KATIKARA CHINTAMANI DORA & ORS. versus GUNTREDDI ANNAMNAIDU & ORS.

KATIKARA CHINTAMANI DORA & ORS.

GUNTREDDI ANNAMNAIDU & ORS.

December 11~ 1973.

(0, G. PALEKAR, V, R. KR!SHl'\A !YER AND R. S. SARKARIA, JJ.]

Madras Estates (A bolltlo11 and Conversion Into Ryotwarl) Act 1948-.1. 9(1)-Jurlsdlctlo11 of th• Stttl•ment Of/im and Civil Court-Wliethtr finding of Selllement Of!im could b• qumlo11•d in Clvll Court-Effect of A·me11dln1 Act on pending act/0111,

The Settlement Officer under the Madras Estates (Abolition· and Conversion into Ryotwari) Act, 1948 s110 motu made an inquiry as to whether parti• cular villa*e notified by the State Government was an estate or not within the contemplation of s. 9(2) of the Act and held that it was not an "inam eslate" within the meaning of s. 2(7) of the Abolition Act b'ut that the villaae become an estate by virtue of Madras Estates Land (3rd Amendment) Act, 1936.· The appellants unsuccessfully appealed to the Estate Abolition Tribunal. The appel· lant then instituted suit (O.S. 47 of 1953) against the State Government for declaration that the village was not an ''estate" under s. 3(2)(d) of the Madras Estates Land Act. 1908 and consequently Madras Estate (Reduction of Rent) A'ct, 1947 and the Abolition Act were not applicable ·to it. The trial court decreed the suit. The State preferred an appeal. During the pen· dency of the appeal the appellant filed suit (0.S. No. 101 of 1954) agoinst the respondents for recovery of certain amount as rent or damages in respect of lands cultivated by them in the village in dispute. The respondents con· tended that the village was an estate within the meaning of the Act and that it had been so held by the Settlement Officer. Ultimately both the parties. filed joint memo on 26th March, 1958 that they would abide by the decision of the High Court or the Supreme Court in the appeal or revision arising. out of the suit (O.S, 47/53) on the question whether the village was or-Was not an "estate'' ur:der s. 3(2)(d) of the Madras Estates Land Act. The Hi~h Court (in A.S. No. 668 of 1954 which was an appeal arising out of o.s~ 47 of 1953) confirmed the decree of the trial court that the :village in dispute was not an 'estate'. The State did not appeal, with the result that the High Court's decision became final and the decree dated 28th March, 1958 became effec· tive.

Against the decree of 28th March, 1958 the· appellants preferred an appeat. (A.S. 239 of 1961) to the High Court. The appeal related only to the extent of the land in the possession of the respondents and the quantum of rent or damages. The appellants• claim was, that the entire land ~as under cul!ivation of the respondents and so the tower court was wrong 1n not decreeing the appellants' claim for rent or damages i1? toto. The respondents raised :1 rreli~ minary objection at the time of hearing of the appeal that the ~uit itsel was incompelent as the Civil Court had no jurisdiction to decide whether the suit village was an estate or not and, therefore, any dCcision given by the High Court would not bind the parties and the decree in O.S. 101 of 1954 would be without iuri-;diction rendering it null and void and that the Settlement Officer was the competent authority to decide the tenure of the village and his deci· sion had be·come final in view of the introduction .of s. 9A by Act 20 of 1960. The High Court upheld the preliminary otijection of the re~pondent!' and rejected the contentions of the appellants that since s. 9 was inserted by an amendment which came into force on 23rd June, 1960, it could not affect the compromise decree of the court passed on March 28, 1958 or the decree of the High Court by which both the parties agreed to abide by the decision of tbe-High Court or the Supreme Court in appeal or revision arising out of O.S. 47 of 1953. The High Court held that the Civil Court was not the forum for the suit a~ framed by the a.ppella.nts and the questions raised in the suit 2-L748SupCf/74

including tbe claim for arrears of rent or damages, were outside the jurisdic-tion of the Civil Court, and so dismissed the appeal.

Allowing the appeal.

HELD : I (a) There is no doubt that the question was within the compet-ence of the Civil Court. Under the Abolition Act, as it stood at the material date, the inquiry of the Settlement Officer could legitimately be confined to the ascerrainment of only two disputes of fact, viz., (i) Was the village an "inam village''? (ii) If so, was it an 'Inam Estate' as defined in s. 2(7) of the Abolition Act'! Once issue (ii) was determined, the _inquiry would be com-ple:e and the limits of his exclusive jurisdiction circumscribed by s. 9(1) reached; if he went beyond those limits to investigate and determine something which is unnecessary or merely incidental or remotely related to issue No. (ii), then such incidental or unnecessary determination could be questioned in Civil Court. [668FGJ

(b) Any finding recorded by the Settlement Officer regarding the property in question being an 'inam village' or not, is not final or conclusive it being finding of jurisdictional fact only, the pre-existence of which is sine (lua nou to the exerciSe of his exclusive jurisdiction by the Settlement Officer. [668H]

(c) The legislature Oiust have visualised that under the cloak of an erro .. neous finding as to the existence or nan-existence of this pre-requisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him or refuse to exercise jurisdiction vesting in him. Perhaps that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer /Tribunal and his erroneous finding on that fact is liable to be questioned in Civil Court. Once it is held that determination of this fact is not matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot be debarred on the basis of any docbine of res /udicata from getting the matter fully and finally adjudicated bv court of competent jurisdiction. [669B-C; El

v. State of Andhra Pradesh

Addanki Tiruvenkata Tata ·nesika Charyulu A.LR. 1964 S.C. 807 followed.

District Board, Taniore v. Noor Mohammed, (19S2) 2 MJ. S86 (S.C.) re· ferred to.

(2) It is well settled that ordinarily when the· substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was taken unleu the new statute shows clear intention to vary such rights. plain reading of the impugned Act would show that there was nothing of this kind which expressly or by necessarv intendment affects pcndi112 actions. [670C-D]

(b) There is no iion-obsrante clause in the amendin.Q: Acts 17 and 18 of 1957 with reference to pending or closed civil actions. These amending Acta were published in the government gazette of December 23, 1957 and will therefore be deemed to have come into force from that date only. They could therefore be construed as having prospective operation only. [670G-HJ

(c) In the Amending .fiCt 20 of 1960 also no back date for its commence-ment has been mentioned. It will, therefore, be deemed to have commenced on June 23, 1960 which is the date on which it was published in the Gov-err.ment gazette. r674El

Section 9A takes iil its retrospective sweep only those deci!ions of the Settlement Officer or the Tribunal which at the comencement of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non-est by decree of competent court. [675~FJ

In the instant case the decision of the Settlement Officer dated September 2, 1950 was not such decision. It had ceased to exist as result of the inter-· linked decree in O.S. 47 of 1953 and 0.S. 101 of 1954 passed before the enactment of the Amending Act. The Amending Act of 1960, therefore, does not in any way affect the finality or the binding effect of those decrees. [67501

(d) Order 23 rule 3 C.P.C. not only permits partial compromise and adjustment of suit by lawful aa;reement, but further gives mandate to the court to record it and pass decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful the decree to the extent it was consent decree was not appealable because of the express bar in s. 96(3) of the Code. [672E]

