The Secretary of State for India in Council vs Rajah of Venkatagiri

John Wallis, C.J.—This is an appeal from a decree of the District Judge of Nellore declaring that the defendant, the Secretary of State for

India in Council, is not entitled to resume or assess to public revenue inams or lakhiraj lands, other than village service inams enfranchised under

Madras Act II of 1994, within the Venkatagiri Zemindari, or to any reversionary right in such inams, and restraining the defendant and his officers

from holding any investigation into such inams and dealing with them under the Inam Rules or resuming and assessing them to public revenue. The

main questions in the, case were, whether these inams were included in the grant to the plaintiff''s predecessor by the sannad Exhibit C, dated 24th

August 1802, whether, if so, the grant was invalid as opposed to the provisions of Regulation XXV of l802, and lastly, whether in any case the

question was not res judicata in favour of the plaintiff. The circumstances which led up to the grant of the sannad Exhibit C are clearly stated in the

judgment of the District Judge and appear more fully from the report of Mr. Stratton, Collector of the Western Poligars Peishcnsh, dated 14th July

1801, (Exhibit B5) and the proceedings of the Special Commission (Exhibit B22) of the 12th August 1802, The proposals of the Special

Commission were accepted by Government and sannads were issued to the plaintiff''s predecessor and three other zemindars on 24th August

1802.

Briefly the facts were that the zemindars of Venkatagiri, Kalahasti, Bommarazupolliem (as the Karvetnagar Estate was then called) and

Sidapore had held their estates under the Nawabs subject to the payment of a light peishcush which, however, was liable to enhancement by the

exaction of nuzzers and subject to the further obligation of maintaining a large military force. The treaty with the Nawab of 1792, by which the

management of the revenues of the Carnatic was assigned to the Company, contained a provision restraining the Company from raising the

peishcush of these Poligars.

In Exhibit I, dated 4th September 1799, the Government of Madras addressed a letter to the Board of Revenue in which they announced their

intention of introducing a Permanent Settlement with the zemindars whcm it was intended to constitute proprietors of their estates as far as

practicable on the same principles as had been adopted in the Permanent Settlement of Bengal in 1793, and directed the Board to prepare the

necessary materials for effecting such settlements. On this, Mr. Stratton, then Collector of the Western Poligars Peishcush, presented to the Board

of Revenue a report, dated 14th July 1801, which supplied all the materials asked for the purpose of introducing the Permanent Settlement into

these four zemindaris and contained full information as to the various classes of inams to be found therein. These inams he divided into six classes,

two of which, the amaram and kattubadi, he stated were mostly held on conditions of military service and were resumable by the zemindar at

pleasure, while the others, which include those with which we are now concerned, were resumable only for sufficient reason (paragraph 13). It is

important to note that in paragraphs 94 and 95 he distinctly raised the question how such inams were to be dealt with. This report was considered,

not by the Board of Revenue, but by a Special Commission presided over by a member of the Government, which in Exhibit B22, dated 12th

August 1802, submitted proposals to the Governor-in-Council for the settlement of these zemindaris. They began by showing that the existence of

the military dependants of the zemindars was incompatible with the introduction of order and civil Government (paragraph 16) and proceeded to

submit a proposal for the commutation of the military service on lines laid down in paragraph 31 and the following paragraphs. In the case of

Venkatagiri the addition of the military expenses of the zemindar would have increased the peisheush from pagodas 21,673 to pagodas 1,48,996;

but as the zemindar would not be able at once to avail himself of the revenues from the amaram and kattubadi lands which had been granted on

military service, it was proposed to fix the total payment in respect of peishcush and military contribution at pagodas 1,20,000 and to reduce this

still further to pagodas 1,11,508 as compensation for the revenue arising from sayer, spirits and salt which it was the intention to retain under the

administration of the Company. The future peishcush was thus arrived at by taking the old peisheush, pagodas 21,673, and adding a'' contribution

for the abolition of military service. This, as pointed out in paragraph 37, was very different from the system generally adopted of fixing the

peisheush at two-thirds of the gross revenues of the zemindari, which would have increased the future peisheush to pagodas 1,62,840. The

proposals of the Special Commission thus covered the case of the amaram and kattubadi inams, but said nothing as to the other classes of inams to

which Mr. Stratton had called attention. It may, however, be taken that if the Special Commission had considered that these inams ought to be

reserved they would have said so. The Government of Madras in Exhibit E, dated 24th August 1802, adopting in full the proposals of the Special

