SRI SRI BOMMADEVERA SATTYNARAYANA VARAPRASADA RAO NAIDU BAHADURZAMINDAR MINOR BY GAURDIAN, COLLECTOR OF KISTNA, AS AGENT TO THE COURT OF WARDS Vs. DASIKA SRIRAMULU

JUDGEMENT

(1.) Plaintiffs-respondents are ryots holding under 3rd defendant-appellant--a zemindar, who represents 2nd defendant, now deceased. First defendant is the Secretary of State. Plaintiffs case is that their holding is mamool wet inam and has always been held as such without payment of rent or water rate. So long as the zemindar made the collection of water rate on behalf of Government, there was as between him and Government no necessity to ascertain the identity of the mamool wet lands, since he could simply deduct the amount corresponding with their total extent from the total sum otherwise payable by him. When, however, before Fasli 1312 he abandoned the collection, an ascertainment of the mamool wet became necessary; and owing to the incorrect information, which 2nd defendant s servants gave, Government, represented by 1st defendant, collected water rate from plaintiffs, which they were not liable to pay, since their land was mamool wet. They sue to recover the payments made under protest for fasli 1314. Their payments included not only the ordinary water rate, bat also the penal water rate imposed in consequence of their having taken water without application.

(2.) The foregoing represents plaintiffs case as stated in their plaint, its foundation as regards both the ordinary and penal water rate being given as against 2nd defendant as his tortious act in giving incorrect information to 1st defendant. The Court of first instance, however, in its judgment (after remand), dated 21st September 1910, treated the claim against both defendants as res judicata in circumstances to be referred to; and the lower Appellate Court, holding that, there was no res judicata, treated it as based on Section 70, Indian Contract Act, observing that the "zemindar had the benefit of the water for the rest of his lands to the exclusion of plaintiffs inam" and presumably meaning that he had the benefit of plaintiffs payment in consequence of the exemption of some part of the rest of his lands. It exonerated the 1st defendant, who is not a party to this appeal.

(3.) This, so far as the ordinary water rate is concerned, was a possible basis for the decision and may be regarded as covered by the very general issues framed. Moreover the grounds of appeal relating to the discrepancy between it and the pleadings have not been pressed as regards this part of the case. But, Section 70 being in question, 3rd defendant s objection that the finding of fact above referred to is not supported by, or has not been reached after consideration of, the evidence must be allowed. The Court of first instance, no doubt, after dealing with the case as one of res judicata, admitted all the evidence adduced, but it simply recorded its findings without discussion of it or reference to Section 70; and the lower Appellate Court found, as stated above, also without applying its mind to the evidence in detail and without attempting to decide whether it did or did not support its assumption that the zemindar had in fact been exempted from liability to an extent corresponding with the payment made by plaintiffs.