1. The appellant was the owner of five and odd vritties in Jodi Hulisandur village in Turuvekere Taluk. The vritties were sold in a revenue sale for arrears of land revenue and the defendant-respondent, who was another vrittidar in the village, purchased them. The appellant filed applications before the revenue authorities but the sale was not set aside. He thereupon filed two suits. In O. S. No. 457 45-46 on the file of the Second Additional District Judge, Bangalore, he prayed that the revenue sale may be set aside on the ground that no land revenue was due justifying the sale and that even otherwise it was vitiated by fraud. In O. S. No. 27 of 1946-47, on the file of the Second Additional District Judge, Bangalore, (originally No. 589/43-44 on the file of the Subordinate Judge. Bangalore), he contended that the revenue sale, even if valid, does not affect his permanent tenancy rights. He prayed for a decree declaring that he has permanent tenancy rights in the land and granting permanent injunction to restrain the defendants from taking possession of the land, The defendant pleaded that the plaintiff, has no such permanent tenancy rights & that even if he had any such rights, he has lost them as a result of the revenue sale. It was also contended that the defendant who is the purchaser in the revenue sale has been put in possession of the property by the revenue authorities and that the suit, as brought for mere declaration and injunction is not maintainable. The plaintiff-appellant failed in both the suits. He filed appeals against these decisions in this Court.
2. R. A. No. 157 of 46-47 was against the decision in O. S. No. 45 Of 45-46. In that case though no fraud was made out, it was contended that the revenue sale was without jurisdiction as no land revenue was due. On a remand for a finding on this point, the learned District Judge, on further enquiry found that arrears of land revenue necessitated the sale of the vritti of the plaintiff. In view of the fact that arrears were really due, it was held in R. A. No. 157 of 46-47 that the dismissal of the suit in O. S. 45 of 45-4S was correct.
3. R. A. No. 25 of 47-48 is the appeal filed against the decision in O. S. No. 27 of 46-47 which, has been dismissed. This case had also been remanded for a finding as to the plaintiff having any permanent tenancy rights. The learned District. Judge has come to the conclusion that the plaintiff-appellant Had at no time permanent tenancy rights and that his five and odd vrithies in the Jodi village have been sold for arrears of land revenue. The point for consideration in this-appeal is whether any rights of plaintiff remain unaffected by the revenue sale.
4. Though there has been some dispute about the question as to whether the plaintiff has permanent tenancy rights, it was clear from the arguments in this case that there is really no difference in what both parties mean, on this aspect of the matter. The plaintiff has neither proved nor attempted to prove that he has any permanent tenancy rights in any land other than the lands of his Vritti. What the plaintiff means, when he says that he has got permanent tenancy rights in the lands of his vritti, is that he has the right to cultivate the lands, raise crops and take entire produce, subject of course to the payment of his share of the Jodi to Government. It is not denied that prior to the revenue sale, the plaintiff had the right to cultivate the lands of his vritti and to create permanent tenancies in respect of them; but it is contended that he cannot be said to be a tenant of himself and as such he cannot claim to have permanent tenancy rights. It is urged that all his rights including the right to cultivate his lands are lost by virtue of the revenue sale under section 54 of the Land Revenue Code.
5. Section 54 of the Land Revenue Code is one of the most important sections of that Code and it has been the subject-matter of interpretation in a number of cases in this Court, it has been amended more than once and the Section as it now stands lacks clarity and precision. It is long and involved and has to be read more than once before Its exact meaning becomes apparent. Before, however, analysing the section it is necessary to clarify what rights a Jodidar has in a Jodi village. The word 'alienated' as defined in the Land Revenue Code means :
'transferred in so far as rights of Government to payment of the rent or land revenue are concerned, wholly or partially, to the ownership of any person.'
