[This Second Appeal was first heard on the 25th March 1915, by Sadasiva Aiyar and Napier, JJ., who made the following]

Napier, J.

This is an appeal from a judgment of the Temporary Subordinate Judge of Coimbatore dismissing a suit brought by one Narayanaswamy Aiyar, a sub-lessee of certain ryotwari lands, against the ryotwari owners to recover damages for an a lleged illegal distraint by the defendants for rent, the ground for the dismissal being that the District Munsifs Court had no jurisdiction to entertain the suit.

The plaintiff, together with his immediate lessor, had previously instituted a suit in the Revenue Court against the same two defendants under Sect. 95 of Madras Act I of 1908, praying for the cancellation of the attachment of the crops and costs and such further and other relief as the Court might deem fit. The Deputy Collector directed that one Palani Mudali, the other co-lessor of the plaintiff, should be added as plaintiff, and this was done. Subsequently the three plaintiffs withdrew their suit stating that they intended to bring a fresh suit for damages before the Civil Court.

The Lower Appellate Court held on the construction of Sect. 213 and the Schedule of the Madras Estates Land Act that the Civil Court had no jurisdiction.

The Madras Estates Land Act 1 of 1908 was passed to amend and declare the law relating to the holding of land in estates. An estate is defined by Sect. 3 of the Act as being the whole or any part of any permanently settled estate or zamindari, any unsettled palaiyam or jaghir, certain plots in village inams and any portion of such villages. Admittedly land held under ryotwari tenure does not come within the definition of an estate. We find, however, that one chapter of the Act has been made partially applicable to such holdings. This is Chapter VI, which deals with the recovery of rent by suit or by distraint and sale of moveable properties or of the holding. Sect. 77 of that Chapter entitles a landholder to bring a suit before the Collector for the recovery of the arrear of rent and also to distrain the produce of the land or trees in the defaulters holding. The distraint complained of in this suit was of the produce in the defaulters holding, though the crops distrained belonged to the sub-lessee.

Sect. 96 entitles a defaulting ryot or cultivator to file a suit before the Collector to set aside the distraint within 15 days from the date of the service of notice by the sale officer on the defaulter under Sect.

95. It was under this provision that the lessee from the ryot and his sub-lessee brought their suit in the Deputy Collectors Court. Sect. 134 is as follows:

The provisions contained in this chapter for the recovery of rent . . . . by distraint and sale of moveable property shall apply, as far as may be, . . . . .to the recovery of rent by a land-owner under ryotwar settlement . . . . from a tenant from whom he has taken a written agreement..

The first thing to be noticed is that Sect. 134 does not extend to a ryotwari land-owner the whole of the rights given by Chapter VI. It does not entitle him to bring a suit before the Collector to recover his rent. Nor does it entitle him to exercise the powers given to a landholder of selling the holding. The omission of these two powers of landholder from the section throws, in my opinion, considerable light on the extent to which the other sections of the Chapter are applicable. The Revenue Court has no jurisdiction to entertain a suit for rent and it has no jurisdiction to permit the sale of the holding; that is to say, where the remedy requires the intervention of the Collector, the procedure is not applicable to ryotwari holdings. No permission or intervention of a revenue officer is required for the exercise of the right of distraint and it is only after the property has been distrained and it is sought to recover the amount by the sale of the property that any public officer intervenes. That is the sale officer referred to in Sect. 79, a statutory official created by Act VII of 1839. This officers position is analogous to that of a sheriff with regard to sales in execution. Sect. 2 of the Act referred to is as follo ws:

All Tahsildars . . . shall be vested with the powers of Commissioners for the sale of property distrained for arrears of rent or of revenue.