Raja Sri Sai/endra Narayan Bhanja Deo v. State of Orissa [1956] S.C.R. 72, Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality [19701 1 S.C.R. 388 and Reid v. Reid 118861 31 Ch.D. 403 at 408, followed,

(e) In any suit the parties, in order to ·avoid unnecessary expenses and botheration, could legitimately make an agreement to. abide by determination on the same point in issue in another pending action in an advanced stage. There was nothing unlawful and improper in such an arrangement particularly when the interests of the respondents wei'e sufficiently safeguarded by the State. By no. stretch of reasoning it could be said that the agreement was collusive or was an attempt~ to contract out of the statute. In the instant case as soon as the parties made the agreement to abide by the determination in the appeal ( A.S. (i68) and induced the court to pass decree in terms of that agreement the principle of estoppel underlying s. 96(3) C.P.C. became operative and the decree to the extent it was in terms of that agreement became final and binding between the parties. It ·was as effective in creatina; an estoppel between the ~artics as iudgmcnt on contest. [672F·G & 673C] ·

In the instant case that part of the decree in suit No. 101 'of .'1954 and the appee.t from that decree could not be said to be continuatiQD. 'Of that part of the claim which had been settled by agreement. The combined effect of the two integrated decrees was to completely vacate and render non-td decision dated September 2. 1950 of the. Settlement Officer. {673Fl

Raja Sri Sailendra Narayan Bhanja Deo v. State of Orissa [1956] S.C.R. 72 applied.

Per .f(rishna Tyer, I. concurring:

Courts have to be anchored to well-known canons of statutory comtructlon and if they ate out of tune with the law maker's meaning and purpose the legi-timate means of setting things. right is to enact new Interpretation AcL f678Bl The .Indian Constitution, adopting the fighting faith of equal; protection of the laws to all citizens, necessarily contemplates new jurisprudence where vested rights may be, and qften-times are, ex~ensively interfered with for achieving the founding fathers' social goa~s. Legislative exercises directed to-F wards distributive justice as in the present case, cannot be considered in the Ji~ht of" .dated value system, tflough sanctified by bygone decisions of Courts. T677Hl

In the present case the Act in question is clear about its intent '1ld its appli-cation giVes little difficulty.

CIVIL APPE0LLATE JURISDICTION: Civil Ap~al No. 1936 of 1967

From the Judgment and Decree dated the 14th October, 1966 of Andhra Pradesh High Court in Appeal No. 239 of 1961 and Memo of Cross Objections therein arising out of the judgment and decree dated 28th March 1958 of the Subordinate Judge, Srikakulam in Original Suit No. 101 of .1954.

M. Natesan, K. Jayaram and R. Chandrasekhar, for the appellant,

P. Parmeshwara Rao and T. Satyanarayana, for the respondent.

The Judgment of D. G. PALEKAR, and R. s. SARKARIA JJ. was delivered by SARKARIA, J. v. R. KRISHNA IYER, J .. gave separate Opinion.

SARKARIA J.-This appeal by certificate involves an examination of the limits of the respective jurisdictions of the Settlement Oflicer/Tribu· oal and the Civil Court in relation to an inquiry uoder s. 9 ( 1) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short Abolition Act) and the effect of the Amending Acts 17 and 18 of 19S7 and Act 20 of 1960 on cases regarding such an inquiry pending in or decided by the Civil Courts. It arises out of the follow-ing facts :

The lands in dispute are situated in village Kadak:alla, Taluk Palakonda. On June 13, 1950, the then State Government issued and published notification under the Madras Estates (Reduction of Rent) Act, 1947 (for short, Rent Reduction Act) in respect of this village. ·Subsequently, the Settlement Officer of Srikakulam suo mot11 made an enquiry as to, whether this village was an "estate" or not within th~ contemplation of s. 9(2) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, called Abolition Act) and by an o;der, dated September 2, 1950, held that it was not an 'inam estate' within the meaning of s. 2(7) of the Abolition Act. The Settlement Officer further recorded finding that village Kadakalla became an estate. by virtue of the Madrns Estntes Land (3rd Amendment) Act, 1936. Against that order of the Settlement Officer, the appellants herein carried an appeal to the Estates Abolition Tribunal, Vizianagaram. The Tribunal by its order, dated Septem· ber 16, 1952, dismissed the appeal in limine, with the observation that the decision of the Settlel)lent Officer being in their favour the appellants had no right of appeal. The appellants then instituted O.S. 47 of 1953 in the Court of the Subordinate Judge, Srikakulam against the State Government for declaration that Kadakalla village was not an 'estate' under s. 3(2) (d) of 1908 Act, and consequently, the Rent Reduction Act and tne Abo-lition Act were not applicable to it. The trial court decreed the suit. Aggrieved by the decree, the Stnte preferred an appeal (AS. 668 of 1954) to the High Court of Andhra Pradesh.

Taluk

During the pendency of the said appeal, the appellants instituted Original Suit No. 101 of 1954 (out of which the present appeal has arisen) in the Court of Subordinate Judge Srikakulam, against the respondents herein and others for the recovery of Rs. 15.681 '19 as rent or damages for the year 1953 in respect of the Innds cultivated by them in the area of village Kadakalla.

The suit was resisted by the respondents inter alia on the ground that the suit village was an 'estate' as defined in s. 3(2)(d) 'of the 1908 Act, and that it had been so held by the Settlement Officer '" per his Order dated September 2, 1950. Tt was further averred rhat the defendants not being parties to O.S. 47 of 1953. were not bound by the dec_isio~ iri that case. Tt was added t~ot the question us ro whether this village was an estate cir not. was pending in the Hkh Court of Andhra Pradesh in anpeal from the decision 'in O.S. 4; of 1953, and as such, was sub iudice. The jurisdiction of the Subordinate

Judge to try the suit (0.S. 191 of 19541) was also questioned. The claim for rent or damages was also resisted.

On January 22, 1958, the respondents herein made an application for permission to file an additional written statement for addinf the pica that the. suit village is an 'inam estate'. On M~h 17, 958, the trial court dismissed this application holding that the question sought to be raised, was already covered by Issue .No. I.

The trial court framed as !llany as eleven issues, out of which Issues I, 6 and 8 were as follows :

( 1) Whether the suit village is an es.tale within the mean-ing of Section 3(2) (d) of the Madras Estates Land Act?

( 6) Whether the plaintiffs are barred and estopped to claim rents in view ol prior pattas and rent decrees that were previously obtained?

( 8) Whether this Court has no jurisdiction to try the suit?