Whenever a village was alienated by a Ruler of the State, it might have been either a village in which there were no ryots at all or a village in which some of the lands were owned by ryots subject to payment of land revenue to Government, while the other land remained unoccupied. In cases in which there were no ryots or occupants, the alienee or the Jodidar got, subject only to the payment of a fraction of the land revenue known as Jodi, the right to cultivate all the lands. He can in such cases either retain all the lands for himself subject to the payment of the Jodi or he can create permanent tenancy rights. In such cases, the persons acquiring such rights have got a right to cultivate the land subject to payment of rent to the Jodidar. They cannot be disturbed from their possession and they can alienate their rights. The Jodidar collects the rents from permanent tenants to whom he has alienated the rights to cultivate the land and enjoys the rights to be in possession of other lands. But in both cases his right is subject to the payment of Jodi to the Government in cases in which there were ryots already cultivating the lands subject to payment of Kandayam to Government when the villages were alienated the Jodidar got the right to collect Kandayam, but he has no right to be in possession of the lands or to oust the kadim tenants so long as they pay the rent due to him. The Jodidar got the right to be in possession of other unoccupied lands in the jodi village and in those cases he can of course if he wants to, create permanent tenancy rights, sell or mortgage his rights, and he can also lease the lands on a temporary basis. It is in this sense that it could be said that there are :
'tenures, rights, Incumbrances and equities created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder,'
as stated in Section 54 of the Land Revenue Code. The rights of Kadim tenants are rights subsisting against a holder, while the rights created by the Jodidar or his predecessor-in-title in favour of permanent tenants can be said to be rights created by the holder or any of his predecessor-in-title as stated in Section 54 of the Land Revenue Code.
6. Section 54 of the Land. Revenue Code is as follows :
'Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened or anything attached to the land liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrear by sale of the occupancy or alienated holding or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall, unless the Deputy Commissioner otherwise directs be deemed to be freed from, all tenures, rights, in-cumbrances and equities therefore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder, but so as not to affect the rights of Kadim tenants or permanent tenants in alienated holdings.'
The words, 'but so as not to affect the rights of Kadim tenants or permanent tenants in alienated holdings' were added by Section 2 of Act II of 1928. Leaving these words for consideration at ft later stage, it is necessary to analyse what is stated in Section 54. In the first place the section says that land revenue is a permanent charge on the holding and every part thereof. In the second place it states that failure to pay land revenue shall make the occupancy or alienated holding, liable to forfeiture. In the third place it is made clear that the Deputy Commissioner after the forfeiture of the occupancy or alienated holding may realise the arrears or land revenue by sale of the occupancy or alienated holding, or may otherwise dispose it off. Fourthly, the Section states that on such sale or disposal unless the Deputy Commissioner otherwise directs, the occupancy or alienated holding should be deemed to be freed from all tenures or other rights created by the occupant or the holder or by his predecessors or subsisting against them.
7. It will be noticed that there may be two kinds of rights in a Jodi village. As stated by Nagesvara lyer, J., in 50 Mys H C R 336 at p. 345 : 'The entire village, it is needless to say, consists both of the rights possessed by the vrittidars and the rights possessed by the persons who might have occupancy rights in the agricultural lands in that village. In respect of lauds in which the tenants hold Kadim or permanent tenancies the only right which the inamdars have, is to collect the assessment thereon. They have BO right to possession of lands.' The main point for consideration in most of the cases in which a Jodi village or some vrithies therein.are sold by the Deputy Commissioner for recovery of land revenue under Section 54 as in this case, is to what extent the sale has affected the rights of the Jodidar, who has committed default in payment of Jodi and what effect it has on the rights of the innocent kadim tenants or permanent tenants, who are in no way responsible for the sale. The analysis of the section as it stood prior to 1928 makes it clear, that nothing comes in the way of the Deputy Commissioner directing forfeiture of the rights of the defaulting Jodidar as well as the rights of the permanent tenants and Kadim tenants and to sell both of them, in order to realise the arrears of land revenue, as land revenue is a paramount charge on the alienated holding itself. In such a case, it is clearly stated in the Section that the alienated holding is freed from all tenures, created by the holder or his predecessor-in-title or subsisting against them. In other regards for the default of the Jodidar in paying the Jodi, the entire holding including the rights of kadim tenants or permanent tenants in the alienated holdings could have been taken away under Section 54 of the Land Revenue Code as it stood prior to its amendment in 1928.
