit. 12. Again in another case reported in the same volume, Midnapur Zemindary Co. v. Secretary of State (A.I.R. 1929 PC 286) Their Lordships held that the period of Limitation applicable to a suit for a declaration that the entry in the record of rights that a person is tenure-holder is erroneous and that he should be declared a raiyat is that provided by Art. 120. Yet another Privy Council decision which lays down that neither Art. 142 or 144 applied to a suit for a declaration of title to immovable property and that the applicatory provision for such a suit is Art. 120 is the case reported in Jagatjit Singh v. Partab Bahadur (A.I.R. 1942 PC 147). There the question arose in a suit for declaration of title to property in the possession of a receiver in proceedings under S. 145, Criminal Procedure Code, and not with respect to any entry in the revenue records as happens to be the case with most of the decisions dealing with this subject. 13. In the light of the uniform course of decisions of the Privy Council it will be mere superarogation to proceed to cite other decisions laying down the same rule. However in addition to the Allahabad case and the Bombay decisions cited earlier we shall make passing reference to a few more decisions of the Indian High Courts. Among the Madras cases mention may be made of Kanniyalli v. Neelakhandan (A.I.R) 1922 Madras 194, and Parthasarathi Appa Rao v. Secretary of State (A.I.R.) 1936 Madras 313. The former arose from a suit for a declaration by the plaintiff that he is the jenmi of the plaint land. Among the Madras cases mention may be made of Kanniyalli v. Neelakhandan (A.I.R) 1922 Madras 194, and Parthasarathi Appa Rao v. Secretary of State (A.I.R.) 1936 Madras 313. The former arose from a suit for a declaration by the plaintiff that he is the jenmi of the plaint land. The revenue authorities had refused to change the registry into his name. The plaintiff made that application in 1917, and he followed it up by a suit immediately the refusal was made. His father had made a similar application to the revenue authorities in 1903 and the court held that the suit for a declaration of title instituted six years after the refusal in 1903 was statute-barred. In the latter case it was held that a suit by a zemindar against Government for a declaration that an enfranchisement by Government is not valid and binding on the zemindar is governed by Art. 120. The decisions of the Calcutta, Lahore and Patna High Courts are also to the same effect. See Pitha Kali Patha v. Surendra Nata (A.I.R. 1934 Calcutta 192), Ahmed Hussain v. Dogendra Narain (A.I.R.) 1935 Calcutta 801, Midnapore Zamindari Co. v. Secretary of State (A.I.R). 1938 Calcutta 805, Jaimal Singh v. Chand Singh (1925) 91 Indian Cases 605 (Lahore) and Sudhkar Misra v. Nilakantha Das (A.I.R.) 1936 Pat. 129. In Raman Velu Menon v. Diwan of Travancore (7 T.L.J. 169) the Travancore High Court held that a suit for declaration of plaintiff's jenmam right to and possession of the plaint property and for cancellation of revenue sale and registry of it as Puduval, the period of limitation applicable is six years as provided under Art. 109 of the Travancore Limitation Act. It was further held that the suit was in substance a suit for declaration as to title to and possession of land and that other prayers were mere surplusage. On the point of limitation arising here the Cochin High Court uniformly took the above view that the six years' rule applied. See Kunjikrishna Raja v. Sirkar (7 Cochin Law Reports 265), Kittunni Valia Mannadiar v. Diwan of Cochin (10 Cochin Law Reports 139 (F.B.) and Manickan Keralan Thachudaya Kaimal v. Diwan of Cochin (18 Cochin Law Reports 376). 14. In some of the above cases a controversy has centered round the third column of the Article that the period begins to run "when the right to sue accrues". 14. In some of the above cases a controversy has centered round the third column of the Article that the period begins to run "when the right to sue accrues". It is a moot point whether time begins to run from the time of the first invasion of the right or whether every fresh invasion would give rise to a fresh cause of action. We do not however have to tackle the question in this case in as much as the plaintiff has averred in the plaint that the cause of action arose on 25.11.1085 when the Settlement Central Office dismissed his revision petitions. Six years from that date had long elapsed when the suit was instituted on 24.11.97. It is therefore unnecessary to consider here whether the cause of action arose earlier when adverse entries were made in the Settlement registers or when pursuant to those entries tax was first levied from the tenants. A suit for declaration as to the plaintiff's title was clearly barred when the suit was brought. Other reliefs claimed in the suit such as recovery from the Government the tax collected by them or as injunction restraining the Government from collecting the same in future have certainly no longer period of limitation than a suit for declaration of plaintiff's title. Besides, these reliefs were claimed merely as ancillary to or consequential upon the main relief of declaration and when that fails as time barred the entire basis for further reliefs disappears. 15. Reference was made in an earlier portion of this judgment that relief by way of recovery of tax for the twelve years preceeding the suit was claimed in the plaint also against such other defendants than Government as may be found liable by the court. That may perhaps be a claim to recover an interest in immovable property. But the plaint discloses no ground whatever to make them liable to the plaintiff for the tax they had already paid once to the Government. That may perhaps be a claim to recover an interest in immovable property. But the plaint discloses no ground whatever to make them liable to the plaintiff for the tax they had already paid once to the Government. This claim formed the subject of issue No. 20 and the lower court disposed the same in the following terms in para 53 of its judgment: "Issue 20: It is contended for the first defendant that the plaintiff has no cause of action against the Sirkar for the tax collected from the various tenants, that there is no privity of contract between the plaintiff and the first defendant, that the plaintiff could not collect the tax, from the tenants direct and that therefore, the suit is not sustainable. It is admitted, that the first defendant was collecting the tax from the various tenants as per the Settlement decisions. The tenants have to pay tax either to the first defendant or to the plaintiff. Admittedly they have paid the tax to the Sirkar. Therefore, the plaintiff could recover the tax already collected from the first defendant. Multiplicity of suits has to be avoided as far as possible. It would be more proper to direct the first defendant to pay the tax already collected than to direct the tenants, to pay the tax over again, to the plaintiff and then ask the tenants to proceed against the Sirkar. I therefore find that the plaintiff could recover the amount already collected by the first defendant from the first defendant". 16. The learned judge refused to grant any relief to the plaintiff as against defendants 2 onwards and the memorandum of appeal before us does not contain any ground attacking this decision except the general ground that all the issues should have been found in favour of the plaintiff and the suit decreed in terms of the plaint. To all intents and purposes the suit was one to vindicate the plaintiff's rights as against the Government. Furthermore, there is not even a suggestion in the plaint, much less in the memorandum of appeal, that the relief claimed against the tenants, the plaintiff was entitled to get independently of the declaration as to title claimed against the Government. We cannot in the circumstances hold that the plaintiff has claimed any relief in his appeal against any one defendant other than the Government. 17. We cannot in the circumstances hold that the plaintiff has claimed any relief in his appeal against any one defendant other than the Government. 17. In the foregoing discussion on the question of limitation we have held that the suit was bared against the Government when it was instituted. In view thereof no purpose is served by hearing further arguments on these appeals and in disposing of them on the ground that the suit was barred by limitation we dismiss the plaintiff's appeal A.S. No. 575 and allow the other appeal preferred by the Government A.S. 726. The result is, the suit itself will stand dismissed. The Government will get their costs in both the courts from the plaintiff who will bear his own throughout. Kunhiraman, C.J. I concur. Subramania Iyer, J. I also concur. A.S. 575 dismissed. A.S. 726 allowed.