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Judgment
Spencer, J.—These suits were brought by the Zemindar of Kallikota and Attagada against certain ryots of his estate for the recovery of
arrears of rent u/s 77 of the Madras Estates Land Act. From the printed papars, the admissibility of which is- not disputed, it appears that what
happened was this.
On the 22nd January 19i2, certain ryots applied u/s 74 of the Act to the Deputy Collector to depute a Government Officer to make a division of
the crops on their holdings, alleging that the estate officials had over-estimated the crop for the current fasli, that the ryots not agreeing to the
estate''s estimate sent a notice to the taluk officer to have the crop estimated by mediators within two days of the receipt of their letter, stating that,
if he would not do so, the crop would be cut and heaped in the threshing-floor, and that, as no one had come '' within six days, they had got the
crop estimated by respectable persons and had cut and heaped it on the threshing-floor. Thereupon, the Deputy Collector sent a notice to the
Manager of the estate to attend on a date fixed before the Deputy Tahsildar, informing him that the Deputy Tahsildar had been deputed for the
purpose of division of produce under the Act. In his proceedings, dated 31st^ January 1912, the Deputy Collector directed the Deputy Tahsildar
to make a division of the produce according to Section 75 of the Act. He ordered him further to take up the work as soon as possible, pronounce
his award and submit the records to the Deputy Collector''s Office with a report; adding that if the parties agreed to his award the division of the
produce might be made accordingly. Seventeen days after this, the Manager of the estate filed an objection petition in the Court of the Deputy
Collector in which he stated that the Estate Revenue Inspector had got the crops estimated in December by the Village Officers and that the ryots
did not object to this estimate, but that they had reaped a portion of the crop before and after the estimate was made and had carried away nearly
half of it; and he, therefore, asked the Court to order payment at the rate of 11 nouties per bharanam on the total produce of paddy and 12 nouties
on the extent grown with sugarcane, or to order payment at the rate paid by other ryots holding similar lands in the neighbourhood or, in the
alternative,-to have the crop appraised by a Government Officer u/s 75 of the Act. A notice was sent in April to the Manager requiring him to
show cause why his application for appraisement of crops should not be rejected for want of standing crops on the lands for appraisement. But it
does not appear whether he did show cause against this order and whether any final orders were passed on the subject. The Deputy Tahsildar, in
his award dated the 28th May 1912, states that he confined himself to the division of the produce stored in the threshing-floor, noting simply the
objection of the estate manager about the removal of a portion of the produce. An assessor was appointed by the ryots and the Deputy Tahsildar
appointed another assessor for the estate, as the estate officials refused to nominate one. The Deputy Tahsildar then divided the paddy between
the petitioners and the estate according to the usual waram rate, and appended to his award a statement showing the total produce of the holdings
of each petitioner the melvaram paid to the estate and the kudivaram paid to the ryot. The estate Revenue Inspector gave a receipt for the portion
that fell to the estate''s share acknowledging it as part-payment of what was due from the ryots. The Deputy Collector, on receiving the Deputy
Tahsildar''s award, waited for more than a month to see if any objections were filed and as none were received, he confirmed the award.
Section 73 of the Act declares that the ryot is entitled to exclusive possession of the whole produce until it is divided, but may hot remove any
portion of the produce from the threshing-floor at such a time or in such a manner as to prevent the due division thereof at the proper time, and
Clause (4) declares that, if he does so, the produce may be deemed to have been as full as the fullest crop of the same description in the
neighbourhood on similar land for that harvest. Section 74 provides for applications being presented either by the landholdei or by the ryot to the
Collector for deputing an officer to make the division or appraisement or determination of the crop. The next section declares what the duties of
the officer, who is so deputed, are. If an objection is made that the rent is not taken by division, or appraisement, or that no rent is payable,
Section 75(2) requires the officer deputed merely to record the objection, and after appointing assessors and recording their opinions the officer is
to make an award. If the parties agree to the award and if the case is one of division of produce, the division is to be made accordingly. If they do
not agree to the division, and in all cases where the rent is payable by appraisement of the standing crop or where the value of a full crop has to be
determined, the officer deputed is to make an estimate of the produce and determine the rent payable. He then delivers his award and submits a
report to the Collector. A week''s time is given for parties to file objections. If an objection is filed that the rent is not payable by division or
appraisement or that no rent is payable, (which reading Section 74 together with Clauses (2) and (7) of Section 75, I take to be equivalent to a
preliminary objection against the application of this summary procedure for ascertaining the rent) and if the Collector upholds the objection, he
must set aside the award. If any other objection is filed, or if no objection is filed, the Collector may confirm the award or may, after hearing the
parties, modify it and he must then pass an order for the payment of the rent. Such an order is declared to be final and to have the effect of a
decree for arrears of rent.