Commission resolved that the military services of the Western Poligars should be commuted for an equivalent in money and that the amount of the

equivalent should be as proposed by the Special Commission. Effect was given to the decision of Government in the four sannads which were

drawn up bearing the same date, and it is on the construction of these sannads that the question before us very largely turns.

The sannad in paragraph 3 fixed the annual contribution of the zemindar, including the equivalent for the military service and the established

peisheush, at pagodas 1,11,058, which was declared never to be liable to changes under any circumstances and to be the permanent annual

demand of Government on your zemindari."" The permanent peisheush was declared to be exclusive of the revenue for salt, sayer and abkari,

exclusive of all lands and russums heretofore appropriated to the cost of the Police establishment."" In paragraph 14 it was stated that the foregoing

conditions contained an abstract of the obligations and duties of the grantee and the rights which he had acquired; and in paragraph 15 the grantee,

his heirs, successors and assigns continuing to perform the above stipulations and to fulfil the duty of allegiance were authorised to hold the

zemindari of Venkatagiri at the permanent assessment mentioned in the sannad. The inam lands in question in this suit form part of the zemindari,

and not having been excluded, as were the Police lands, appear to me as a matter of construction to have parsed under the grant, and I think that,

subject to the rights of the inamdars, the zemindar is entitled to hold them under the terms of the grant, subject to the payment of the permanent

peishcush, and that Government has no right to levy any fresh assessment in respect of them. I may mention that in the judgment, Exhibit U2, of Sir

Charles Turner, C.J., and Muthusawmi Aiyar, J., in Second Appeal No. 974 of 1881 it was held with reference to one of the other sannads issued

on the same day and in identical terms that inams of this nature are resumable by the zemindar.

There is also every reason to believe that the omission to reserve these inams in the sannad was deliberate, Mr. Stratton''s proposals must have

been under consideration of the Special Commission presided over by a member of the Madras Government at the same time that the provisions

of the Permanent Settlement Regulation, Regulation XXV of 1802, were under the consideration of the Madras Government, which passed it on

July 13th, some six weeks before the issue of the sannad. As regards the reserved articles of revenue, Section 4 followed closely the provisions of

the Bengal Regulation of 1793, but whereas Section 8, Article VII(3), of the Bengal Regulation, printed in Exhibit 1, only reserved ''lands at

present alienated and paying no public revenue which have been or may be proved to be held under illegal and invalid titles,"" in Madras Regulation

XXV of 1802, Section 4, the reservation is made, not only as regards these lands under the name of ""lakhiraj lands or lands exempt from the

payment of public revenue"", but also as regards all other lands paying only favourable quit-rents"", words which cover the inams now in question.

Though the sannad does not in terms allude to Regulation XXV of 1802, yet the similarity of the provisions of the sannad and of the Regulation and

the close correspondence between the language of Section 5 of the sannad relating to reservations with that part of the Regulation, Section 4,

which deals with the reservations in question, make it clear to my mind that the framers of the sannad had the provisions of the Regulation before

them; and this is made even clearer by reference to Exhibit SSI, the sannad issued to the zemindar of Bangarupalayam, on the same day, in which,

though Regulation XXV of 1802 is not expressly referred to, the language of the reservation clause closely follows the language of Section 4 of the

Regulation and expressly reserves lakhiraj lands and lands held on favourable quit-rent, the quit-rent of which is alone included in the settlement.

