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Case Number

W.P No. 629 of 1953

Attorney(S)

For the Appellant: E. Venkatesam, K. Rajah Iyer, R. Kothandaramayya, S.V. Kondapa, Advocates.

Judges

Bhimasankaram, J.

Acts

Section 64-A of the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948.
provision of the Code of Civil Procedure, 1908, and the Indian Limitation Act, 1908,
Madras Estates Land Act, proceedings under Section 9 of Madras Act XXVI of 1948,
Section 3(2)(d) of the Madras Estates Land Act (I of 1908).
Order 47, rules 1 and 3, of the Code of Civil Procedure,
mind.7. Section 8(4) of the Madras Act XXVI of 1948
Madras Estates Land (Third Amendment) Act, 1936.21.
Section 64-A(2) of the Madras Act XXVI of 1948
section 3, clause (2)(d) of the Estates Land Act
Section 3(2)(d) of the Madras Estates Land Act,
Section 9(7) of the Madras Act XXVI of 1948
Sec. 3(2)(d) of the Madras Estates Land Act.
provisions of Order 47, rule 2, C.P.C,
provisions of Order 47, C.P.C
rule of Order 47, C.P.C,
Rent Control) Act, 1949,
Order 47, rule 2 C.P.C
Rule 2 of the Rules
rule 2 of Order 47
rule 4, sub-rule (2)
Section 11, C.P.C,
47, rule 2, C.P.C,

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is a petition under Article 226 of the Constitution seeking a writ of certiorari to remove and quash the records in I.A. No. 177 of 1952 in A.S. No. 456 of 1950 on the file of the Estates Abolition Tribunal, Vijayanagaram.

The petitioner is the Executive Officer of the temple (Devasthanam) of Sri Krutha Krithya Rameswaraswami at Gudimoola Rameswaram, which owned an inam known as Gudimoola Khandrika. After the Madras Act XXVI of 1948, the Settlement Officer, Vijayawada, suo motu initiated proceedings under Section 9 to determine whether Gudimoola Khandrika was an inam estate (as defined in Section 2(7) of the Act).

The Devasthanam contended the grant comprised only part of the village and therefore was not an estate under Section 3(2)(d) of the Madras Estates Land Act (I of 1908). The 1st respondent contested and relied on prior decisions (Privy Council and Madras High Court decisions) to assert that Gudimoola Khandrika was a whole-village inam and thus an inam estate. The Settlement Officer found for the 1st respondent that it was a whole-village inam.

The Devasthanam appealed to the Estates Abolition Tribunal (A.S. No. 456 of 1950). The Tribunal, after hearing counsel for both sides, on 13-5-1952 upheld the Devasthanam's contention that the Khandrika was not an inam estate. Shortly thereafter the 1st respondent filed a petition purporting to be under Order 47, Rules 1 and 3, C.P.C., and rules framed under the Madras Abolition Act, seeking review. The Tribunal then passed an order dismissing A.S. No. 456 of 1950 (i.e., reversing its earlier judgment). At the time of the second judgment the Tribunal's composition had changed (one member replaced).

Legal Issues Presented

Whether the Estates Abolition Tribunal has power to review its own judgments under the Madras Act XXVI of 1948 and the rules made thereunder (including applicability of provisions of the Civil Procedure Code to Tribunal proceedings).
If the Tribunal has power of review, whether the review was competent when the Tribunal's personnel had changed, having regard to Order 47, Rule 2, C.P.C.
Whether the grounds relied upon in the review (including alleged error apparent on the face of the record) constituted sufficient grounds under Order 47, C.P.C., to justify reversal of the Tribunal's earlier judgment.
Whether the Tribunal's decision on review is vitiated by an error apparent on the face of the record and therefore amenable to writ of certiorari under Article 226.

Arguments of the Parties

Appellant (Petitioner / Devasthanam) — Mr. Raja Aiyar

The Tribunal has no inherent power of review; any power of review must be granted by statute (citing authorities to that effect).
Even if the Tribunal could review its own judgment under the Act or rules, Order 47, Rule 2, C.P.C., prevents review by a differently constituted bench where the ground of review is other than discovery of new evidence or clerical/arithmetic mistake; thus, having changed personnel, the Tribunal could not entertain the review.
There were no sufficient grounds for review in this case: the Tribunal's original decision was correct on the materials and prior litigation did not operate as res judicata in the manner asserted by the respondent.
The decision on review was vitiated by an error apparent on the face of the record and is therefore amenable to certiorari.

