ORDER
K.S. Menon, J.
1. This is an application for the issue of a writ of certiorari to call for the records in S.S. No. 5 of 1934 on the file of the Deputy Collector of Cocanada and in the appeal therefrom, Summary Appeal No. 22 of 1935 on the file of the District Collector of East Godavari and to quash the decisions therein.
2. The suit was to recover possession of the lands from defendants 7 to 18 on the ground that they were emoluments attached to the potter service in the village of Velangi and that the plaintiff was entitled to perform that service and has been performing it from 1932. Defendants 7 to 18 denied the truth of the genealogy set up in the plaint and contended that the plaintiff was not entitled either to perform the service or to the possession of the lands in question, and that they have been in possession for a long time. The trial Court found that the relationship set up by the plaintiff was true, that the suit was not barred by limitation or adverse possession, but dismissed the suit chiefly on the ground that the relinquishment by defendants 1 to 4 in favour of the plaintiff was not proved and that the plaintiff had not been appointed in their place. In appeal, that decree was reversed and a decree was given for the plaintiff as sued for.
3. The contention of the learned Advocate for the petitioners before this Court is that the Revenue Courts had no jurisdiction to entertain this suit. The only question therefore for decision is whether the Courts below had jurisdiction to entertain the suit. The allegations in the plaint make it clear that the lands, possession of which is sued for, are the emoluments of the potter service in the village concerned and that the plaintiff was suing in his capacity as the person, who was entitled to that office on the death of his father and after relinquishment by his brothers, defendants 1 to 4, and who has been regularly performing the potter service in that village from 2nd December, 1933. Section 13(1) of the Madras Hereditary Village Offices Act (III of 1895) is as follows:
Any person may sue before the Collector for any of the village offices specified in Section 3 or for recovery of the emoluments of any such office, on the ground that he is entitled under Sub-section (2) or (3) of Section 10 of the Madras Proprietary Estates' Village Service Act, 1894, or under Sub-section (2) or (3) of Section 10 or Sub-section (2) or (3) of Section 11 or Section 12 of this Act as the case may be, to hold such office and enjoy such emoluments
4. And Section 21 enacts:
No Civil Court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in Section 3 or any question as to the rate or amount of the emoluments of any such office or except as provided in proviso (ii) to Sub-section (1) of Section 13, any claim to recover the emoluments of any such office.
5. It is not contended that this case comes within the proviso (ii) to Sub-section (1) of Section 13. What is argued is that it is only a person who is entitled to hold such office or to enjoy such emoluments and not a person who is actually holding the office who is entitled to sue before the Collector. In other words, the contention is that if the person who is actually holding the office sues for the emoluments of that office, he must sue in a Civil Court, and the only authority cited in support of that proposition is the case of Ramamurthy v. Gajapathi Raju (1932) 64 M.L.J. 361 : I.L.R. 56 Mad. 366.
6. In that case, no doubt Waller, J., observed (page 371):
I am unable to see how the language of the Section (13) can apply to a suit by an actual holder of an office to recover the emoluments thereof. Such a person comes into Court as the holder of the office and not as a person claiming to be entitled to hold it.
7. And the learned Judge proceeded to support it by the language of the second proviso to Sub-section (1) of Section 13. But it has to be observed that that suit was not one to recover the emoluments of an office. The learned Judge himself begins that portion of the judgment by saying:
The suit is not one to recover the emoluments of an office, but to eject persons who are alleged to have trespassed on some inam land, which forms part of the emoluments of the office.
8. The observations are therefore more or less obiter. Again the statement 'apart from that, I find great difficulty in following the decisions which have laid down that Section 21 of the Act takes suits by holders of offices for recovery of their emoluments out of the jurisdiction of the ordinary Courts' shows that the decision therein runs counter to the trend of the earlier decisions of this Court. Pandalai, J. who was the other member of the Bench simply observed:
I agree with my learned brother that the suit is not barred by Section 13 or 21 thereof.
9. The earlier decisions of this Court are clearly in favour of the view that suits by persons who are actually holding an office, for the recovery of emoluments attached thereto on the ground that they are entitled to hold the office or to enjoy such emoluments come within Section 13 and are excluded from the jurisdiction of Civil Courts by reason of the provisions of Section 21. In Kesiram Narasimhulu v. Narasimhulu Patnaidu : (1906)16MLJ541 that view was upheld by three learned Judges of this Court. In that case, the suit was by a person, who was actually a karnam at the time, for the recovery of the land which was inam attached to the office, and Miller, J., observed:
He can therefore only succeed by showing (1) that he is the karnam of the village entitled as such to enjoy the emoluments and (ii) that the land for which he sues is the emolument of his office. These must be the grounds of his suit and these are the grounds of suit which give him his right of action before the Collector under Section 13(1).
10. In the case of Devineni Pattayya v. Kandukuri Kotiah (1916) 5 L.W. 515 the allegation was that the plaintiff and his ancestors had been enjoying, as of right, the carpenter and blacksmith inam and had been rendering service in connection therewith and that when the plaintiff demanded defendants 1 to 4 and 7 to 9 to deliver over possession of the land they ignored his right and intimated to him that defendants 7 to 13 had an independent right to the property. It was held by a Division Bench of this Court (Spencer and Phillips, JJ.) that the case was one excluded from the jurisdiction of the Civil Court by Section 21. Their Lordships observed:
We are of opinion that in all cases where it is necessary for the plaintiff to allege for the maintenance of his suit, that the land in suit is an emolument of a service inam, the jurisdiction will remain with the Collector under Section 13 of the Act. This is a principle laid down in the Full Bench Division in Kesiram Narasimhulu v. Narasimhulu Patnaidu : (1906)16MLJ514 .
11. Again, in the case of Kandappa Achariv. Singara Chari (1926) 25 L.W. 299 another Division Bench of this Court held:
Therefore all suits for the emoluments of an office on the ground that the plaintiff is holding the office must primarily be brought in the Revenue Court. The Civil Court has jurisdiction only in one case viz., where one of the issues is whether the emoluments are land or an assignment of revenue, and even that issue has to be decided first by the Revenue Court, and only when the relief which the Revenue Court can grant is exhausted...can he sue in the Civil Court for the recovery of the land.
12. In the last case, it was distinctly stated that even though the plaintiff was holding an office, the suit for the recovery of the emolument has to be brought in the Revenue Court. It may also be observed that there is nothing in Section 13(1) itself which compels one to hold that suits by persons actually holding the office referred to therein for recovering the emoluments of that office do not come within the wording of that section. Having regard to the uniform course of decisions in this Court it must be held that the lower Courts had jurisdiction to deal with this suit. No case is therefore made out for the issue of a writ of certiorari.
13. The petition is therefore dismissed with costs. Advocates' Fee Rs. 75.