The correspondence which passed at the time of the grant, Exhibits D, E, F and B1, suggest that this exceptional method of dealing with these

four zemindaris was dictated by reasons of policy, as the Government were anxious to secure by peaceable means the disbandment of the military

forces of the zemindars at the earliest opportunity, and Exhibit Bl, the report of the Special Commission in the following month, shows the great

satisfaction which was felt when this was accomplished.

It is then said that supposing this to be the effect of the sannad, it was opposed to the provisions of Regulation XXV and so invalid. In answer to

this it was contended that it is not shown that Regulation XXV of 1802 was in force when the sannad was issued. In Clarke''s Regulations it is

stated to have been passed on the 13th July 1802, but it is contended that that only means that it was passed by the Madras Government on that

day, and that it did not come into force until it was promulgated, which I suppose means published. The Regulation was made by the Governor-in-

Council under the powers conferred upon him by 40 Geo. III, C. 79, Section 11, to make regulations for the Provincial Courts and Councils in the

same manner as had been provided by 37 Geo. III, C. 142, Section 8, for Bengal. This power must be distinguished from the power to make

regulations for the Presidency Towns affecting the law administered in the Supreme Court, which was conferred in Bengal by 13 Geo. III, C. 63,

Section 36, and in Madras by 47 Geo. III, Sections 2, C, 68, Section 1, both of which required the Regulations to be approved by the Supreme

Court. Power to make Regulations for the Provincial Courts and Councils without the approval of the Supreme Court was expressly conferred in

Bengal by 21 Geo. III, C. 70, Section 23, and recognized in 33 Geo. III, C. 52, and in the exercise of these powers a body of Regulations was

framed in Bengal, one of which, Regulation XLI of 1793, prescribed the method in which Regulations should be made and passed. The main

provisions of this Regulation were embodied in the Act of 37 Geo. III, C. 142, Section 8; the provisions of which were made applicable to

Madras by 40 Geo. III, C. 79, Section 11, and under the powers so conferred the first thing the Madras Government did was to reproduce

Bengal Regulation XLI of 1793 as Regulation 1 of 1802, u/s 8 of the Act of 37 Geo. III, C. 142, the Regulations were to be registered in the

judicial department and formed into a regular Code and printed with translations, and all Provincial Courts were required to regulate their decisions

by such Regulations.

By Regulation I of 1802 passed under these powers, the Regulations were to be recorded in the judicial department and then framed into a

Regulation and printed and published as thereafter directed. I do not think the conditions imposed by the Act of 1797 were intended to be

conditions precedent to the coming into force of the Regulation, as, if that had been the case, Parliament would have said so explicitly as in the

Acts of 1773 (13 Geo. III, C. 63, Section 36) and 1807 (47 IGeo. II, Section 2, C. 68, Section 1).

As regards Regulation XXV of 1802, it seems to mo to be the proper inference that the provisions of Regulation I of 1802 as to recording it in

the judicial department and framing it into a Regulation were complied with before it was passed, because I take it that it was passed as recorded

on July 13th, 1802, in its present form, which is that of a Regulation. As regards the other provisions as to printing and distribution, I do not find

anything in Regulation I which postpones the coming into force of a Regulation until they have been complied with. A reference to the Bengal and

Madras Regulations passed under the Acts already mentioned shows that the date on which the Regulation was passed is set out in each case in

the heading, and that ordinarily there is no provision in the body of the Regulation as to when it was to come into force; and, whereas the date of

passing is given in each case, the authorised editions of the Regulations do not assign any date of promulgation as distinct from passing. The

inference appears clear to ray mind that the Regulations were intended to come into force, unless it was otherwise provided, as from the date of

passing. The case of D'' Souza v. Wronghton (1827) 4 Beng. S.D.A. 225 did not decide that a Regulation only came into force when

promulgated, but that the provisions of a particular Act of Parliament limiting the jurisdiction of the Court of Requests as regards military officers

did not apply to cases before the passing of Bengal Regulation XX of 1825 which promulgated those provisions. It must, therefore, be taken that

Regulation XXV of 1802 was in force on the 24th August 1802 when the sannads were issued.