Respondents (including Advocate-General for Andhra Pradesh)

The Advocate-General answered each contention and maintained the Tribunal had power to review: the rules made under Section 67(2) of the Madras Act and the notifications applying aspects of the C.P.C. to the Tribunal were sufficient to confer the power of review.
Rule 1 (power of civil court in trials and appeals) and Rule 2 (proceedings to be governed as far as practicable by the C.P.C.) were argued to be comprehensive enough to include the C.P.C. power of review.
Procedural objection regarding constitution of the Tribunal (change of personnel) was not taken below; reliance was placed on a Divisional Bench authority to argue that failure to object waives the point and cannot be raised for first time in this Court.
It was argued that if the first judgment were quashed for lack of jurisdiction or material irregularity, this Court might be called upon to quash that judgment too — a consequence to be weighed in deciding the petition.
The respondents maintained that the Tribunal was correct in concluding there was an error apparent (insofar as earlier proceedings and pleadings had been overlooked) and that failure to notice binding authorities could amount to an error justifying review.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Annatharaju Shetty v. Appu Hegade, 37 M.L.J. 162	The general proposition that a Court or Tribunal has no inherent power of review except where the original order was passed without jurisdiction; review power must be statutory.	Used as the basis for the petitioner's submission that review power must be conferred by statute; the Court considered this principle but examined the statutory rules to determine whether review power was in fact conferred.
Fernandes v. Ranganyakulu Chetty, 1952 II M.L.J. 445	Illustrates that under particular Madras legislation (Madras Buildings (Lease and Rent Control) Act, 1949) an application for review could be entertained — supports that review power can exist if statutory.	Referred to by petitioner to show review power is a statutory grant; the Court considered this precedent in framing the question whether the Madras Abolition Act rules conferred that power.
Sishtla Janakirama Sastri v. Jagani Gopalam	Interpretative remark: the word "Khandrika" means a portion (supporting the Tribunal's inquiry into whether Gudimoola Khandrika was a portion or whole village).	The Tribunal (and the Court's summary of Tribunal reasoning) relied on that meaning in assessing whether Gudimoola Khandrika was a hamlet/portion rather than a whole village at the time of grant.
Secretary of State v. Velivelapalli Mallayya, A.I.R. 1932 P.C. 1238 (Privy Council)	Earlier decision addressing the nature/extent of the grant to Gudimoola Khandrika; relied upon to assert that the grant was of a whole inam village.	The Tribunal initially considered that the Privy Council had not addressed whether Gudimoola Khandrika was a village at the time of grant; on review the Tribunal concluded the Privy Council and High Court had held the grant was of a whole inam village, and so treated that decision as conclusive for some purposes (res judicata under Section 64-A(2) as interpreted by the Tribunal).
Murari Rao v. Balavnth Dikshit and Natesa Naicker v. Sambanda Chettiar	Authority for the proposition that failure to notice and give effect to a binding authority because counsel did not draw attention to it may constitute an error apparent on the face of the record.	The Court accepted that failure to give proper effect to cited decisions (because material passages were overlooked) can be an error analogous to those justifying review; this underpinned the conclusion that the Tribunal's review could be sustained on that ground.
Gopalakrishna Kanikullayya v. Narayana Kamada (Div. Bench, Madras High Court)	Where a successor judge/bench entertains a review and the opposite party does not object and the case is dealt with on merits, the opposite party cannot later contest the validity of entertaining the review for the first time in a higher court.	Relied upon by respondents to argue waiver of procedural objection; the Court applied this principle to refuse to entertain the jurisdictional objection raised for the first time before it.
Gosukonda Venkatanarasayya v. State of Madras; State of Madras v. Srinivasulu	Authority discussing the limited role of Settlement Officer under Section 9 of Madras Act XXVI of 1948 and that where a grant is contended to comprise less than a village, relief might properly be by suit rather than Section 9 proceeding.	The Court considered these authorities and concluded that although the Settlement Officer's statutory role is restricted, deciding whether an inam comprised a village or less is a jurisdictional fact he can determine preliminarily, and thus the Tribunal could also decide that issue on appeal.

Court's Reasoning and Analysis

The Court addressed the petitioner's contentions in order. The analysis proceeded from statutory text to application to the facts.

1. Power of Review: The Court examined Section 8(4) and Section 67(2) of Madras Act XXVI of 1948 and the rules notified under it. The relevant rules (notification of 17 January 1950, as amended) provided (1) that every Tribunal shall have all the powers exercisable by a civil Court in the trial of suits and in appeals, and (2) that proceedings shall be summary and governed, as far as practicable, by the provisions of the Code of Civil Procedure, 1908.

The Court construed the phraseology of rule 2 ("governed as far as practicable by the provisions of the Code of Civil Procedure") and rule 1 ("all the powers exercisable by a civil Court in the trial of suits and in appeals") as sufficiently wide to include the C.P.C. power of review. The Court acknowledged that the drafting could have been simpler but refused to withhold effect from the plain words. It held that rule 2, in particular, was clearly wide enough to confer power of review on the Tribunal; it did not need definitively to decide whether rule 1 alone also did so.

2. Effect of Order 47, Rule 2 (C.P.C.) and Change of Personnel: The Court considered Order 47, Rules 1 and 2, C.P.C., which generally require review applications (other than those based on discovery of new evidence or clerical errors) to be made to the judge who passed the decree, with a proviso allowing disposal by a successor where notice had been ordered.