8. This, however, did not mean that the Deputy Commissioner should necessarily order the forfeiture of the rights of the Jodidar as well as the rights of Kadim tenants. As pointed out in 'Nagaraja v. Dodda Venkata Gowda', 46 Mys HCR 325:
'It is clear that it was not the intention of the Legislature that every forfeiture should be pressed to the extreme limit possible in the way that has been suggested. The amended section leaves the power of forfeiture as it was before. It leaves the whole holding of the immediate defaulter liable to forfeiture and the rights of those deriving title from him liable to forfeiture also. But it provides that. If the Deputy Commissioner BO directs, when what is forfeited is put up to sale, it may be only the immediate defaulter's rights and not the rights of those deriving title from him. Now, if we are to suppose, as is contended for the plaintiffs, that in every case in which there is forfeiture at all it must be forfeiture of all rights in the land concerned, not only those of the immediate defaulter but also of those holding title under him, and the Deputy Commissioner then exercises the discretion allowed to him by the amended Section ot directing that what is to be sold is only the right, title and interest of the immediate defaulter, what is to become of the rights of those deriving title from him, which according to the argument Of the plaintiffs must also have been forfeited? According to that interpretation of the Section those rights, unless the Government retain them, which can hardly be intended, either evaporate or are wiped out, and the Deputy Commissioner's direction that the sale is subject to those rights is of no effect. I think, if we look at the section in that way, we shall see that it clearly implies that it is not necessary that all rights in the laud concerned must be forfeited : it is possible for the Deputy Commissioner to forfeit only part of the rights liable to forfeiture, and, if he thinks fit, he may forfeit only the right, title and interest at the time of the Immediate defaulter.'
It is thus made clear that it was left to the discretion of the Deputy Commissioner to order forfeiture of all the rights of the Jodidar as well as those oi the permanent and kadim tenants or to direct the forfeiture ot the rights of only the Jodiaar. He had also the discretion to sell only the rights of the Jociidar even in case the entire rights oi the Jodidar as well as the rights of the ' permanent and kadim tenants had been ordered to be forfeited. Thus, the rights of kadim tenants and permanent tenants, who are innocent could have been protected by the orders of the Deputy Commissioner in suitable cases. But in practice the Deputy Commissioners in their anxiety to recover the land revenue used to direct the sale of the entire holding and the result was that it happened in many cases, the rights of innocent kadim tenants and permanent tenants were lost. It was also possible for unscrupulous Jodidars to allow arrears oi land revenue to accumulate so that the entire holding freed from all the rights of kadim and permanent tenants be sold and purchased in the name of an obliging benamidar. in order to safeguard the interest of those tenants created by the Jodidar or his predecessor-in-title or subsisting against them at the time of the sale, the Legislature thought it fit in 1928 to add the words; ''But so as not to affect the rights of Kadim tenants or permanent tenants in alienated holdings'.
9. As regards the effect of a revenue sale on the rights of persons other than jodidar in a jodi village, it will ue seen that the rights of permanent tenants created by Jodidars or their predecessors-in-title or the rights of kadim tenants subsisting against them are not affected as is clear from the amendment. It is equally clear that the rights of other persons such as mortgagees, tenants who are not kadim and permanent tenants are affected as the :
'alienated holding when disposed of.... by sale., shall be deemed to be freed from all tenures, rights, incumbrances and equities therefor created by the holder or any of his predecessors-in-title or in anywise subsisting against such holder, but so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings.'
10. The next question that has to be ascertained is to what extent the rights of the Jodidars is affected. It will be noticed, as already observed, that the jodidars have the right to collect Kanda-yam from kadim tenants and permanent tenants and in case of lands not in the possession of such tenants to cultivate the lands or to lease them to other persons. It is not disputed that the right to recover jodi from permanent tenants and kadim tenants is lost on a revenue sale. As regards the rights of the Jodidar to possession of the lands in the jodi village not in the possession of permanent or kadim tenants, it is argued on behalf of the appellant that the right to be in possession is not lost and the effect of the sale is that the jodidars are entitled to be in possession of the lands subject to the payment of full kandayam. The argument put forward is that the right of a Jodidar in possession of lands in a Jodi village consists of what may be termed as permanent tenancy rights subject to payment of full kandayam and the right of the Jodidar to beep a portion of the kandayam and pay the balance as Jodi. It is argued that the amendment takes away the right of the Deputy Commissioner to sell the Jodi village free from permanent tenancy rights of Jodidar and that the effect of the revenue sale is to reduce the Jodidar to the position of a permanent tenant.