Here I may observe that both the District Judge of Nellore and the Subordinate Judge of Chittoor, in the case which is the subject of another

appeal (Appeal No. 138 of 1913), have held that the provisions of Regulation XXV of 1802 do not apply as the sannad was not issued under that

Regulation. It is quite true that the Regulation is not mentioned, but if it had come into force, as I have held, at the date when the sannad was

granted, it seems to me that its provisions as far as applicable were binding on Government and that it had no power to disregard them and tins,

though it was the same body, the Governor-in Council, that passed the Regulation and issued the sannad, as Regulation made by Government

under statutory authority in its legislative capacity, would be binding on it in its executive capacity.

This brings us to the most important question in the case whether, supposing the terms of the sannad to be clear, Government is at liberty to

disregard them on the ground that they are in contravention of the provisions of Regulation XXV of 1802, Sections 4, 12 and 13. In view of the

recognition for nearly a century of the rights which are now challenged I think this objection should be very clearly made out. It is said in the first

place that Section 4 restricts Government from alienating any of the reserved articles of revenue therein mentioned. The section, however, merely

recites that Government had reserved these articles of revenue, and provides that the permanent assessment of the land tax should be made

exclusively of them. I do not think that it was intended by this section in any way to restrict the full power of alienating all classes of land revenue

which Government had under the treaty of cession with the Nawab and the provisions of the Act of 1793, by which the government and

administration of the Presidency were vested in the Governor-in-Council. The section appears to me to have been enacted alio intuitu and like

some other parts of the Regulation to be largely declaratory and explanatory of the position which the zemindars were to occupy under the sannads

that were to be granted to them. In paragraph 14 of the present sannad it is stated that it contains an abstract of the obligations and duties of the

grantee and of the rights he had acquired, and this, I think, correctly describes the object with which the Regulation was framed and the sannads

issued. This accounts for the express reservation in Section 4 and in the sannads of salt and saltpetre, sayer, abhari and profession taxes. These

reservations were not legally necessary, as a right to levy these taxes would not pass under the sannads granted in this or other cases, as held with

regard to one of these sannads in Vedanta v. Kanniyappa 9 M.P 14 where it was held by the Full Bench that the settlement effected under the

Regulation was a settlement of land revenue and not of taxes such as moturfa, etc.

As, however, zemindars had been accustomed to levy them it was thought right to make it plain that they had been reserved, and it was

considered necessary to do the same with regard to particular articles of land revenue which it was proposed to reserve, and to enact as to all of

them that the permanent assessment of the land tax should be made exclusively of them. This seems to me to amount to a provision that the

reserved articles of revenue should not be taken into account in arriving at the amount of the land tax which the zemindar was to pay, and not to

mean that these articles were not to be taken into account when they were not reserved but granted to the zemindars. In the case of the present

sannads it is admitted that the amaram and hattubadi inams, which come within the provisions of Section 4 equally with the inams now in question,

were granted to the zemindar, and it is also clear that they were taken into account in the permanent assessment of the land tax, but it has not been

suggested that this involved any contravention of the provisions of Section 4. Full effect may, I think, be given to Section 4 by holding that it was

not intended to affect the power of Government to alienate the reserved articles, if so minded, but only to secure that the zemindar should not be

assessed on what was not granted to him. It may, no doubt, be said that this follows from the reservation, but it must be remembered that the main

object of passing the Regulation in this form and issuing the (sic) was to make things plain to the zemindar and to guard against any sort of

misunderstanding, however unreasonable. In this view the effect of Section 4 was to obviate misunderstandings and to enable the zemindar to

object to the reserved articles being taken account of in fixing his peisheush. It cannot, I think, have been the intention of the Governor-in-Council

in his legislative capacity to pass a self-denying ordinance depriving himself of the power which he possessed to deal with the reserved articles of

revenue in such a manner as might be necessary in the public interest. At the time the Regulation was passed, Government, one of whose members

was on the Special Commission, must have been aware of Mr. Stratton''s proposal that amaram, and hattubadi inams should not be reserved in the

case of these zemindaris. I cannot think that in enacting Section 4 Government intended to debar itself from giving effect to this proposal, or that

when it did so shortly after the passing of the Regulation it considered that it was infringing the law which it had just enacted.