Two answers were given to the petitioner's objection based on change of personnel:

Procedural Waiver: The objection to the Tribunal's constitution had not been taken below; authority (Gopalakrishna Kanikullayya) shows that where a successor heard the review and no objection was raised and the case was dealt with on merits, the point could not be raised for the first time on appeal. The Court therefore refused to entertain that objection raised for the first time before it.
Scope and Purpose: The Court observed that the limitations in Order 47, Rule 2, are based on policy applicable to single-judge courts and may not be strictly applicable where a multi-member Tribunal acts collectively; even if that point were arguable, the Court preferred to treat the objection as one that should not be raised at this stage and rejected it.

3. Whether There Were Sufficient Grounds for Review (Error Apparent on Face of Record): The Court summarized the Tribunal's first judgment (that Gudimoola Khandrika was a hamlet/portion, not a whole inam village at time of grant) and the Tribunal's reasoning: reliance on historical revenue records, Inam fair register entries, and earlier Board of Revenue proceedings (including their cancellation).

On review the Tribunal concluded that it had overlooked pleadings and findings in earlier litigation (including the Privy Council and High Court decisions) and that those decisions showed the grant had been dealt with as a whole inam village; accepting that some prior decisions operated as res judicata under Section 64-A(2) of the Madras Act, the Tribunal reversed its earlier decision.

The Court considered whether the Tribunal's conclusion that those prior decisions were binding constituted an error of law or fact apparent on the face of the record. It accepted (drawing on cited authorities) that overlooking binding authorities or material passages in authorities can amount to an error apparent on the face of the record, and that the existence of such an error is primarily for the Tribunal to determine in exercising review jurisdiction. The Court declined to substitute its own view on the merits where the Tribunal had jurisdiction and had exercised it to find such an error.

4. Settlement Officer's Jurisdiction: The Court examined earlier decisions (Gosukonda Venkatanarasayya and Srinivasulu) relied on by respondents and concluded that, although the Settlement Officer's statutory power under Section 9 is limited to deciding whether an inam village is an inam estate or not, he is competent to decide as a preliminary jurisdictional fact whether an inam comprised a whole village or less. The appellate Tribunal may also decide that factual jurisdictional question, and that the finding could be open to challenge in a civil court if appropriate.

Overall, the Court rejected all contentions advanced on behalf of the petitioner. It concluded that the Tribunal had jurisdiction to entertain review under the rules made under the Act, the objection based on change of personnel could not be raised at this stage, and the Tribunal's exercise of review to correct an apparent oversight of binding authorities was within its competence.

Holding and Implications

Holding: The petition under Article 226 is dismissed. (The writ petition fails.)

Direct Effect on the Parties: The Tribunal's decision on review (which reversed its earlier judgment and dismissed A.S. No. 456 of 1950) stands; the petition to quash the Tribunal's review decision is unsuccessful. The petitioner was ordered to pay costs (advocate's fee Rs. 200/-).

Broader Implications: The Court's reasoning interprets the rules made under Madras Act XXVI of 1948 (in particular the notification incorporating aspects of the C.P.C.) as sufficiently wide to permit a Tribunal to exercise the C.P.C. power of review where the rules provide that proceedings are to be governed by the C.P.C. "as far as practicable." The opinion does not purport to lay down a novel, general rule beyond its statutory construction and the application to the facts; the direct consequence is limited to the parties in this litigation and the Court did not hold (in express terms) that it was establishing a binding new precedent beyond the statutory interpretation applied here.

Disposition: Petition dismissed with costs (advocate's fee Rs. 200/-).

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Krutha Krithya Rameswaraswami Varu v. R. Ramalingaraju

1. This is a petition under Article 226 of the Constitution seeking the issue of a writ of certiorari for removing to this Court the records in I.A No. 177 of 1952 in A.S No. 456 of 1950 on the file of the Estates Abolition Tribunal Vijayanagaram, and quashing the same.

2. The petitioner is the Executive Officer of the temple of Sri Krutha Krithya Rameswaraswami varu situate in Gudimoola Rameswaram, a village in Rajole Taluk in East Godavari District. The temple owns an inam known as Gudimoola Khandrika. After the Madras Act XXVI of 1948 was passed, the Settlement Officer, Vijayawada, initiated proceedings suo motu under Sec. 9 of the Act to determine whether the Khandrika aforesaid is an inam estate as defined in Section 2(7) of the Act. It was contended on behalf of the Devasthanam that only of part of the village of Remeswaram and that therefore it was not an estate under Section 3(2)(d) of the Madras Estates Land Act (I of 1908). The 1st respondent contested the position taken up by the Devasthanam and contended that Gudimoola Khandirka when it was granted was by itself a village and that in any case the matter was concluded by a decision of the Privy Councils and two decisions of the High Court of Madras; that further the grant to the temple consisted only of melwaram and that the grant therefore constituted an inam estate within the meaning of the Abolition Act. The Settlement Officer recorded a finding basing himself on the decision of the Priyy Council that Gudimoola Khandrika was a whole village inam and that it was also inam estate. The Devasthanam filed an appeal before the Estates Abolition Trihunal, Vijayanagaram, against the finding of Settlement Officer, and it was numbered as A.S 456 of 1950 on its file. The Tribunal considered the whole material placed before it by the learned counsel on both sides and finally rendered decision on 13-5-1952 upholding the contention of the appellant before them that the Khandrika in question was not an inam estate the 1st respondent, however, presented to the Tribunal a few days later a petition, purporting, to be one made under Order 47, rules 1 and 3, of the Code of Civil Procedure, and also under the riles framed under the Madras Act XXVI of 1948, for review fo its judgment and passed an order dismissing A.S No. 456 of 1950. It is necessary to mention, in order to appreciate one of the first Judgment was delivered, the Tribunal consisted of Sri T. Srirangam Nayudu, Sri W.V.V Sundara Rao and Sri R. Ramakrishnayya, while at the time the second judgment was delivered, Sri W.V.V Sundara Rao was on longer a member of the Tribunal and his place was occupied by Janab M.D Mohinddin.