11. The argument looks plausible at first sight but a careful examination of the section as amended makes it clear that no right of the defaulting Jodidar is saved by the amendment from the effect of a revenue sale, for default of payment of land revenue due by him. In the first place what is not affected by the revenue sale according to the amendment is 'the rights of Indian tenants or permanent tenants in alienated holdings.' It is not stated that permanent tenancy or kadim tenancy rights are not affected. Even if a Jodidar can be said to have permanent tenancy rights in the lands of his Jodi village if he is the owner of the Jodi village or in his vritti or share of the Jodi village in case he is only the owner of a vrithi, the amendment does not state that any such rights of the jodidar remain unaffected by the sale. On the other hand, the persons whose rights are not affected are mentioned. The rights of some kinds of tenants are stated to remain unaffected and the right of no other person such as a Jodidar are stated to come under the exception made in the amendment.
12. As observed in 6 Mys L J 528 :
'There is no presumption in law that the grant of Inam by a Native Ruler conveyed only Melvaram (revenue due to the State) and not both the Melvaram and Kudivaram rights and each case must be decided on its merits: As regards lands in Inam villages in Mysore the division of such interests as rights in respect of revenue and those in respect of the soil does not exist; the lands comprised in the village are absolutely at the disposal of the Inamdar and he is at liberty to create fresh rights in them or retain the whole of the lands in his possession unless some others had previously acquired rights of occupancy either by law or custom.'
It is not the plaintiff's case that the original grant was only of Melvaram rights and he later acquired Kudiaram rights. No division in the rights of a Jodidar can be recognized and even otherwise none of his rights are saved under the amendment.
13. Section 54 as it stood in Regulation IV of 1888 and as it stood after it was amended in Regulation VIII of 1916 are given here side by side for comparison :
Section 54 of Regn. IV of 1888.
Arrears of land revenue due on account of land by any land-holder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the land, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrear by sale of the occupancy or alienated holding, freed from all tenured, encumbrances, and rights created by the occupant or holder or any of his predecessors-in-title or in any way subsisting as against such occupant or holder, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233'.
Section 51 after amendment in 1916.
Arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every pan thereof, failure in payment of which shall make the occupancy or alienated holding, together with all rights of the occupant or holder over all trees, crops, buildings and things attached to the laud, or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Deputy Commissioner may levy all sums in arrear by sale of the occupancy of alienated holding, or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 233, and such occupancy or alienated holding when disposed of, whether by sale as aforesaid, or by transfer to another person or otherwise howsoever, except by restoration to the defaulter, shall unless the Deputy Commissioner otherwise directs, be deemed to be freed from all tenures, rights, incumbrances and equities theretofore created by the occupant or holder or any of his predecessors in title or in anywise subsisting as against such occupant or holder.
It will be noticed that it is only the latter part of the Section that way amended. The first part of the section made it clear that land revenue is a paramount charge on the holding and that the holding with ail the rights of the holder is liable to forfeiture. This portion remained unaffected. The Deputy Commissioner could sell away the holding. According to the Section, as it stood in Regulation IV of 1888, he had the right to sell the holding free from all tenures and incumbrances taut he need not have done so and sold only the right of the defaulting holder and not that of other persons such as permanent or kadim tenants. That this could be done is clear from '15 Mys CCR 120.' As to whether what was sold in a revenue sale was freed from all tenures and incumbrances, the presumption was that it was so, according to the decision, though it is clear that the Deputy Commissioner could sell merely the right, title and interest of the defaulter, and allow the right of the permanent tenants or mortgagee remain unaffected. Thus, what was affected by a revenue sale was a question which had to be settled on the intention of the Deputy Commissioner. As could be expected very often the order of the Deputy Commissioner was not clear with the result that the purchaser was not sure of what he purchased. Litigation invariably followed. To avoid any doubt, the amendment of the Section by Regulation VIII of 1916 made it clear that unless the Deputy Commissioner otherwise directed the effect of a revenue sale was to free the alienated holding 'from all tenures, rights and encumbrances.' It will be noticed that the amendment in no way affected the fact that as stated in the first portion of the section, all the rights of the holder are liable to forfeiture and sale. As observed by Reilly, C. J. 'Nagaraja v. Dodda Venkata Gowda', 43 Mys H C R 325 at page 334 :
'The amended section leaves the power of forfeiture as it was before. It leaves the whole holding of the immediate defaulter liable to forfeiture and the rights of those deriving title from him liable to forfeiture also. But it provides that, if the Deputy Commissioner so directs, when what is forfeited is put up to sale, it may be only the immediate defaulter's rights and not the rights of those deriving title from him.'