On .March 26, '1958, the o'.\dvocates for the part.ies filed joint memo to the effect that "both parties agree to abide by the final de· cision whether in the High Court or in the supreme Court,. as the .. case may be, in the appeal or revision, arising .out of 0.S. No. 47 of 1953 on the file of this Court on the question whether the ··suit vil-lage Kadakalla is not an estate under s. 3(2) (d) of the Madras Estates Land Act, as amended upto date". As result of this com-.promise, .it was held that the decision of Issues I, 6 and 8 would follow the final decision in O.S. 47 of 1953.. The remaining Issues were tried and decided on merits. On March 28, 1958, the trial court keeping in view the. joint memo filed by the parties and its find-ings on the other Issues, passed decree in these terms :

"In case it is ultimately decided by the High Court or the Supreme Court, as th~ case may be, in the appeal or revision arising out of O.S. No. 47 of 1953 on the file of this Court that the.(uit village Kadalrnlla is not an estate within the mem1ing;of s. ~(2) (d) of the Estates Land Act, the defen-'dants t.o pay to the plaintiffs the sum of Rs. 3,000/. with in· terest at St per cent per annum from 26-3-1958 with interest thereon and for costs, and that otherwise suit should stand dismissed with costs and that the decree should take effect from the date of the final decision of O.S. No. 47 of 1953 re-ferred to above."

The appeal (AS. 668 of 1954) arising out of O.S. 47 of 1953 was decided by the High Court on Febru~ry 12, 1959 whereby the decree of the triaj court declaring that village Kadakal!a was not an estate, was confirmed. The application of the State for issuance of certificate of fitness for appeal to the Supreme Court w,ns dismisseil by the High Court. The State ctjd not prefer any Special Leaye Peli-

tion in this Court, with the result, that the High Court's decision in that case became final and the decree, dated March 28,.1958, of the Subordinate Judge in O.S. 101 of 1954 also.became effective. After the disposal of its appeal (A.S. 668 of 1954), the Government issued G.O.R.T. No. 619-Rev. dated June 30, 1966, cancelling the earlier notifications in respect of this village notwithstanding the fact that prior to such denotilication, section 9-A had been inserted m the Abolition Act by the Amending Act 20 of 1960.

Appellant~ preferred an appeal (A.S. 239 of 1961) against the said decree, dated March 28, 1958, of the Subordinate Judge, to the High Court. Though in the Memorandum of Appeal, it was said. as usual, in general terms, that the "decision of the lower court is against law, weight of evidence and probabilities of the case", and that its decree was "worthless and did not conform to the re-auhements of section 2(2) of the Civil Procedure Code, yet, in substance, the appeal related only to the extent of the land in the possession of the respondents and the auantum of rent or damages. The appellants' claim was that the entire suit land, as alleged in the plaint, was under the cultivation of the respondents, and ,:onse-auentlv, the lower court was wrong in not decreeing the appellants' claim for Rs. 15,681119 as rent or damages, in toto.On April 6. 1962. the respandents filekl cross·objections con-tendin~ that the auestion as to whether Kadakalla village is or is not an 'estate' as defined in ~· 3(2}(d) of the 1908 Act, should have been gone into by the trial court and that the rent should have been decreed only in the sum 0f Rs. 551129. The High Court posted the appeal and the cross-objections for hearing in July, 1965. At that stage, on July 19, 1965 .. an applica-tion was made by the respondents praying that Exhts. B-196 and B-197. bein2 copies of the order. dated September 2, 1950, of the Settlement Officer anki the order dated September 16, 1952, of the Estate Abolition Tribunal, respectively, be read as additional evidence. It was contended that the Amentlin2 Act 20 of 1960 had added s. 9A to the Abolition Act, as result of which, the order of the Settlement Officer had acqvired 'statutory validity'; antl since the appellants did not file an appeal within two months from the com· mencement of the Amendme-nt Act, the decision of the Settlement Officer became fipal and binding on all the parties · including the appellants. In spite of opposition by the appellants, the High Court by its order, dated August 23, 1956, allowed this additional evidonce and the settin2 up of the new plea.

The appeal and the cross-objections were heard together in Au2Ust. 1966. The respondents raised preliminary objection that the suit itself was incompetent .·as the Civil Court had no jurisdiction to decide whether the suit villa~e is an estate or not and, therefore, any decision given by the High Court in appeal (A.S. 668 of 1954) would not bind the parties and the decree in the present suit (0.S. 101 of 1954) on the basis of the judgment and decree in A.S. 668

ol 1954. would be without jutisdictiQll renderin& it nu,! inti void, that the Settlement Officer was the competent authority to decide tho tenute of the villa2e and his decision bad become final in view of the introduction of Section 9A by Act 20 of 1960.

The preliminary objection of the respondents was uphell:l. The contention of the appellants, that since s. 9A was inserted by an amendment which came into force on June 23, 1960, it could not affect the compromise decree of the Court passed earlier on March 28, 1958 or the decree of the 'High Court whereby both the parties a~ed to abide by the decision of the High Court or the Supreme Court in appeal or revision arising out of O.S. 47 of 1953, wa.& rejected in these terms :

"We see no force in this contention as Section 9A is desiimed to meet such of the decisions where it has been held that the villa2e is not an inam estate as it stood after the 1936 Act and certainly the respondents can take advantaae of chanao in statute, if it is to their benefit and there could be no estoppel against statute and the rights accrued undcc statute. It cannot reasonably be contend· ed that the suit filed by :the appellants and the decree ob-tained have reached anv finality as an appeal is only the ~oll.tinualion · ot the proceedings instituted by the plaintiffs."

In the result. it dismissed the appeal holding that tile Civil Court was not the forum for 'the suit as framed by the appellants and the Questions raised in the snit includin2 the claim for arrears of rent or dama2es. were outside the iurisdiction of the Civil Court.

Before dealin2 with the contentions canvassed, it will be useful to have clear idea of the relevant statutory provisions, including the expressions uinam village", "inani estate'' and 11estate" as defined therein.

S. 3(2)(d) of the Madras Estates Lank:! Act. 1908, as it origi-F nally stood, defined "estate" as "any village of which the land revenue alone (i.e. melwararn alone) has been granted in inam to person not owing the kudiwaram (rights in soil) thereof, provided the irant has been made, confirme!i or recognised by the British Gov-erninent or as separated part of such villaJ?;e." In this definition, it wa.• not clear whether the inarndar had the melwaram alone or both melwaram arid kudiwararn. To remove this obscurity, the Madras Estates Land <Third Amendment) Act, (18 of 1936), substituted for the original sulrclause (d) in s. 3(2), this new clause:

"(d) anv jnam villaJ?;e of which the ifant has been made, con-firmed or recognised by the Government notwithstanding that subseauent tq the 21"ant, the village has been partitioned amon2 the nantees or the successors-in-title of the grantee or grantees."'

Section 3(2)(!1) was further amended by Madras Estates Land Amendment Act JI of 194'5 with retrospective effect from the date

on which the Third Amendment Act 18 of 1936 came into force. It inserted (among others) Explanation I, to this clause, which reads : '·Where i:rant as an inam is expressed to be of named vi!la)!;e, the area which forms the subject-matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name woulli have already been µanted on service or other tenure or been reserved for communal purpose•."

Explanation T makes it clear that (apart from being made, con· firmed, or recognised by the Government) , an in am grant in order to come within the purview of "estate" under s. 3(2)(d) has to be grant expressly made of named village or whole village, and not only of part od' the villa~e or of some defined area in village. How-ever, it remains and is \ieemed to be grant of whole village not-withstandin2 the exclusion of certain lands already granted on service or other tenure or reserved for communal purposes; nor does it cease to be grant of an entire village merely because the village has been subsequently partitioned amongst the grantees or their successors.