His functions have always been the same whether he was selling the property taken by the process of distress under the provisions of the Rent Recovery Act (Madras Act VIII of 1865) or the Revenue Recovery Act (Madras Act II of 1864). [ Vide Sect. 2 of the former Act and Sect. 9 of the latter]. It is, therefore, clear that so far as the procedure for recovery of arrears by distraint is concerned there is no intervention by the Collector. Turning again to Sect. 134 of the Madras Estates Land Act, we find that the provisions applicable are limited to those for the recovery of rent and they are made applicable by sub-clause 2 to the recovery of rent. No section in this Chapter, which does not provide for the recovery of rent, is applicable to the case of ryotwari tenants and no portion of any section which does not deal with the recovery of rent is applicable either; and further the language being shall apply to the recovery of rents by a land-owner, any provision under which a person whose property has been distrained can seek relief is not applicable either, such provision not being one for the recovery of rent by a land-owner. This conclusion, based on the strict language of the section is, in my opinion, fortified by the examination of the procedure in th e remaining sections. In my view all the section does is to make statutory provision for the exercise of the right of distraint by a ryotwari landowner and to provide certain formalities for the protection of the lessee. It was not intended to give the Revenue Court any jurisdiction to entertain a suit either by the land-owner to recover the rent or by the tenant to set aside the distraint. I now turn to the other provisions of the Act. Sect. 189 provides that a Collector shall hear and determine all suits and applications of the nature specified in parts A and B of the Schedule. The Schedule contains an enumeration of suits. One of them is by a ryot to set aside distress under Section

95. This description obviously does not apply to a ryotwari tenant, for, admittedly, he is not a ryot within the meaning of the Act. And it is a fair observation that the failure to provide for a suit by any other person to set aside a distress is an indication that the procedure under Sect. 95 was not intended to be made applicable to persons other than ryots. The last description in Schedule A is a suit for damages not otherwise provided for. The Subordinate Judge applies Sect. 213 to description of suit. The language of Sect. 213 is

any person deeming himself aggrieved by any proceeding taken under the colour of this Act, or by neglect or breach of any of its provisions shall be at liberty to seek redress by filing a suit for damages before the Collector

and holds that Sect. 189 ousts the jurisdiction of the Civil Court with reference to any dispute or matter in respect of which such suits might be brought. In my opinion, this is giving too wide a meaning to the words for damages not otherwise provided for. Sect. 213 itself does not bar the right of action in a Civil Court, unless that right of action is taken out of the jurisdiction of the Court by the Act. If the words in the Schedule are to be given the wide meaning contended for, then the provisions of sub-sections 2 and 3 of Sect. 213 are nugatory. Therefore, some limitation must be put on the words damages not otherwise provided for. It is extremely difficult to say what those limitations are, and I do not propose to consider any case other than the one before us.

As pointed out above, nothing but the provisions laying down the procedure for distress is incorporated in the law governing the relations between a ryotwari land-owner and his tenant. It seems to me, therefore, that the legislature, which refrained from extending the right of suit under Sect. 95 to such a tenant, cannot have intended to make the Collectors Court the sole Court in which a tenant could seek damages for an illegal distraint. The suit under Sect. 95 is one to contest the distraint. In nature it does not differ from one for damages; and as the former is not extended to the ryotwari tenant, I canot think that the legislature intended to bar his suit in the ordinary Court by the wide words for damages not otherwise provided for in the Schedule. I am inclined to the view that the Schedule suits are all suits with reference to land in an estate. As the matter, however, is not free from doubt, and as my learned brother feels more difficulty in the matter than I do, I agree that the following question be referred to a Full Bench.