Similarly I think that the provisions of Sections 12 and 13 prohibiting the zemindar from resuming, or fixing a new assessment on certain classes

of inams without the consent of Government, and providing for the imposition of a fresh assessment on the zemindar where such assent was

granted, must be construed as confined to cases in which, pursuant to the policy enunciated in Section 4, these inams had been reserved and not

taken into account at the settlement of the land tax. These sections provided a procedure by which these reserved inams could be resumed by the

zemindar and included in the zemindari in consideration of ah addition to the peishcush payable by the zimindar and are, I think, inapplicable to

cases where Government had not reserved but parted with its right to these items of land revenue in favour of the zemindar. They proceed, in my

opinion, on the footing that the land revenue in question had been reserved and was at the disposal of Government, and were not intended to apply

to cases where Government had parted with the right, so as to enable it to derogate from its grant. The question of the effect of Sections 12 and 13

has an important bearing on the case, as it is in respect of inams of the nature mentioned in the sections that a declaration is sought. The result of

holding them applicable would be not to entitle Government to resume the inams but to prevent the zemindar from resuming them without the

consent of Government, and to make him liable to be assessed on them when resumed.

The next question is whether the case is res judicata by virtue of the decree of the Provincial Court of Nellore in Original Suit No. 13 of 1818,

Exhibit G. That suit was brought by the Collector on behalf of Government against the Zemindar of Venkatagiri for the recovery of two villages in

the zemindari which the defendant had sequestered"", which the context shows means resumed. The inams in question appear to have been of the

character specified in Section 12 of the Regulation. It was averred in the plaint that the accounts showed that these villages were excluded when

the kist, that is to say, the permanent assessment was fixed; that there were sannads to prove that they were regularly exempted lands not included

in the jumma of the Yenkatagiri Zemindari; and that the zemindar had consequently no right to sequester them. For the defence it was alleged that

the claim was contrary to the Regulation and the permanent sannad and that the lands had been property resumed by the zemindar.

The Court were of opinion that the cause of action wa3 not distinctly laid, as the terms under which the villages had been granted by the

defendant''s father were not set out, nor had the sannad granting them been produced in Court. In the absence of this sannad they considered that

there was not sufficient evidence to prove that the villages sued for were granted under an invalid title or that they were illegally resumed by the

defendant.

They proceeded to observe that the defendant had filed his sannad from Government, the one now in question, and other documents which

were more than sufficient to invalidate the plaintiff''s claim and after considering these documents concluded as follows:--""in the opinion of the

Provincial Court the reservation to Government of the right of resuming lahkiraj lands having been also specially omitted in the permanent cowle

(the sannad) granted to the defendant, the plaintiff has no right whatever to the two villages sued for, and the Court accordingly disallow his claim,

dismiss his suit and award that he shall pay all costs as follows."" Thus the suit was expressly dismissed on the ground that Government had no right

whatever to the two villages by reason of their being lakhiraj once. The question clearly raised by the suit was whether lakhiraj villages were

reserved to Government, and the decree was that they were not and that Government had no right whatever to the villages sued for. This appears

to me to be a decision that the revenue of lakhiraj villages generally was not reserved to Government under the sannad and that Government had

no right to resume them.