The interpretation of "estate" has behind it the authority .of beadroll of decisions. indudin2 that of this Court in District Board, Tanjore, v. Noor Mohammed(')

Next, in chronological order, is the Madras Estates (Abolition and Conversion into Ryotwari) Act. (XXVI of 1948). Section 1 (3) thereof provided that "it applies to all estates as defined in section 3, clause (2) of the Madras Estates Land Act. 1908 (except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, 1936. The material part of s. 2 of this Act says:

(3) "Estate" means zamindari or an under-tenure or an undertenure of an inam estate.

(7) "Inam Estate" -means an estate within the meaning of section 3. clause (2) (\!), of the Estates Land Act, but does not include an inam villa2e which became an estate by virtue of the Madras Estates Land (Third Amend-ment) Act, 1936".

Thus. to be2in with. this Act did not take in its fold post-1936 inam estates. Its operation remained confined to pre--1936 inam estates till the commencement of Act 18 of 1957, which we shall presenttv notice.

Section 9 of the AbolitiP:\I A;;t indicates the authorities empowered to determine Inam estate. It savs :

.. <I) As soon as ~y be after the passinl! of this Act, the Settlement Officer may suo motu and shall, on applica-H tion enauire and determine whether an inam village in hii; jurisdiction is an inam estate or not.

(1) (1952) 2 ~· J 586 (S. C.)

(2) Before holding the inquiry, the Settlement Officer shall cause to be J!ublished in the village in the prescribed manner. nqtice requiring all persons claiming an in· terest in any land in the village to file before him state-ments bearing on the auestion whether the village is an inam estate or not.

( 3) The Settlement Officer shall then hear the parties and afford to them r~asonable opPQrtunity of adducing all such evidence either oral or documentary as they may desire to examine all such documents as he has reason to believe are in the PQssession of the Government and have bearing on the question before him and give him deci-sion in writina.

(4) (al Any person deeming l)imself aggrieved by decision of the Settlement officer under sub-section (3) may with-in two months from the date of the decis_ion or such fur-ther time as the Tribunal mav in its discretion allow, appeal to the Tribu_nal. (b) Where any such appeal is preferred, the Tribunal shall cause, to be publisheli in the village in the prescribed manner Jl.Olice reauiring .all persons who have applied to the Settlement Officer under sub-section ( 1) or filed before him before it, and after giving them reasonable OPPOrtunitv of bein~ heard, give its decision.

( c) The decision of the Tribunal under this sub-section shall -be final and not be liable to be questioned in any court of la"I.·

(5) No decision of the Settlement Officer under sub-section (3) or of the -Tribunal u~der sub-section (4) shall be invalid bv reason of any defect in the form of the notice referred to in .sub-section (2) or sub-section (4) as· the case mav be. or the manner of its publication. ( 6.) Everv decision of the Tribunal and subiect to such deci· sion; every decision of the Settlement Officer under this section shall be binding Qtl all persons cJaimin~ an in· terest in any lan'd in the village, notwithstanding that any such person h~s. not oreferred any application or filed anv statement or adduced any evidence or appeared or participated in the oroceedin~s before the Settlement Officer or the Tribunal as the case may be.

(7) In the absence of evidence to the contrary the Settlement Officer anl::l the Tribunal mav presume that an inam village is an inam estate".

Madras Amendment Act 17 of 1951, introduced s. 64-A, which runs thus :

"64-A. (1) The decisiiln of Tribunal or Special Tribn-nal in anv proceeding un4er th;s Act. or of Jud~e of the

under Section 51(2), on any

High Court hearing case under Section 51(2), on any matter fallin~ within it! or his jurisdiction shall be binkling on the parties thereto, and persons claiming under them, in any suit of oroceed_ing in Civil Court in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding.

(2) The decision of Civil Court (not being the Court of Small Causes) on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under this Act before Tribunal or Special Tribunal, or Judge of the High Court under sec-tion 51 (2) in so far as such matter is in issue between the parties or persons aforesaid in such proceeding."

Jn 1957, two Amending Acts, both of which came into force on December 23, 1957, were passed. One was Andhra Pradesh Act 17 of 1957, which substituted the followin11 clause for clause(al in sub-section ( 4) of s. 9 of the. Abolition Act, 1948 :

(a) (i) Against de. ion of the Settlement Officer under sub-section ( 3), the Government may, within one year from the date of the decision or if such decision was given before the commencement of the Madras Estates (Abolition and Conversion into Ryotwari) (Andhra Pradesh Amendment) Act, 1957, within one year from such commencement and any persons aggrieved by such decision may within two months from the date of the decision or such further time as the Tribu-nal may in its discretion allow, appeal to the Tribunal.

Iii) If, before the commencement of th< Madras Estates (Abolition and Conversion into Ry-0twari) (Andhra Pradesh Amendment) Act, 1957, any order has been passed by the Government against decision of the Settlement Oftlcer on the ground that the Government were not competent to file an appeal under this clause or that such appeal was time-barred, the Tribunal shall on an application filed by the Government with-in one year from the commencement of the Amend· ment Act aforesaid, vacate the order already passed by it and pass fresh order on merits."

In clause (b) of s.9(4) of the Abolition Act, after the words "where such appeal is preferred", the words "by an aggrieved person, the Tribun'!J shall gi,,.e notice to the Government and in the case of all appeals whether by the Government or by an aggrieved person" were inserted.

The second Amending Act was Andhra Pradesh Act 18 of 1957, section 2 of which substituted the following section for sub-section (3) of s. I of the Abolition Act :

"It applies to all estates as defined in section 3, clause

(2), of the Madras Estates· Land Act, 1908, (Madras Act I of 1908)."

This Act further substituted the following clause for clause (7) of s.2 of the principal Act:

"In an estate" means an estate within the meaning of section 3, clause (2) (d) of the Madras Estates Land Act, 1908 (Madras Act I of 1908)''.

In s.9 of the principal Act, after the words "lnam 'village" or "the village", wherever they occurred, the words "or hamlet or khandriga granted as inam" were inserted.

It will be seen that Act 18 of 1957, made the Abolition Act appli· cable even to villages that became estates under the 1936 Amendment of the 1908 Act. For the purpose of the Abolition Act that distinc· lion between pre-1936 and post-1936 inam grants disappeared, and this Act becam.e applicable to all estates faUing under the definition in section 3 ( 2) of the 1908 Act.

Andhra Pradesh Act No. 20 of 1960, which came into force on the 23rd of June,. 1960 inserted in the Abolition Act, s.9-A, which provides :

. " Inquiry under section 9 not necessary in certain cases : If before the commencement of the Madras Estates (Aboli· tion and Conversion into RyotY<ari) (And.bra Pradesh Se· cond Amendment) Act, 1957 (Andhra Pradesh Act XVIII of 1957) (any decision was given under section 9 in respect of any village that it was not an inam estate as it stood defined before such commencement, and that decision was based on the finding that the inam village became an estate .by virtue of the Madras Estates Land (Third Anwndment) Act, 1936 (Madras Act XVlll of 1936) then :

ta) if the decision based on the finding aforesaid was given by the Tribunal under sub-section{4) of section 9, no fresh inquiry under that section shall be neces-sary for taking any proceedings under this Act on the basis of that finding; and

(b) if the decision ·based on the finding aforesaid was given by the Settlement Officer,· and no appeal was filed to the Tribunal, the Government or any person aggrieved, may appeal to the Tribunal against the decision and finding within two months from the com· mencement of the Madras Estates (Abolition and ment) Act, 1960 and if no such appeal is flied, tile finding of the Settlement Officer shall be final and no fresh inquiry shall be necessary for taking any pro-ceedings under· this Act on the basis of that finding."