In the present case it does not appear that any objection was filed that the rent was not payable by division, etc., nor was any other objection
filed after the receipt of the Deputy Tahsildar''s report. But the estate authorities had, at an earlier stage, raised an objection of another sort
regarding: the removal of the crop, and although this objection was filed before the case was sent to the Deputy Tahsildar for determination, the
Deputy Collector might have considered whether it was a good objection and might have passed such orders as were proper in the circumstances
of the case. It is now contended that, as there was no appraisement of the standing crop, no finding as to whether any portion of the crop had been
removed, and no determination of what would be a full crop, the Deputy Collector''s award is no award in law but a nullity. The lower Courts held
that the landholder had lost his remedy and must suffer for his own negligence. Even assuming that the Deputy Collector did not do all that he might
have done, the question is whether the landholder is to be allowed to go on with these suits as if there had been no proceedings between the
parties for ascertaining the rent of the jasli in question. There is no doubt that he might have obtained the remedy he wants if he had taken the
necessary steps by filing an objection to the Deputy Tahsildar''s award within one week, but he did not do so. Again, if he considered that the
Deputy Collector or the Deputy Tahsildar had failed to exercise the jurisdiction vested in them by law or had contravened an express provision of
law affecting their decisions on the merits, he might have applied u/s 205 of the Act to the District Collector or the Board of Revenue to have the
defect remedied. I am of opinion that, where there is an award which is final and when the law provides a means of questioning the legality of that
award and the landholder has not chosen to avail himself of it, he cannot be allowed to ignore the award and sue for rent as if the question of the
tenant''s liability was res integra. It is true that the quantity of produce received by the estate Revenue Inspector is deducted in the schedule
attached to the plaint from the total amount of rent demanded; but whether any of the produce had been removed by the ryot in such a manner as
to prevent its appraisement or division, and if so, what was a fair estimate of the fullest crop of the same description in the neighbourhood were
essentially questions for the Collector to determine, as provided under Sections 78 and 75 of the Act. The land-holder should have taken all the
necessary steps to have these questions determined in the manner provided by the Act, and if the officers appointed for the purpose declined
jurisdiction he should have adopted the procedure prescribed in the Act for having the award revised. Not having done so, he cannot be allowed
to choose his own tribunal and raise the same question again after waiting till all traces of the crop have been removed. The only decision on this
part of the Act which has been cited to us is that of Talagapu Tavudu v. Zamindar of Tarla 32 Ind. Cas. 706. The learned Judges who decided that
case held that a finding of the Collector in the negative on the question whether the rent was payable by division or appraisement, would not
operate as res judicata so as to bar a subsequent suit for the determination of that question. If the Collector upholds an objection that the rent is not
payable by division or appraisement, Section 705(7) requires that he shall set aside the award. In that case there will remain a mere finding
between the parties without any final order having the effect of a decree, as in the present case.
For these reasons I consider that the lower Courts were right in holding that these suits are not maintainable and in dismissing them.
Another ground of appeal is that the suits were at least maintainable for the recovery of land-cess amounting to half an anna in the rupee. But this
ground was not taken in the memorandum of appeal to the District Court and cannot be advanced for the first time in second appeal. It is also
urged that the award was bad because it did not provide for a division of the sugarcane crops, but it appears from the plaint that no claim at all was
made under this head.