Is a suit by the tenant of a ryotwari land-owner or of any sub-tenant of such for damages for illegal distraint of moveable property, growing crops or the produce of land or trees, in a defaulters holding solely cognisable by the Revenue Court

Sadasiva Aiyar, J. I also think that it is appropriate that the question should be settled by a Full Bench. While Sect. 78 (paragraph 1) of the old Act VIII of 1865 allowed an unqualified right of resort to the Civil Court to obtain damages for acts professedly done under the authority of that Act, notwithstanding the summary suit remedy given by Sect. 49 of that Act to be filed before the Collector for that same relief of damages, Sect. 213, cl. 2, of the Estates Land Act, gives a right of action in the Civil Court only in cases not taken out of its (the Civil Courts) jurisdiction by this Act. Further, suits before the Collector are not distinguished by the designation of summary suits in the new Act, that is, distinguished from suits before the Civil Court. It seems also clear that resort to Civil Courts was intended b y the new Act to be discouraged as far as possible. Suits which are not for damages , though arising from acts professedly done under the statute, lie, no doubt, ordinarily in the Civil Courts (see Gouse Moideen Saib v. Muthialu Chettiar (14 M.L.T., 523; 26 MLJ., 36) [LQ/MadHC/1913/228] .

[This second appeal was heard by the Full Bench, constituted as above on 2nd and 3rd August 1915.]

Mr. N. Srinivasacharya (with Mr. K. Naraina Rau ) for the Appellant:The Civil Court had jurisdiction to try the suit. Sect. 213 of the Madras Estates Land Act, read with Sect. 189 of the said Act and Schedule A thereto, does not take away the jurisdiction of the Civil Courts in respect of suits of the kind now before the Court. The effect of holding otherwise would render nugatory the sub-sections 2 and 3 of Sect. 2

1

3. Sect. 134 does not extend to a ryotwari landholder the benefit of the whole of Ch. VI of the Madras Estates Land Act. Only certain portions of the Act are made available to him. For instance, he cannot sue for rent before the Collector. Only such portions of the Chapter which relates to the recovery of rent apply to a ryotwari landholder. Further that section is not intended to give a ryotwari tenant a right to sue for setting aside a distraint, as admittedly he is not a tenant within the meaning of the Act. The present suit does not at all come within the class of suits for damages not otherwise provided for. Further, the suit is not by a tenant but by a sub-tenant.

Mr. L. A. Govindaraghava Iyer for the Respondents:The present suit is one the cognisance of it by the Civil Court is debarred by the provisions of Sects. 189 and 213, and Sch. A of the Madras Estates Land Act. Sect. 134 enables a ryotwari land-owner to avail himself of the summary remedy provided by the Act for the recovery of rent. Sect. 213 (1) gives any person deeming himself aggrieved by any proceedings taken under color of the said Act a right to sue for damages before the Collector. The only other question is whether the jurisdiction of the Civil Courts to entertain such suits is taken away by Sect. 189. Sub-sections (2) and (3) of Sect. 213 do not preserve the concurrent jurisdiction of the Civil Courts. In the first place, sub-sections are only in the nature of provisos and it is not legitimate to cut down the operative portion of the section, to which these provisos do not in terms apply, merely because these provisos would be meaningless or senseless. L.R., [1897] App. Cas., 647. My submission is that sub-sects

. (2) and (3), which correspond to old Sects. 49 and 78, have been inadvertently retained. Further, it is not that sub-sects

. (2) and (3) are rendered nugatory by holding that the Civil Courts have no jurisdiction in respect of suits of the present kind. There are other classes of suits, such as those for injunction, declaration, possession, etc., in respect of which the jurisdiction of the Civil Courts is preserved. Vide I.L.R., 27 Mad., 483, and 26 M.L.J.,

36. Suits for pecuniary damages alone are taken away from the cognisance of the Civil Court.

Mr. N. Srinivasacharya briefly replied.

Opinion.

John Wallis, CJ.

[1] I do not think that the fact the proceedings for the recovery of rent by distraint and sale of moveable property which have given rise to this suit, were taken by a land-owner under ryotwari settlement pursuant to Section 134 of the Madras Estates Land Act, or the fact that the present suit was instituted in respect of proceedings so taken not by a tenant of such land-owner but by a sub-tenant makes any difference, because in my opinion the effect of Section 134 is to enable such a land-owner though not governed by the general provisions of the Act to avail himself of the summary remedy thereby provided for the recovery of rent, and the effect of Section 213 Sub-section (1) is to give "any person deeming himself aggrieved by any proceedings taken under the colour of this Act" a right to sue for damages before the Collector, words which are sufficient to give the Collector jurisdiction in a suit of this nature if filed before him,

[2] The question is as to whether suits as to which jurisdiction is conferred upon the Collector under Section 213(1) are withdrawn from the jurisdiction of the Civil Courts by Section 189.