3. On these facts Mr. Raja Aiyar, learned counsel for Devasthanam, has raised the following contentions: In the first place, he submits that the tribunal has no power of review. Secondly, he argues that even assuming that the Tribunal could review its own judgment, having regard to the change of personnel, the review could not be entertained under Order 47, rule 2 C.P.C Thirdly, he contends that in any case there were on sufficient grounds for review Lastly, he urges that the decision on review is vitiated by an error apparent on the face of the record and is thus amenable to a writ of certiorari.

4. Each of these contentions has been met by the learned Advocate-General of Andhra Pradesh, who appears for the 3rd respondent, 2nd respondent being the Estates Abolition Tribunal, and I shall deal with each of the contentions and the arguments contra in the order in which they have been presented to me.

5. In addition to what he said by way of reply to the propositions ??? on behalf of the petitioner, the learned Advocate-General raised the conection that the original order of the face of the record and in case I should quash the judgment on review on the ground of defeat of jurisdiction or exercise of jurisdiction with material irregularity, this Court might be called upon to quash the orignal judgment by a writ of certiorari and that this consideration also should ??? with me in deciding upon the fate of the present petition.

6. I shall take up the contention that under the Act and the rules ??? there under, the Tribunal cannot invoke the provisions of Order 47, C.P.C In order to appreciate this contention, the following provisions of the Act and the rules made thereunder should be borne in mind.

7. Section 8(4) of the Madras Act XXVI of 1948 provider that every Tribunal shall have all the power of a civil Court to compel the attendance of witnesses and the production of documents. Section 67 of the Act white conferring upon the Government generally by its first sub-section the “power to make rules to carry out the purposes of this Act”, confers on it by sub-section (2) the following special powers:

“67.(2)—In particular and without prejudice to the generality of the foregoing provision, such rules may provide for—

(a) all matters expressly required or allowed by this Act to be prescribed;

(b) the procedure to be followed by the Tribunals, Special Tribunals, authorities and officers appointed or having jurisdiction, under this Act;

(c)xxx

(d)xxx

(e) the application of the provision of the Code of Civil Procedure, 1908, and the Indian Limitation Act, 1908, to applications, appeals and proceedings under this Act.”

8. Of the rules framed by the Government, it is necessary to quote only the first two contained in the notification dated 17th January, 1950, as amended by notifications dated 5th December, 1950, 2nd May, 1952, which read as—

“(1) Every Tribunal constituted under Section 8(1) and every Special Tribunal constituted under Section 51(1) of the Act shall have all the powers exercisable by a civil Court in the trial of suits and in appeals.

(2) The proceedings of a Tribunal shall be summary and shall be governed as far as practicable by the provisions of the Code of Civil Procedure, 1908, particularly in regard to—

(a) the issue and service of summons;

(b) the examination fo parties and witnesses;

(cc) the payment of condensation or any other money to one person on behalf of another under disability and in particular to the guardian on behalf of a minor;

(d) the passing of orders.”

9. The argument of Mr. Raja Aiyar May be summarised as follows: A Court or Tribunal has on inherent power of review except where the original order was passed without jurisdiction—vide, Annatharaju Shetty v. Appu Hegade . 37 M.L.J 162.. The power can only be granted by statute. This position which is well established has been enunciated by the Madras High Court in a recent decision in Fernandes v. Ranganyakulu Chetty . 1952 II M.L.J 445., wherein it was held that under the Madras Buildings (Lease and Rent Control) Act, 1949, on application for review could be entertained. The question, therefore, is if the Act or the rules made thereunder confer the power upon the Tribunal? The Act does not make the Civil Procedure Code expressly applicable. The Government is empowered however to do so. So far as Rule 1 quoted above is concerned, it confers only “powers exercisable by a civil Court in the trial of suits and in appeals”. Now a trial ends, however wide be the meaning that may be given to the word, with the judgment pronounced by the Court or a Tribunal. It is the same whether in the case of a suit or of an appeal. A review results in a re-trial or a re-hearing as is apparent from the language in Order 47 itself, vide rule 8, which speaks of a case being “re-heard” when an application for review is granted. So far as Rule 2 of the Rules under with the rules relating to process and does not relate of powers.