The same Act 20 of 1960 introduced this section in the present .Act:

"12(1) No notification issued under sub-section (4) of section 1 of the principal Act duiing the period between the 23rd December, 1957, and the commencement of this Act, on the basis of finding recorded in any decision given l>~fore the said date by the Settlement Officer, or the Tribunal under section 9 of the principal Act (such finding being to the effect that the inam village l>ecome an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936 (Mad-ras Act XVIll of 1936), shall be deemed to be invalid or ever to have been invalid merely on the ground :

(a) that before issuing the notification no fresh inquiry ·was made by the Settlement Officer undtt the said section 9 after the said date; or

,(b) that the landholder or other person aggrieved had no occasion to appeal to the Tribunal against the deci-sion and finding of the Settlement Officer; and all such notifications issued and. actions taken in pursu· ance thereof during the period aforesaid shall be deemed always to have been validly issued and taken in accordance \Vith law.

(2) No suit or other proceeding challenging the validity of any such notification or action or for any relief on the ground that such notification or action was not validly issued or taken shall be maintained or conti-nued in any court, and no court shall enforce any decree or other holding any such notification or action to be invalid or grant any relief to any per-son."

The first question that falls for decision is : To what extent and in what circumstances the Civil Court is competent in suit to go into the question whether particular village is an "estate"?

By virtue of s. 9 of the Code of Civil Procedure, the Civil Courts have jurisdiction to decide all suits of civil nature excepting those of which their cognizance is either expressly or impliedly barred. The exclusion of the civil court's jurisdiction, therefore, is not to be readily assumed unless the relevant statute expressly or by inevitable impli-·cation do'5 so. The question thus further resolves itself into the issue: How far s.9(1) of the Abolition Act confers exclusive juris-diction on the Settlement Officer to determine inam estates?

This matter is not res integra. In Addenki Tiruvenkata Thata Desika Charyu!.u v. State of Andhra Pradesh, (') this Court held that there is an express bar to the jurisdiction .of the civil court to adjudi-oeate upon the question, whether "any inam village•• is an "inam

"inam

I. A.J.R. 1964 S. C. 807

pstate" or not, and that "to the extent of the question stated in s. 9(1), the jurisdiction' of the Settlement Officer and of the Tribunal are exclusive". It was pertinently added that this exclusion of the jurisdiction of the civil court would be subject to two limitations. First,. the civil courts have jurisdiction to examine into cases where the pro-vi•ions ·of the Act have not been complied with or the statutory tribu-nal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its· general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and either relevant factors. Applying the above principles, the Court clarified the limits ofi

Applying the above principles, the Court clarified the limits ofi the respective jurisdictions of the Settlement Officer/Tribunal and the. civil court, thus :

". . . the object of the Act is to abolish only "inam estates". This determination involves two distinct matters in view of the circumstances that every "inam village" is not' necessarily "an inam estate" viz., (I) whether particular property is or is not an '.'inam village" and (2) whether such village is "an inam estate" within the definition of s. 2(7). ·The first of these questions whether the grant is of an "inam village" is referred to in s. 9 (I) itself as some ex· trinsic fact which must pre-exist before the Settlement Officer can embark on the enquiry contemplated by that provision and the Abolition Act as it stood at the date relevant to this aopeal, makes no provision for this bein~ the subject of en-· quiry by the Settlement Officer ...

Where therefore persons appearing in opposition to the• rroceedings initiated before the Settlement Officer under s. 9 question the character of the property as not falling within the description of an "inam village". he has of necessity to decide the issue, for until he holds that this condition is satisfied he cannot enter on the further enquiry which is the one whieh bys. 9(1) of the Act he is directed to conduct. On the terms of s. 9(1 ), the property in question being an "inam village" is assumed as fact on the e~istence of which the competencv of the Settlement Officer to determine the matter within his jurisdiction rests and as there are no words in the statute empowering him to decide finally the former. he cannot confer jurisdiction on himself by wrong decisioff on this preliminary condition to his jurisdiction. Any deter-mination by him of this question, therefore. is (subiect to the result of an appeal to the Tribunal) binding on the parties anlv for the purposes of the proceedings under the Act, hut no further. The correctness of that finding may be ques-tioned in any subsequent legal proceedin11 in the ordinary courts of the land where the qu~stion might arise for de-ci~.ion."

Now let us approach the problem in hand in the light of the principles enunciated in Desika Charyulu's cdse (supra).

Mr. Natesan, learned Counsel for the appellants, contends that in the instant case, the decision, dated September 2, 1950, of the Settlement .Officer fell within the second category of cases pointed out in Desika Charyulu's case (supra) which could be challen~ed in the civil court, because, firstly, Kadakalla village was not an "inam village" as the g:rant was not of the whole village, and the Settlement Officer had grievously erred in assuming it to be so; secondly, as soon as the Settlement Officer reached the finding that the villa$e was not an "inam estate" within the then extant definition in s. 2(7) of the Abo-lition Act, he became functus officio and had no further jurisdiction under s. 9(1) to proceed with the enquiry and hold that it was an "estate" under s. 3(2) (d) of the Estates Land Act, 1908.

In reply, Mr. P. Rameshwara Rao, learned Counsel for the res-pondents, maintains that under s. 9 (I), the Settlement Officer had the jurisdiction to determine all the three facts, namely : (I) whether Kadakalla was an 'inam village'; (2) if so, whether it was pre-1936 'inam estate' falling under the definition in s. 2(7) of the Abolition Act, or (3) post-1936 'inam estate' under s. 3(2)(d), of the 1908 .Act. The decision of the Settlement Officer, according to the learned Counsel, as to fact No. ( 1) was conclusive and operated as res judic'ata under s. 64-A, of the. Abolition Act, between the parties, be-cause before the Settlement Officer, it was no·body's case that. K.ada-kalla was not an "inarn village". In these circumstances, !he decision of the Settlement Officer not being ia excess of his jurisdiction, could not be questioned in a-~ court. The argument, though seemingly attractive, does not stand close examination and we are unable to acc:ept it. On the- other hand, we find force in what has been con-tended from the appellants' side.

Under the Abolition Act, as it stood at the material date, the en-.quiry by the Settlement Officer could legitimately be confined to the ascertainment of only two issues of fact, viz.(!) Was Kadakalla an "in am village" ? ( 2) if so, was it an 'in am estate' as defined in s. 2(7) of the Abolition Act? Once issue (2) was determined, the enquiry would be complete and the limits of his exclusive jurisdiction <:ircumscribed by s. 9 (1) reached; and, if he went beyond those limits to investigate and determine further something which was winecessary or merely incidental or remotely related to issue \Z), then such inci-dental or unnecessary determination, could be questioned in the civil .court.