[3] Sub-sections (2) and (3) of Section 213 seem at first sight to suggest that it was contemplated that there should be concurrent jurisdiction in the Collector and the Civil Court in suits falling under Sub-section (1), but as against this we have the-express provisions of Section 189 which after collecting in schedules A and B all the suits and applications to be entertained by the Collector mentioning in each case the governing section goes on to provide explicitly that no Civil Court in the exercise of its original jurisdiction shall take cognizance of any dispute or matter in respect of which such suit or application might be brought or made. These provisions are express and I cannot find anything repugnant to them in the terms of Section 213 which would justify us in holding that suits which fall under Sub-section 1 of that section are triable concurrently by the Civil Court. It is, I think, immaterial whether the result of so holding is to leave little or no effective operation for Sub-sections (2) and (3), for these Sub-sections are in the nature of provisoes, and as pointed out in West Derby Union v. Metropolitan Life Assurance Society (1897) A.C., 647, it would not be legitimate to cut down the operative portion of Section 189 to which these provisoes do not in terms apply merely because otherwise the provisoes would be "meaningless and even senseless." What seems to me probable in this case is that Sub-sections (2) and (3) which were drafted in place of Sections 49 and 78 of the old Act were retained by inadvertence after the jurisdiction of the Civil Court had been taken away by Section 189 in this present form. After all both Sub-section (2) of Section 213 and Section 78 of the old Act are nothing but statements of a well-known rule of statutory construction that the creation of new jurisdiction does not affect previously existing jurisdiction in the absence of express provision. I desire to say, though the point in my opinion does nob arise for decision, that the effect of provisions of Sub-section (2) is not to preserve a concurrent jurisdiction in the Collector in the case of suits under Section 91; in my opinion suits under Section 91 are exclusively within the jurisdiction of the Civil Court and do not come within the provisions of Sub-section (1) of Section 213 giving the Collector jurisdiction, because I think that apart from Section 91 no suit would lie to call in question lawful orders of the Collector passed under Section 89 or 90 on the ground that the plaintiff was aggrieved by such lawful orders. The proceedings contemplated under Section 213 (1) are in my opinion unlawful proceedings done under the colour of the Act.

[4] Next as regards Sub-section (3), I find it difficult to accept the suggestion that the legislature went to the trouble of enacting Sub-section (3) for the purpose of saving the right to sue in a Civil Court for reliefs other than damages in respect of causes of action as to which suits for damages lie before the Collector under Sub-section (1) even if Sub-section (3) as drafted permits of such suits. These considerations here do not affect my judgment in the order in question and I would answer the reference in. the affirmative.

Sadasiva Ayyar, J.

[5] It seemed to be admitted in the arguments on both sides that Clause (2) of Section 213 of the Estates Land Act and the proviso which forms Clause (3) of the same section are somewhat ambiguously worded.