10. This argument is countered for the Government as follows: The words “All powers exercisable by a civil Court in the trial of suits and appeals” in rule 1 of the rules made under Section 67 of the Act, are comprehensive enough to cover all the powers exercisable by a Court under the Civil Procedure Code including the power of review. Secondly, if rule 2 is read omitting certain words unnecessary for the present purpose it says:

“The proceedings of a Tribunal shall be……governed a far as practicable by the provisions……of the Code of Civil Procedure, 1908”.

11. This language is surely of sufficient amplitude to comprehend all the provisions of the Civil Procedure Code. The only limitations imposed by this rule are (by the words that have been omitted above) that the proceedings are to be summary and that the Civil Procedure Code shall govern them only, as far as practicable.

12. I am inclined to agree with this argument. Of course, Mr. Raja Aiyar points out, nothing could have been simpler than to have said by only one rule that the provisions of the Civil Procedure Code shall apply as far as practicable to the proceedings of the Tribunal which shall be summary and to have left it there. Both rule 1 as well as the several clauses in rule 2 might well have been omitted. But it would be in my opinion an unjustifiable mode of construction of a statute or a statutory rule to refuse to give effect to the plain and natural meaning of the words used, merely because the meaning that would so follow could have been much better expressed in simpler language. In my judgment, the language of rules 1 and 2, particularly of rule 2, carries with it the grant of the power of review. It is true that if rule 2 alone could be said to confer that power and not rule 1, the result, it might be argued, would be that the Special Tribunal (the two Judges of the High Court acting as such a Tribunal) appointed under Section 51 of the Act will not have the power of review, while the Tribunal may have it. But it is unnecessary, for me to decide whether the power is granted under one rule or the other. I hold that the language of rule 2 is clearly wide enough to confer the power even if I may not be right in holding that the language of rule 1 is comprehensive to cover it.

13. I shall now turn to the second point of Mr. Raja Aiyar. In order to consider it. It is necessary to quote Order 47, rules 1 and 2, C.P.C:

“O. 47—R. 1(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal it allowed, but from which no appeal has been preferred;

(b) by a decree or order from which no appeal is allowed; or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was pared or order made, or of account of some mistake or error apparent on the face of the record, or tor any other sufficient reason, desire to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of aa appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review.

R. 2. An application for review of a decree or order of a Court not being a High Court, upon ??? ground other than the discovery of such new and important matter or evidence as is referred to in rule I or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree or made the order sought to be reviewed; but any such application may, if the judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-rule (2) proviso ??? be disposed of by his successor.

14. From a reading of these two rules together, it would seem that where the Court to which an application for review is made is not a High Court and the application for review is made upon a ground other than the discovery of new and important matter or evidence or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, then it shall be made only to the judge who passed the decree or made the order. That is to say, where review is sought on the ground of a mistake or error apparent on the face of the record (excluding the decree) or “for any other sufficient reason”, the application should be made only to the judge who originally dealt with the matter. Mr. Raja Aiyar's argument on this point may be put thus: In the present case, the review is not on the ground of discovery of some new and important matter of evidence. Nor is it on the ground of a clerical or arithmetical mistake or error apparent on the face of the decree. It is made either on the ground of error apparent on the face of the record (but not merely on the face of the decree) or “for any other sufficient reason”. In either case, it is not made to the original Court. It is made to a different Court. Therefore, the judgment passed in review by the Tribunal which was differently constituted is contrary to the provisions of Order 47, rule 2, C.P.C, and, therefore, without jurisdiction. Provisions of this nature should not be extended beyond the limit strictly necessitated by the language.

15. To this two answers are attempted on behalf of the respondents. The first is that this objection was not taken before the Tribunal and is not mentioned in the grounds urged by the petitioner in his affidavit in support of his present petition. My attention has been drawn in this connection to the decision of a Divisional Bench of the Madras High Court in Gopalakrishna Kanikullayya v. Narayana Kamada. It was ruled in that case that although Older 47, rule 2, C.P.C, prescribed that an application for review on cerium grounds should be made only to the judge who passed the decree; where, however, an application is entertained by a successor-in-office without any objection being raised by the opposite party and the case is dealt with on the merits, it is not open to that party in appeal to contest the validity of the order passed of review on the ground that the application should not have been entertained at all. In the course of their judgment, the learned Judges observed as follows:—

“No doubt the section is clear and no doubt the application should have been made only to the very Subordinate Judge who passed the order, but as stated this point was not taken in the Court below and the advocate who appeared there for the appellant contested the case fully and length on it merits and merits atone. We are of opinion that this question of law cannot how be railed for the first time in this Court. Had the question been raised in the lower Court the plaintiff would have been in a position to seek relief in the High Court and could have pleaded all the grounds available to him for restoration of his suit. It is apparent from the dates mentioned above that an injustice would be done to the plaintiff if this point were allowed to be taken now.”

16. It is argued that, by parity of reasoning, if the objection to the jurisdiction of tie Tribunal bad been taken earlier and upheld, the respondents might have approached this Court for a writ of certiorari. Mr. Raja Aiyar frankly concedes that this point was not taken at any time earlier but would insist that it is a question of jurisdiction and, as such, one that could be raised at any time. But ever as a questman of jurisdiction it ought to have been raised in the present petition. I am not, therefore, prepared to allow this to be raised for the first time in the argument before me.