Again, any finding recorded by the Settlement Officer regarding the property in question being an 'inam village' or not, is not final or conclusive it being finding of jurisdictional fact, only, the pre-existence of which is sine qua 1Wn to the exercise of his exclusive jurisdiction by the Settlement Officer. Investigation as to the existence or otherwise of this preliminary fact is done by the Settlement Officer to ascertain whether or not he has jurisdiction to determine that the particular property is an 'inam estate'. If upon such investigation, he

finds that the properly is an 'inam village', the foundation for the exer· cise of his exclusive jurisdiction is laid, and he can then, and then only, embark upon the enquiry envisaged by the statute. If such in-vestigation reveals that the property is not an 'inam village', the con-dition precedent to the exercise of such jurisdiction by him, would be lacking. . .

The Legislature must have visualised that under the cloak of an erroneous finding as to the existence or non-existence of this pre· requisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him, or, refuse to exercise jurisdictiorf vesting in him. Perhaps, that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer/Tribunal and his er-roneous finding on that fact is liable to be question in civil court. The contention of Mr. Rao that before the Settlement Officer the fact of Kadakalla village being an "inam village" was not disputed, does not appear to be borne out by the record. perusal of the Settlement Officer's order dated September 2, 1950, would show that it was contended before him on behalf of the Inamdars "that there was no village at all at the time of grant" and "that there were more than one grant as Inam in the village".

Assuming for the sake of argument that the appellants had failed to ~ontest or adduce proof before the Settlement Officer that Kadakalla was not an 'inam village', then also, we fail to appreciate how, on principle, that would m&kc the case any different so as to preclude the appellants from reagitating that matter in the civil court. Once it is held that determination of this fact is not matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot 'be debarred on the basis of a~. doctrine of res-judicata from getting the matter fully and finally adjudicated by court of competent jurisdiction.

Jn view of the above discussion, it is clear t.hat under the law in force at the material time, . .a: suit for declaration that the decision of the Settlement Officer ffri.Qunal holding certain propertie& to be an 'estate' under s. 3(2)(d) of the 1908 Act was void, was maintainable on the ground that the suit property was not an 'inam village'.

There can be no dispute that Suit No. 47 of 1953 is of that ca(egory and falls well nigli. within the ratio of Gosukonda I'. enkata. Narasayya v. State of Madras,(') which was approved by this Court in Desika Charyulu's ca.ve (supra). The main contention of the appel-G lants in this suit was that the village Kadakalla was not in 'inam village' as the grant did not comprise the w-.ole village and consequently, it is not an 'estate' within the definition in s.3(2)(d) of the 1908 Act. The trial court accepted this contention and decreed the suit. The High Court confirmed that decision •. holding that .when the .i grant was made (in 1774), it was neither of the whole village nor of naircd villa~ within the meaning of Explanation 1 to s.3(2)(d) of the l.~08 Act. In Original Suit 101 of'!954, also, the relief of rent or damages

(t) A. I. R. 1953 Madras 60.

is con1\itional and dependent upon and linlced up (by an aareement between the parties) with the determination of the main question in· volved in the former suit.

We have, therefore, no hesitation i.n coming to the conclusion that the common question in both these suits regarding Kadakalla being an estate or not, on the ground that it was not an inam village, was within the competence of the civil court.

Further point to be consi<iered is : whether the jurisdiction of the civil courts to proceed with and determine the aforesaid suits was, in any way, affected by the enactment of Amending Acts 17 and 18 of 1957, For reasons that follow, the answer to this question, in our opinion, , must be in the negative. ·

It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows clear intention to vary such rights (Maxwell on Interpretation, 12th Edn. 220). That ii to say, in the absence of anything in the Act, to say that it is to have retros. pective operation, it cannot be so construed as to have the effect of altering the law applicable to claim in litigation at the time when the Act is passed.

Let us, therefore, see whether there is anything in the Amending Acts 17 and 18 of 195'1 which in clear language gives them retros· pective effect. plain reading of these Amending Acts would show that there is nothing of this kind in them, which, expressly or by necessary intendment, affects pending actions. The only major change introduced by Act 17 of 1957 was that it gave to the Government right to file an appeal to the Tribunal, if it felt aggrieved against the decision of Settlement Officer under sub-s. (3) of s.9 of the Abo-· lition Act, within one year from the date of the decision, or, if such decision was rendered before December 23, 1957 i.e. the commence-ment of Act 17 of 1957, within one year from such date. It fur-ther entitled the Government to get its appeal, if any, dismissed, as incompetent, by the Tribunal restored within one year of the com-mencement of the Amending Act. Likewise. the only effect of the Amending Act 18 of 1957 was that it enlarged the definition of 'inam estate' for the purpose of Abolition Act by taking in post-1936 Inams.

There is no non-obstante clause in these Amending Acts of 1957 with .reference to pending or closed civil actions. Nor is there any-thing in the scheme; setting or· provisions of these A,Jllending Acts which fundamentally alters the conditions oil which such actions were founded.. No back date or dates of their commencement have been specified in the body of these statutes as was done in Madras Estates Land Amendment Act II of 1945 which was expressly enforced.with effect from the date of the commencement of Act 18 of 1936. These Amending Acts were published in· the Government Gazette on Decem-ber 23, 1957, and will therefore 'be deemed to have come into force

,,/ • ,

from that date only. The provisions of these Amending Statutes ar~

not merely procedural but affect substantive rights, and impose new obligations and disabilities. In them, the Legislature has not spo1ten in clear language that they would unsettle, settled claims or take away or abridge rights already accrued, or cause abatement of pend· ing actions. These Amending Acts, therefore, can be construed as having prospective operation only. They cannot be in,terp1eted as taking away the rights of the litigants in Suits O.S. 47 of 1953.,.(!nd 0.S. 101 of 1954 (which were at the commencement of these A'm!!!d· ments pending at the appellate or original stage) to have their res· pective claims determined in, accordance with the law in force at the time of the institution of the actions.

Before we come to the Amending Act 20 of 1960, it is necessary to' examine whether the decrees in O.S. 47 of 1953 and O.S. 101 of 1954 had attained finality. And, if so, when and to what extent?

So far as the decree of the High Court (in A.S. 668 of 1954 arising out of O.S. 47 of 1953) is concerned, there is no dispute that it had become final and conclusive between the ·parties to that action, namely, the State Government and the present appellants on February 12, 1954. Learned Counsel are, however, not agreed 'as to whether the decree, dated March 28, 1958, passed by the civil court in Suit No. 101 of 1954 had also assumed such charac· ter.

Mr. Natesan, vehemently contended that this decree in so far as it, pursuant to the agreement between the parties, incorporated in it, the final determination of the High Court in A.S. 668 of 1954-that Kadakalla was not an estate-was consent decree, and as such, was final and non-appealable in view of s. 96(3) of the Code of Civil Pro-cedure .