The objections have been taken in the lower Court and here as to this issue being to any extent res judicata. It is said that the suit was

dismissed on two grounds and that, therefore, neither of these grounds is res judicata. I agree with the District Judge that the substantial ground on

which the suit was dismissed was that Government had no right to the lands; and that even if the suit was decided on two grounds that would not

dispose of the plea of res judicata. This is in accordance with the decision in Peary Mohun Mukerjee v. Ambica Churn Bandopadhya 24 C.P 930

which was followed in Mallisheri Ileath Vasudevan Nambudin v. Kovoor Chathath Kannan Nambiar 4 M.L.T. 90. Lastly, it is said that the

decision was not res judicata because it was erroneous in law, and Parthasaradi Ayyangar v. Chinnakrishna Ayyangar 5 M.P 304; Venku v.

Mahalinga 11 M.P 393; Mangalathammal v. Narayanswami Aiyar 30 M.P 461 : 17 M.L.J. 250; Natesan Chetty v. . Vengu Nachiar 3 Ind. Cas.

701 33 M.P 102 : 20 M.L.J. 20 : 6 M.L.T. 313 and Baij Nath Goenka v. Pudmanand Singh 14 Ind. Cas. 124 : 16 C.L.J. 154 were cited. On the

other side we were referred to Aghore Nath Mukerjee v. Kamini Debi 6 Ind. Cas. 554 : 11 C.L.J. 461 where the. question is elaborately

discussed by Mookerjee, J., and to Mohamaya Prosad Singh v. Ham Khelawan Singh Thakur 15 Ind. Cas. 911 : 15 C.L.J. 684 and Badar Bee

v. Habib Merican Noordin (1909) A.C. 615 : 78 L.J.P.C. 101 : 101 L.T. 161 where it was held that where a Will had been construed in a suit

between the parties, that construction, even if erroneous, was binding on them in a subsequent suit relating to property not involved in the original

suit. Following this decision, I do not think that the decision of a competent Court on such a question as the right of Government to resume inams in

zemindaris, which involves so many considerations, can be said not to be res judicata on the ground that it is erroneous in law. In Mohamaya

Prosad Singh v. Earn Khelawan Singh Thakur 15 Ind. Cas. 911 : 15 C.L.J. 684 the question was as to the effect of a parwana or sannad in the

light of the Bengal Regulations and it was held that a decision on this point in a previous suit, even if erroneous, would be res judicata between the

parties.

The appeal is dismissed with costs payable in three months.

Phillips, J.

I agree with the learned Chief Justice in the conclusions at which he has arrived and need add but little to what he has said. From the

correspondence that took place before the issue of the sannad (Exhibit C) to the plaintiff''s pre-deeessor-in-title, I think it is quite clear that

Government was not effecting a mere Permanent Settlement of land revenue, but was acting with an eye to the political situation. The zemindar of

Venkatagiri was a powerful neighbour, who commanded the services of a considerable number of military retainers, and when it became necessary

to abolish this military service Government had to consider carefully the action to be taken. As a result of careful enquiries, it was decided to

enhance the zemindar''s peishcush, because in future he would be relieved of his obligation to furnish troops and the consequent expense, but the

enhancement ordered was considerably less than the whole cost of the military establishment. A further deduction was made on account of the

reservation by Government of the revenue arising from ""sayer, spirituous liquors and salt."" This reservation is clearly set out in the sannad, but

inams are not reserved. Admittedly two classes of inams, amaram and kaltubadi, were granted to the zemindar and his right to resume these has

not been disputed.

Mr. Stratton in his report (paragraph 94 of Exhibit B5) distinctly raises the question of reserving the other inams, and consequently the

omission to reserve them in the sannad must have been deliberate. From the calculation adopted in fixing the final peishcush it is clear that the

peishcush was not fixed with reference merely to the assessment. The former fixed peishcush, which was very small, was merely enhanced by a

portion of the military expenses of which the zemindar would in the future be relieved, This, I think, shows that the settlement partook somewhat of

a political character and was not merely based on a consideration of revenue.