17. The second answer is that if the power of review is to be considered as hiving been conferred by rule 2 then the provisions of the Civil Procedure Code are applicable only “as far as practicable” and that in any case the word “Judge” in the rule is not to be interpreted as meaning all the original members of the Tribunal. The limitations imposed by rule 2 of Order 47 upon the ordinary Courts are based upon a policy which does not necessarily apply when a Court or a Tribunal consists of several members, all of them acting together. It seems to me that this argument is not also without force, although I should much prefer to put it on the ground that it is an objection that should not be allowed to be raised for the first time at this stage. This submission of Mr. Raja Aiyar also must, in my opinion, fail.

18. Coming then to the third point Mr. Raja Aiyar's submission is that there is no error apparent on the face of the record; nor is there any sufficient reason within the meaning of rule of Order 47, C.P.C, to justify the Tribumalls reversal of its earlier judgment. In order to appreciate this contention, it is necessary to set forth the reasoning upon which the first and the second judgments of the Tribunal proceeded.

19. I have already stated that in their first judgment the Tribunal held that the inam Gudimula Khandrika did not at the time of the grant constitute of a whole village which it must have been in order that it may constitute an inam estate.

20. An inam estate is defined in Section 2(7) of the Act as:

“an estate within the meaning of section 3, clause (2)(d) of the Estates Land Act but does not include an inam village which became an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936”.

21. Before the amendment above-referred to, under Section 3(2)(d) of the Madras Estates Land Act, any village of which the land revenue alone has been granted, in inam to a person not entitled to the kudivaram provided that the grant has been made, confirmed or recognised by the British Government, would be an estate. The definition, therefore, did not bring within its ambit anything less than a village. So a grant of less than a village would not be an inam estate within the meaning of Madras Act XXVI of 1948. The Tribunal, therefore, thought that it was necessary in the first instance to determine the extent of the grant. They observed that the word “Khandrika” which means a portion was significant in itself as remarked in Sishtla Janakirama Sastri v. Jagani Gopalam. They referred to the Bhuband lists pertaining to Rameswaram village of the years A.D 1819, 1823 and 1842 as well as the statement filed before the loam Commissioner. The inference that they drew from all these documents was that Gudimula Khandrika was a hamlet of the village of Remeswaram, that the entries in the Inam Fair Register supported that inference unequivocally and that there was not a single document to show that at the time of the grant Gudimula, Khandrika constituted a village by itself. They also noticed certain proceedings of the Board of Revenue of the year 1876 whereby the Board had directed that the Khandrika should be treated as an entire village. But this, they pointed out, was subsequently cancelled by the Board in the year 1917. These proceedings gave rise to civil litigation between the Archaka and the trustees on the one hand and the Secretary of State for India on the other, viz. O.S Nos. 72 and 73 of 1919 on the file of the Subordinate Judge's Court, Rajahmundry. The issues which arose in those suits were primarily two:

(1) Whether the plaintiffs' inam consisted of the whole village of Gudimula Khandrika or only of Ac. 560-79 cents in it? and

(2) What is the extent of the mamul wet to which plaintiffs are entitled to get water free of tax?

22. The trial Court held that the subject-matter of the grant was only Ac. 560-79 cents and that was the extent which the plaintiff's were entitled to cultivate as mamul wet lands. The unsuccessful plaintiffs took the matter up in appeal to the Madras High Court. The learned Judges of the High Court held that the whole of the land in the Gudimula Khandrika was comprised in the grant and that the plaintiffs were entitled to treat 1408 acres as mamul wet. This decision of the High Court was confirmed on further appeal to the Privy Council. When reliance was placed by the respondent upon the observations in the judgments of the High Court and the Privy Council in support of his contention that Gudimala Khandrika was dealt with as a whole village grant, the Tribunal pointed out that though it was true that the words “whole village” were used in those judgments with reference to Gudimula Khandrika that was because by the time that litigation had started, it was treated as a separate village in the revenue accounts and that their Lordships were not concerned with the question as to whether Gudimula Khandrika constituted the whole village at the time of the grant.

23. In regard to the judgment in S.A No. 1251 of 1948 of the Madras High Court which confirmed the decision of the District Judge, Rajahmundry, in A.S No. 16 of 1947 (which was an appeal from the decision of a Deputy Collector in a rent suit) upon which also reliance was placed by the respondents, the Tribunal observed that those proceedings do not operate as res judicata “as the parties in those and in the present proceedings are not the same”. The Tribunal also said that several documents supporting the conclusion that the Khandrika was a hamlet were not filed in the former litigation. A third judgment also of the High Court of Madras upon which too the respondents relied was considered by the Tribunal to be of no value because it did not decide any issue as to the nature of the original grant and that there was therefore no question of res judicata. Rejecting thus the arguments urged by the respondent as to the effect of the prior litigation upon the question before them, they observed as follows:—

“Taking the whole evidence into consideration, we are very much inclined to hold that Gudimula Khandrika was only a hamlet or a portion of Rameswaram at the time of the grant and that as such it was not a whole inam village on the date of the grant.”