On .the rtspondents' side Mr. Rao argued that no part of this decree was final and conclusive between the parties on the ground of estoppel or otherwise, because-(a) the appellants-had in grounds 1 and 2 Cjf the Memo of Appeal presented in the High Court, challenged the decree in its entirety; (b) the joint memo filed by the Advocates, concerned legal issues, including that of jurisdiction. and as sueh the agreement was not lawful that would bind the parties; (c) the respon-dents wer~ not party to the proceedings in A. S. 668 of 1954 and ( d) the arrangement arrived at ,Py the Advocates, being dependent on the happening of future event, did not amount to lawful adjustment of the claim, and the. decree based on it, was inchoate.

None of the points urged by .Mr. Rao appears to bold water.

The allegations in grounds J. and 2 of the Memo of Appeal (which haw been referred to in foregoing parr of this .iudgment) are too vague and general to amOU!!t to an averment. They appear to have been introduced just as !natter of form and habit by the draftsman. From the Memo of Appeal, read as whole, it is cl.ear that, in subs-tance and truili, \he challenge was directed only agamst that part of 3-L748SCl/74

the decree which fixed the quantum of rent and damages. In fact, before the High Court it was vigorously contended on behalf of the appellants that that part of the decree which, in effect, declared that the village is not an 'estate' under s. 3(2J(d), having been imported with the consent of the parties, was not appealable under s. 96 ( 3), Code of Civil Procedure, and, in reality, had not been appealed against. In support of this contention, reliance was placed on the Division Bench decision in Srinivasa v. Tathachariar('). The High Court did not discuss or distinguish this decision. Nor did it say in so many words that the whole of the decree including the part based on compromise, was under challenge in the appeal. lt rejected the contention with the remark that it had already "observed that the appeal is but continua-tion of the suit and there could be no estoppel ' against statute". Perhaps, it was assumed that in the Memo of Appeal, every bit of the decree was .being challenged by the appellants. We think, with all res-pect, that such an assumption was contrary to the well·estabiished principle that in construing pleading or like petition, in this country, the court should not look merely to its form, or pick out from it isolated words or sentences; it must read the petition as whole, gather the real intention of the party and reach at the substance of the matter. Thus construed, the Memo of Appeal in .this case could not be said to contail\ challenge to that part of the d"4'ree which was in terms :of the compromise agreement between the parties.Order 23, Rule 3, Code of Civil Procedure, not only permits partial compromise and adjustment of suit by lawful agreement, but further gives mandate to the court to record it and pass decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful-and, as we shall pre-sently discuss, it was so-the decree to the extent it was con.sent decree, was not appealab!e; because of the express bar in s. 96(3) of the Code.

Next point is, whether this agreement was lawful? We have already discussed that the Amending Acts of 1957 did not affect pend-ing actions in which dedaration is sought that particular property is not an estate, on the ground that 1it is not an 'inam village'. This issue which was intertwined with that· of jurisdiction, was very largely question of fact. It follows therefrom that in any such suit, the parties in · ' ·· to avoid unnecessary expense and botheration, could legitimate!, ~e an agreement to ab'.de by determination on the samo point m issue in another pending action in an advanced stage. There was nothing unlawful and improper in such arr arrangement particularly when the interests cf the respondents were sufficiently safe-guarded by the State which was hotly controverting the decree of the trial court regarding Kadakalla being an estate. By no stretch of reasoning it could be said that this .agreement v.·as collusive or -was. an attempt to contract out of the s'atute.

There can b' no doubt that as soon as the Court accepted the com-promise agreement between the parties, and, acting on it, passed

(t) A. I. R 1918 Mad. 54$.

. , • 1

decree in terms thereof, the compromise, to the extenf of. the matter covered by it, was complete. Nothing further remained to be done by the parti~s in pursuance of that agreement. The decree had beccime absolute and immediately executable on February 12, 1959 when th& High Court in A.S. 668 of 1954 finally decided that Kadak~lla was not an estate.

Be that as it may, the bar to an appeal against consent ,decree, in sub-s. (3) of s. 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or foregi:i their right of appeal by any lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the appeal ( A.S. 668) and induced the co.urt to pass decree in terms of that agreement, the principle of estoppel underlying 1. 96(3) .became operative and the decrt!C to the extent it was in terms of that agree-ment, became final and binding befween the parties. And it was as · effective in creating an estoppel between the parties as judgmen,t on contest. Thus, the determination i~ A. S. 668-that Kadal!;alla was not an 'estate'-became as much binding on the respondents, as on the parties in that appeal.

In the. view we talce, we can derive support from the ratio of this Court's decision in R11ja Sri Sailendra Narayan Bhanja. Deo ,v. State of Orissa([1]). In that case, there was compromise decree between the predecessors-in-title of the appellant therein on the one hand, and. the Secretary of State on the other, that Kanika Raj was an . :estate' . as· .E defined by Orissa Estates Abolition Act of 195 !. ·This Court held that the appellant was estopped by the compromise decree from deny-ing that the Raj was noquch an 'estate'.In the light of the above discussion, we would hold that that part of the decree in Suit No. 101 of 1954 which was irt terms of the com· promise agr~ement had become final between the par;lies, and' the appeal from that decree could riot be said to be continuation of that part of the· claim which had been: settled by agreemeni. The com· bined effect of the two integrated decrees in Suit No, 47 and Suit No. 101, in. so far as they, d.eclarc;d that. Kadakalla, not being 'Ill 'inam villlage', was not an estate under s. 3(2)(1<1) of the 1908 Act, was to completely .vacate and render non-est the decision dated Sep· · tember 2, 1950 of the Settlement Officer.

Against the above background, we have to consider whether the .Amending Act .20 of 1960 operates retrospectively to nullifv final decrees of civil couits which had b'fore its commencement, declared such decisions of Settlement Officer totally void and non-existent ? Does the Act expressly or by necessary intendment bring into life again all su~h dead· deC:•ions of the Settlement Officer ?

In approaching these questions, two fundamental principles of inter-pre•ation have to be kept in view. The first is, that if the Legislature,

(I) [1956] S.C.R. 72.

acting within its legislative competence, wants to neutralise or reopen court's decision, "it is not sufficient"-to use the words qf Hiday-tullah C.J. in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Muni-cipality(')-"to declare merely that the decision of the Court shall not bind, for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. court's decision must always bind unless the conditions on which it is based are· so fundamentally altered that the decision could not have been given in the altered circumstances." Thus, the first test to be applied is, whether the Amending Act 20 of 1960 has oo radically altered the conditions on which the said decrees pr_gceed, that they would not have been passed in the altered circumstances ? The point is that the law which was the basis of the decision must be altered and then, the foundation failing, the binding value of the decision fails when the. non obstante clause is superadded. As shall be presently s~en, by this test, the answer to this question must be in the negative.