The amended section went further and stated that the rights of tenures or incumbrances created by or subsisting against the holder are also affected by the sale unless the Deputy Commissioner otherwise directed. As already observed this affected the rights of innocent kadim tenants and permanent tenants who were not responsible for the failure of the Jodidar to pay the Jodi and in order to save the interest of these tenants the Section was further amended by Regulation VII of 1928 by the addition of the words 'But so as not to affect the rights of kadim tenants or permanent tenants in alienated holdings.' This amendment protected the interest only of the tenants and like the amendment in 1916 does in no way decrease the liability of the alienated holding together with all the rights of the holder being forfeited and sold.
14. In this case it is clear from the order of forfeiture, as well as from the records showing the sale of the vritti of the appellant, that his entire rights have been sold. It is true that if there are any tenures created by him or subsisting against him or his predecessor-in-title, the rights of kadim and permanent tenants remain unaffected. But so far as he is concerned, it cannot be said that any right of his, remains unaffected by the sale. The section as it stands now is lengthy and it is necessary to analyse it carefully before one could clearly understand what rights, the words newly added are intended to save from the effect of the section. The clause newly added modifies the verb 'freed.' While by a revenue sale the alienated holding should be deemed to be freed from all tenures, rights, incumbrances and equities created by the occupant or holder or by any of his predecessor-in-title, or subsisting against them, the newly added clause makes it clear that tenures created by the holder or his predecessor-in-title or those subsisting against them, except when they are not rights of kadim tenants or permanent tenants in alienated holdings, are affected. Before it could be said that the rights of permanent or kadim tenants are saved under the saving clause, they must be rights which have been mentioned in the previous clause. The previous clause makes it clear that the sale must be deemed to be freed from all tenures, etc., created by, or subsisting against a superior holder or his predecessor-in-title. The right of the holder himself to be in possession of the holding cannot be said to be a right created by him or subsisting against him.
15. Then again a careful reading of the section makes it clear that it consists of two complex sentences compounded by the word 'and.' The principal clause of the first complex sentence states that arrears of land revenue shall be a paramount charge on the holding and every part thereof. The second clause makes it clear that the occupancy or alienated holding shall be liable to forfeiture and the third clause authorises the Deputy Commissioner to sell or dispose of the occupancy or alienated holdings. The principal clause of the Second complex sentence states that the occupancy or alienated holdings when thus disposed of shall be deemed to be freed from all tenures rights, incumbrances and equities created by the occupant or the holder or his predecessor-in-title or subsisting against them. It is this principal clause of tho second complex sentence that is modified by the Clause newly added by amendment. In the first places, it will be noticed that this does not refer to the rights of the holders themselves. It refers to the rights created by the holders or subsisting against them. But for the amendment, the rights of kadim or permanent tenants would have been affected; on account of the amendment the rights of kadim tenants or permanent tenants created by or subsisting against jodidars remain unaffected. The clause added by the amendment does not save any right of the defaulting holders themselves from forfeiture or sale. It only saves the right of kadim and permanent tenants from being affected from the Revenue Sale.
16. Thus, the appellant's rights to be in possession of his Vrithies cannot be said to remain unaffected by the revenue sale. The wording of the clause newly added makes this also very clear as, what are saved are the rights of kadim or permanent tenants and it cannot be said that the appellant is either a permanent or a kadim tenant of himself.
17. It is clear that all the rights of the appellant are affected by the revenue sale held to realisethe arrears of Jodi due by him. The lower Courtwas, therefore, right in dismissing the appellant'ssuit. It may be added that the revenue authorities have put the respondent in possession of theplaint schedule lands after the revenue sale andthe suit as brought for mere declaration of plaintiff's right and injunction is not also maintainable.The appeal, therefore, stands dismissed. Considering that the plaintiff has lost his very valuablerights in the Jodi village for failure to pay asmall amount of Jodi and the respondent has purchased a very valuable property for a small sumand the fact that the points involved were notfree from doubt, the parties are directed to beartheir own costs throughout.
18. Appeal dismissed.