24. Then they addressed themselves to the question is to whether the grant was in favour of a grantee entitled to the Kudiwaram and held that as there was evidence that even by the date of the inam settlement the land was not rendered fit for cultivation the grant must be deemed to have conveyed both the warams. In the result they allowed the appeal and set aside both the findings of the Settlement Officer against the Devasthanam.

25. I shall now summarise the effect of the judgment of the Tribunal on review. The main point made before the Tribunal on the application for review was that their view on the former occasion that the decision of the Privy Council to be found reported in Secretary of State v. Velivelapalli Mallayya, the decision of the Madras High Court in S.A No. 1254 of 1948 and the decision of the same High Court in A.S No. 325 of 1947 did not operate as res judicata was an error apparent on the face of the record. It was urged that the error was occasioned by the failure of the advocate to bring to the notice of the Tribunal the pleadings and the findings in those cases as also the rule enacted in Section 64-A of the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948. The Tribunal agreed with this contention. They analysed the facts of the Privy Council case first and upon an examination of the language of the judgment, they reached the conclusion that “it is manifest that both the High Court and the Privy Council have held that the grant of Gudimula Khandrika was a grant of whole inam village and that the confirmation by the British Government was also in respect of the entire village of Gudimula Khandrika.” They were further of the opinion that the judgment of the High Court in S.A No. 1254 of 1948 had the effeot of deciding “that the village (Gudimula Khandirka) in which the lands in suit are situate is an estate and that the plaintiff is entitled to occupancy rights”. With reference to the judgment of the High Court in A.S No. 325 of 1947 they pointed out that the learned Judges had observed that it was common ground that Gudimula Khandirka is an inam village coming within the definition of an estate under Sec. 3(2)(d) of the Madras Estates Land Act.” Then the Tribunal considered the question as to whether the findings in the aforesaid decisions constituted res judicata. They referred to Section 64-A(2) of the Madras Act XXVI of 1948 and observing that it was in some respects different from the doctrine of res judicata in Section 11, C.P.C, expressed the view that the decision of the Privy Council in Secretary of State v. Veliveiapalli Mallayya, and the decision of the High Court in S.A No. 1254 of 1948 constituted res judicata while the decision of the High Court in A.S No. 325 of 1947, though it would not operate as res judicata, was still admissible in evidence. Upon the view so expressed, it naturally followed that their earlier decision that the grant did not consist of a whole village was wrong. Then they considered the question as to whether the grant was of the melwaram alone to a person not owning the kudiwaram, and reached the conclusion that the finding in S.A No. 1254 of 1948 was res judicata on that point and that it must be held that the grant consisted of land revenue alone to a grantee not owning the kudiwaram. They also referred to the presumption laid down in Section 9(7) of the Madras Act XXVI of 1948 that until the contrary is proved, an inam village may be presumed to be an inam estate and remarked that there being no evidence placed before them to the contrary it must be held that the village was an inam estate. The result was that they went back upon their old decision in regard to both the issues.

26. Mr. Raja Aiyar contends that upon the two judgments of the Tribunal above summarised, it is clear that the review could not be sustained upon the ground of error apparent on the face of the record or even upon the ground of any other sufficient reason. The Tribunal itself purported to act upon the ground of error apparent on the face of the record and their reasoning is best put in their own words:

“The Tribunal's observation in its previous judgment that the findings given in the prior suits do not operate as res judicata was due to the fact that it overlooked the pleadings in and the findings in the prior suits. Against the Tribunal's observation that the parties in the previous proceedings and in the present proceedings are not the same is incorrect on the face of the record as there are errors or mistakes apparent on the face of the record we allow the review application.”

27. It is conceded that an error justifying a review may either be an error of fact or error of law. But it is urged that a review is inadmissible merely on the ground that upon fuller arguments and a fresh consideration of the issues involved, a judge changes his mind. The respondents would maintain however (1) that the question as to whether there is an error apparent on the face of the record is one primarily for the Court or Tribunal called upon to review its decision, and (2) that in the present case there was a failure by the Tribunal on the former occasion to consider the decisions of the highest Courts as binding upon it if not as judgments constituting res judicata. If failure to notice and give effect to a binding authority because of failure of counsel to draw the attention of a judge to such an authority can be said to constitute an error apparent on the face of the record—vide, Murari Rao v. Balavnth Dikshit and Natesa Naicker v. Sambanda Chettiar—it seems to me to be difficult to sustain the proposition that a failure to give proper effect to decisions cited because the Court had overlooked (it may be for the reason that counsel did not draw its attention to it) certain material passages in the authorities cited, is not such an error. In any case, it would be difficult to contend that it is not a ground at least analogous to such an error. I must also remember that I am not sitting in appeal over that judgment. If they have the necessary jurisdiction and if in the exercise of that jurisdiction they have to decide for themselves whether there is such an error as would call for its exercise, I should think that it is not for me in the exercise of my own jurisdiction under Article 226 of the Constitution to decide whether there was such an error or not. The third contention of Mr. Raja Aiyar cannot also, in my opinion, be accepted.