The only question that raises any difficulty in this case is whether Government, in issuing a sannad which included the grant of the inams, acted

ultra vires by reason of the provisions of Regulation XXV of 1802. In Section 4 of that Regulation it is recited that Government had reserved to

itself the entire exercise of its discretion in continuing or abolishing, among other things, the revenue included under the head of lakhiraj lands and all

other lands paying only favourable quit-rents, and that consequently this source of revenue and others should be excluded in making the permanent

assessment of land tax. This appears to me to be a provision protecting the interest of the zemindar, in that it debars the Government from

calculating land-tax on certain articles of revenue. I can see nothing in the section which debars Government from exercising its sovereign right to

make a grant of lakhiraj lands. Government by the Regulation reserved to itself the right of abolishing or continuing such a source of revenue, but it

did not debar itself from making a grant of such revenue. It was obviously the intention of Government to grant the in ams to plaintiff, for otherwise

the reservation would have been made, as was done in the case of other sannads issued at the same time. There is yet a further question whether

under Sections 12 and 13 of the Regulation plaintiff is precluded from resuming inams except with the consent of Government, and under certain

conditions. These sections are more definite than Section 4 and I have some doubt as to whether they are applicable here, but on careful

consideration I agree with the learned Chief Justice''s conclusion that these sections are only applicable when inams have been reserved by

Government in accordance with Section 4. This appears to be the only reasonable interpretation, for otherwise the zemindar would be unable to

resume them without the sanction of Government, and would thus be in much the same position as regards these inams, whether they had been

granted to him or not. The provisions of these two sections are not, therefore, applicable to plaintiff''s grants. 1 am strengthened in this opinion by

the admitted rights of the zemindar in regard to the amaram and katttubadi inams. Plaintiff''s contention that the inams had been granted to him was

upheld by the Provincial Court in 1882, and no appeal was filed by Government, apparently because it was then realised that such a grant had

been intended to be made, as appears from Exhibit K, a letter from the Board of Revenue to Government in 1823.

Government having acquiesced in this interpretation of plaintiff''s rights for over 80 years, I should like to be very clearly satisfied that the grant

was ultra vires before accepting such a conclusion. In the view, however, that 1 take of Section 4 of Regulation XXV of 1802, lam not at all

satisfied that the grant is ultra vires. The decision in Vedanta V. Kanniyappa (1827) 4 Beng. S.D.A. 225 that the zemindar could not levy

muhtarafa, although it was not specially excluded in his sannad, does not help us much in this case, for the Judges who decided that case were very

careful to distinguish muhtarafa (which is a tax) from land revenue.

As regards the question of res judicata it appears from the judgment of the Provincial Court that Government''s suit to set aside the resumption

by the zemindar of the villages of Poodi and Periavattam was dismissed on the ground that the reservation to Government of the right of resuming

lakhiraj lands having been also specially omitted in the permanent cowle granted to defendant (i. e., the zemindar) the plaintiff (i. e., Government)

has no right whatever to the two villages sued for"". This is a distinct finding as between the two parties that Government had no right to two specific

lakhiaj villages in plaintiff''s zemindari on the ground that they had been granted to the zemindar. These two villages are included in the present

plaint schedule A, and it is not suggested that they stand on a different footing to the other suit inams. The right of Government to resume the plaint

inom lands is, therefore, res judicata between the parties. The question of whether a prior decision can be ignored as res judicata, because it is

erroneous in law, has been elaborately discussed by Mookerjee, J., in Aghore Nath Mukerjee v. Kamini Debi 6 Ind. Cas. 554 : 11 C.L.J. 461

and I agree with his conclusion that it is only decisions on questions of pure law that can be so treated vide also Mohamaya Prosad Singh v. Ram

Khelau an Singh Thahur 15 Ind. Cas. 911 : 15 C.L.J. 684. In this case the question is one of mixed law and fact and consequently I hold that it is

res judicata.

I accordingly concur in the order proposed