[6] Reading however Section 213 (1), Section 189 and Clause (2) of schedule A together, I feel little doubt that the present suit (which is a suit seeking redress by way of damages and brought by a person feeling himself aggrieved by proceedings taken under the colour of Sections 77 and 134 of the Act) has been taken away out of the jurisdiction of the Civil Court. Clause 2 of Section 213 preserves the Civil Court s jurisdiction only incases " not taken out of its jurisdiction by the Act" and suits for damages brought on particular causes of action are so taken away by Section 189 of the Act read with Section 213, Clause (1) and Schedule A. 21. In other words, Clause 2 of Section 213 saves the Civil Court s jurisdiction only where the suit is not brought for the relief of pecuniary damages for proceedings taken under colour of the Act, that is, where it is brought for other remedies (such as injunction, declaration, possession, etc.), if any, open to the plaintiff under the ordinary law. Similar provisions in other rent, revenue and similar special Acts showing a reluctance on the part of the legislature to take away the jurisdiction of Civil Courts over suits involving claims for other than pecuniary damages while conferring jurisdiction on Revenue Courts to entertain suits for the award of pecuniary damages in parti- cular cases, can, it seems to me, be quoted in support of the above view, The proviso forming Clause 3 of Section 213 takes away the jurisdiction of the Civil Court even in respect of cases claiming other redress than pecuniary damages if the redress of damages bad been already claimed by the plaintiff in a suit filed before the Collector under Clause 1 of Section 213.

[7] After giving my best consideration to the whole matter, I agree with my Lord that the present suit is exclusively cognizable by the Revenue Court. It is unnecessary for the decision of this case to express a final opinion on the questions whether the remedy by a suit in the Collector s Court to set aside a distress under Section 95 can be availed of by a Government ryot s tenant whose moveables have been distrained under Section 77 and whether assuming that he could do so, the jurisdiction is an exclusive one in the Revenue Court, schedule A, Clause 10, referring only to a suit by a "ryot" under Section 95, and the word "ryot" being defined in Clause 15 of Section 3 of the Act so as to exclude a Government ryot s tenant from its connotation.

Srinivasa Ayyangar, J.

[8] Defendants Nos. 1 and 2 who are landowners under ryotwari settlement with the Government availing themselves of the powers given them under Section 134 of the Madras Estates Land Act, distrained the crops on the land of the plaintiff, their tenant. The distrained crops were subsequently sold. The plaintiff complains that the distraint was illegal and files this suit for damages in the District Munsif s Court, Tirupur. The question is whether a Civil Court has jurisdiction to entertain a suit of this description. The solution depends on the correct interpretation of Sections 213 and 189 of the Estates Land Act. Clause 1 of Section 213 which corresponds to Section 49 of the repealed Rent Recovery Act, Madras Act VIII of 1865, gives jurisdiction to Revenue Courts to entertain suits for damages filed by persons deeming themselves aggrieved by any proceedings taken under colour of the Act. That the present suit is a suit of that nature scarcely admits of doubt and the plaintiff, if he had chosen, could have filed this suit before the Collector, But this would not take away the jurisdiction of the ordinary Civil Courts and Clause 2 of Section 213 which corresponds to the first clause of Section 78 of the repealed Act provides that "this section shall not be deemed to bar any right of action in a Civil Court in any case not taken out of its jurisdiction by this Act." Now Section 189 of the Act takes away the jurisdiction of the Civil Courts in respect of suits of the nature specified in part A of the schedule to the Act and suits of the nature now in question are specified in the schedule (see No. 21 of the schedule). The words of the section are quite clear and unambiguous, and if the matter had rested there, there could be no doubt that a Civil Court could not take cognizance of this suit. But it is said that this construction renders the proviso to Section 213 meaningless, because there can hardly ever be a case to which it would apply. I think it quite possible to give a meaning to the proviso consistent with the construction I put on Section 189. Persons deeming themselves aggrieved by proceedings taken under colour of the Act are not confined to relief by way of damages. They may be entitled to ask for other reliefs such as an injunction, a declaration, or recovery of the specific property. See Zamindar of Ettayapuram v. Sankarappa Reddiar (1904) I.L.R. 27 Mad. 483 (F.B.). Even if the appellant is correct in his contention that the proviso would be rendered nugatory by the construction I put on Section 189, following the principle of the decision in West Derby Union v. Metropolitan Life Assurance Society (1897) A.C., 647, I should still come to the same conclusion as the words of Section 189 are quite clear and unambiguous.

[9] I agree to the answer to the reference.