28. This brings me to the last of the contentions urged on behalf of the petitioner. The argument invovles an examination of the decision of the Tribunal on the merits, for, if that decision is vitiated by an error apparent on the face of the record, it would be amenable to a writ of certiorari. The question thus arising may be stated in the following terms: was the Tribunal in error in holding that the decisions of the High Court and the Privy Council arising out of O.S Nos. 72 and 73 of 1919 on the file of the Sub Court, Rajahmundry, and the decision of the High Court in S.A No. 1254 of 1948 were binding upon the parties as being res judicata or at least as pronouncements of great force upon the issues now raised before the Tribunal. It is true that in the decision in the litigation which went up to the Privy Council there was no conflict between the Devasthanam and the persons claiming occupancy rights in the inam. That was a litigation between the Devasthanam on the one hand and the Government on the other. The decision in such a litigation is clearly not res judicata between the present parties, who must be deemed to be the Devasthanam on the one hand and the ryots on the other. Again, S.A No. 1254 of 1948 arose out of a suit between the Devasthanam and an individual tenant who could not be said to have represented all the ryots of the village. In that view it cannot be said to be binding upon any body other than that particular party even under Section 64-A of the Act. But still the judgments in both the cases are pronouncement made by civil Courts of highest authority upon questions that fall to be decided by the Tribunal. It may be noticed that in his judgment in A.S No 6 of 1947, (against which S.A No. 1254 of 1948 was taken) the learned District Judge treated the decision in Secretary of State v. Velivelapalli Mallayya . A.I.R 1932 P.C 1238. as finally deciding that Gudimula Khandrika is an estate within the meaning of Section 3(2)(d) of the Madras Estates Land Act and that decision was upheld in second appeal. It is also worthy of notice that when A.S No. 325 of 1947 came to be decided, counsel on neither side contested the position that it was an inam village of that description. Having regard to the weight to which these pronouncements are entitled as authorities, I should certainly have considerable hesitation in upholding a contention that the Tribunal should have brushed them aside on the ground that they do not embody decisions inter partes. At all events, I cannot say that the Tribunal was guilty of an error of law in reaching a conclusion consistent with the decisions contained therein. This disposes of the last of Mr. Raja Aiyar's submission.

29. I may also notice another argument of the learned Advocate-General in this connection. He pointed out that Section 9(1) of the Act vests in the Settlement Officer only power to decide whether an inam village is an inam estate or not, and that the officer is not concerned with the question whether the grant comprised a village or less. He, therefore, argues that the Tribunal's earlier decision on appeal from the officer, by which they held that the grant did not consist of a whole village, was beyond its jurisdiction, and, therefore, clearly bad. He has referred me in this connection to the decision in Gosukonda Venkatanarasayya v. State of Madras and State of Madras v. Srinivasulu. In the former of these cases, the learned Chief Justice and Venkatarama Ayyar, J., of the Madras High Court held that, “where it is contended by a party that a grant in his favour comprised less than a village and therefore is not an ‘estate’ still less an ‘under-tenure’ within the meaning of the Madras Estates Land Act, proceedings under Section 9 of Madras Act XXVI of 1948, would not be strictly open to the aggrieved party” and that the proper and adequate remedy in such a case by an aggrieved party would be by way of suit. In the latter case, a Divisional Bench of the Andhra High Court consisting of Viswanathal Sastri and Krishna Rao, JJ., applied that decision and remarked that it followed “that the opinion of the Settlement Officer or the Tribunal given in a proceeding under Section 9 that an inam grant is of less than a village and, therefore, outside the ambit of Madras Act XXVI of 1948, would not be binding on the parties or the State in proceedings under Madras Act XXX of 1947”. It seems to me, however, that it cannot be argued that the Settlement Officer, though authorised to decide only whether an inam village is an inam estate or not, cannot also decide as a preliminary point whether an inam with which he is dealing consisted of a village or not. It seems to me that such an issue involves a jurisdictional fact which he is competent to decide and which, therefore, the Appellate Tribunal also may decide. It may be that the finding so arrived at may be questioned in a civil Court which is all that the two decisions cited seem to me say.

30. Having regard to the fact that I have rejected all the contentions on behalf of the petitioner, it is unnecessary forms to deal with the submission of the leatned Advocate-General that the original order of the Tribunal allowing the appeal being one vitiated by an error apparent on the face of the record, I should not set aside the judgment on review even if I hold that the second judgment was rendered irregularly or without jurisdiction.

31. The result therefore is that this writ petition fails and must be dismissed with costs one set. Advocate's fee Rs. 200/-.

Ch. R.

32. Petition dismissed.

Krutha Krithya Rameswaraswami Varu v. R. Ramalingaraju

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Petitioner / Devasthanam) — Mr. Raja Aiyar

Respondents (including Advocate-General for Andhra Pradesh)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Krutha Krithya Rameswaraswami Varu v. R. Ramalingaraju

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