The result is that the appeals fail and are dismissed, Second Appeals Nos. 664 and 666 with costs and Second Appeals Nos. 663 and 667
without costs.
Krishnan, J.
The question for decision in these cases is, whether a landholder can maintain a suit against his tenant for a part of the arrears of rent alleged to
be due for a particular fasli u/s 77 of the Estates Land Act when an order has been previously passed by the Deputy Collector u/s 75, Clause 7,
regarding the rent for that very fasli. The lower Courts have dismissed the suits as not maintainable and I think they are right.
An order passed u/s 75, Clause 7, by an officer who has jurisdiction to do so is binding between the parties and settles what rent is payable for
the fasli, and by the terms of the clause has '' the effect of a decree for arrears of rent."" The landholder''s claim for rent becomes merged in the
decree. He must, therefore, execute the desree to recover his rent; he has no longer a cause of action for that rent or any portion of it to enable him
to base a suit on. If the order disallowed a portion of his claim, it is equally binding on him. The landlord, therefore, cannot maintain a suit ignoring
the previous order altogether, as he is attempting to do in these oases.
The ruling reported as Talagapu Tavudu v. Zamindar of Tarla 32 Ind. Cas. 706 was cited for the appellant, but that ease has no direct bearing
on the question here. There a finding arrived at by the Collector on a certain issue in proceedings u/s 75 was sought to be used as having the force
of res judicata on that issue between the parties in a subsequent suit. Their Lordships disallowed it and I entirely agree with their view. The
question here, as explained above, is entirely different, and has reference to the effect of the final order u/s 75.
It was not seriously denied by the appellant''s Counsel that an order u/s 75 would bar a subsequent suit for the whole or part of the same rent.
He, however, argued that the procedure adopted by the officer deputed under Clause (1) of Section 75 and by the Deputy Collector was so
erroneous that the final order should be treated as a nullity. I think this argument is entirely groundless. We are not now considering the correctness
of the Deputy Collector''s order ''in appeal or in revision: indeed we have no power to revise his order under the Act, the authorities that have the
power to do so u/s 205 being the District Collector and the Revenue Board. The order is pleaded in bar of the suit; the Court before which such
plea is raised has no power to examine the validity of the order on its merits. That principle is the very foundation of the doctrine of res judicata.
So authority is shown for the proposition that an order having the effect of a decree and passed with jurisdiction can be treated as a nullity if there
is an error in procedure.
The appellant''s argument fails on the facts as well: an examination of the procedure adopted u/s 75 does not in my view show that the Deputy
Collector or the Deputy Tahsildar committed any error. On receiving an application from the tenants u/s 74, the Deputy Collector deputed an
officer u/s 75, Clause (1) to make the division asked for. The landlord, it is true, made an objection subsequently that the ryots had cut and
removed half the crops clandestinely. The officer deputed rightly recorded that objection under Clause (2); he is not shown to have been bound to
decide it, He proceeded to divide according to the usual waram rate the crop that he found on the threshing-floor and it is not suggested that that
division was incorrect. He then delivered his award, and the landlord received his share under it. It is argued that this was a case ""where the parties
did not agree to the division and, therefore, under Clause (6), the officer should have estimated ^ the crop in the manner described in Section 73
(4). Such an estimation would have become necessary only if the landlord''s allegation about the removal of the crops had been established. The
landlord''s opportunity to prove his allegation was before the Deputy Collector under Clause (7) before the award was confirmed, as he had
already filed an objection on the point. But though the Deputy Collector waited for nearly two months and-though the landlord had notice to show
cause why his objection should not be rejected, he apparently took no steps. In these circumstances the Deputy Collector was right in confirming
the award as he did under Clause (7) of Section 75. The appellant''s argument, therefore, fails in my view both on law and on facts.
The other grounds of appeal referring to land-cess and sugarcane crops also fail for the reasons stated by my learned brother.
I, therefore, agree in dismissing these appeals as proposed.