The second principle-to recall the words of Bowen L.J. in Reid v. Reid(')-is, that in construing statute or "a section in statute which is to certain extent retrospective, we ought nevertheless to bear in mind the maxim (that is, except in special cases, the new law1ought to be construed so as to interfere as little as possible with 'Vestecf'rigbts as applicable whenever we reach the line at which the words of the section cease to be plain. That is necessary and logical corollary of the general proposition that you ought not to give larger retrospective power to section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.[0 ]With the above principle in mind, let us now examine the provi-sions of the Amending Act 20 of 1960. In this Act, also no back date for i'ts commencement has been me11tioned. It will, · therefore, be deemed to have commenced 0n .June 23, 1960, which is the dale on which it was published in the Govt. Gazette. It does not say (except-ing in s. !'2 inserted by it which obviously does not apply to the facts of this case) that the amendment would have effect and would be deemed always to have had effect from the inception of the parent Act, nor does it use any equivalent expressions or similar words which are usually found in Amending Acts intended to have retrospective opera-tion without any limit. Section 9-A inserted by this Amending Act in the parent Act, does not begin with any non-obstante cause, whatever having reference to decrees or orders of civil courts. In terms, it con-cerns itself only with certain category of decisions given before the commencement of Act 18 of 1957 by the Settlement Officer/Tribnna!, under s. 9 of the Abolition Act. Such decisions are those which were based on the finding that particular Inam village had become estate by virtue of the Miidras Estates Land (Third Amendment) Act, 1936.

The Order, dated September 2, 1950, of the Settlement Officer in the instant case, was decision of this category, inasmuch as he held that Kadakalla was not an 'inam estate' be~ause it was post-1936

(I) ll970] I S.C.R. 388. (2) (1886) 31, Ch. 402 at 408,

inam, and as such, was not covered by the definition in s. 2(7) of the Abolition Act. But, before the coll).lllencement of the Amending Act, 1960, this decision as result of the High Court's decree, stood finally vacated. It is not at all c\ear from the language of this Amending Act, that the intention was to revive even such legally non-existent decisions of the Settlement Officer. On .tlle contrary, definite indications ire · available that the section was not intended to have unlimited retrospec-tive operation. The firfat oi such indications is available from the mar-ginal heading of s. 9-A, itself,. which is to the effect : "Inquiry under section 9 not necess,Al'y in certain cas.es". The heading discloses the purpose as well as the ~xtent of the new provision. It envisages only such cases in which the decision of the · Settlement . Officer wa5 not successfully challenged in the civil court on the ground that the parti-c cular property was not an inam village; for, it would be pointless, only in such cases, to.hold further inquiry into.the matter.

The second hint of legislative intent is available in s. 64-A (2) which has not been touched by the Amending Act. Section 64-A(2) provides. that the decision of the civif court on any matter within its jurisdiction shall be binding on the parties thereto arid persons claim-D ing under them in any proceeding under the Ab.olition Act .before the Tribunal or the Special Tribunal. If. the intention was to exclude the jurisdiction of the civil court altogether, s.64-A(2) would either have been deleted or drastically [\mended so as to alter the. basic conditions with effect from the very inception of the parent Act, that in the altered conditions those decisions CQ\114 not have been rendered by the civil courts. For instance, it could sa.y that the decision ·of the Settlement Officer on the question whether particular property is an 'inam village' or not, would be conclusive and final and would always be deemed to have been so." ·In view of what has been said above,. we are of the opinion that s. 9·A takes in .its retrospective sweep only those decisions of the Settlement 'Officer or the Tribunal which at the commencement·of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non-est by decree of competent court. The decision dated September 2, 1950 of the Settlement Officer in the instant case, was not such decision. It had ceased to exist as ·a result of the int~-linked decree in O.S. 47 of 1953 and 0.S. 101 of 1954, · passed bebe the enactment of this Amending Act. The Amending Act of 1960\. therefore, does not in any way, affect the finality or the binding effect of those decrees.

Quite number of ·authorities were cited by the learned Counsel on both sides, but it is not necessary to notice all of them because in most of them the facts were materially different. Only ·one of those cases in which the interpretation of ss. 9-A and 64-A was involved deserves to be noticed. It is reported in Yeliseth Satyanarayana v. Aditha agannat<harab and ors.(')

The writ petitioners in that case had. challenged the order of. the Estates Abolitioh Tribunal which had held ( 1) that the previous order of the Civil Court holding the suit lands to be an estate by virtue of the Amending Act XVlll of 1936 to the Madras Estates Land Act, 1908, was noLres iudicata under s. 64·A of the Abolition Act and (2) that the land-holder had right of appeal under s. 9-A of. the said Act, and that the inam was not of the whole village and, conse-quently, was not an 'estate'.

The first ·question for consideration by the High Court was, whet-her the appeal filed by the land-holder before the Estates Abolition Tribunal was maintainable notwithstanding the fact that such an appeal was not entertained, earlier by the Tribunal on the ground of its being incompetent. On the construction of s. 9-A(b), this ques-tion was answered in the affirmative.

The second question Q.efore the High Court was, whether the previous judgments of the Civil Court were res iudicata under s. 64-A. The Bench analysed and explained the circumstances in which. the first or.the second sub-s of s. 64-A operates. It will be usefol to extracf those observations here :

"The bar under s. 64-A is applicable in two sets of cir-cumstances; one, where the decision was of Tribunal or Special Tribunal or of Judge of the High Court hearing case under seflion 51; (2) the other, where it is decision of. Civil Court on any matter falling within its jurisdiction. The decisions mentioned_ in the first category are binding on the Civil Courts and the decisions mentioned in the second category are binding on the Tribunal or Special Tribunal or Judge of the High Court when he hears case under s. 51 (2). In so far as the facts of this case are concerned, it is sub-section (2) of section 64-A that. is applicable."

On the second question, the learned Judges held that the previous decision' of the Civil Court could not operate as res iudicata because the issue as to wheth<;r the suit property was an estate under the Amending Act of 1957, was not under contest. Both the parties us matter of concession, had conceded that fact and· the Govern-ment was not party to the proceeding. In these peculiar circum-stances, it was held that the concession or assumption made in the previous proceedings, was not 'decision' within the meaning of s. 64-A(Z). In the case before us, as already observed, the State had contested this issue regarding Kadakalla being an estate or not, right upto the High Court. It would, therefore, operate as res iudicata between the State and the land-owners. The same binding effect is produced by estoppel raised by the consent decree in the suit out of which the present appeal has arisen. Thus, this ruling does not advnncc the case of the respondents.

For all the foregoing reasons, we a110w this appeal, reverse the judgment of the High Court and send the case back to it for decision

K. c. DORA v. GUNTREDDI (Krishna Iyer, /.)

on the remaining issues in accordance with law. We make no orders as to the costs of this Court.

KRISHNA IYER, J.-The judgment just delivered has my concurrence. But certain juristic thought expressed therein and consecrated in an authoritative passage which has fallen from Bowen, L.J., in Reid v. Reid(') persuades me to break my silence not so. much in dissent but ll in explanatory divagation. The proposition tnere expressed and here followed relates to the presumption against vested rights being affect-ed by subsequent legislation. Certamly this legal creed of Anglo-lndian vintage has the support of learned pronouncements,_ English and Indian. But when we apply it in all its sternness and sweep, we err. Precedents should not be ·petrified nor judicial dicta divorced from the socio-economic mores of the age. Judges are not prophets and only interpret laws in the light of the contemporary ethos. To regard them otherwise is unscientific. My thesis is that while apply-ing the policy of statutory construction we should not forget the con· ditions and concepts which moved the judges whose rulings are cited, nor be obsessed by respect at the expense of reason. Justice Gardozo(2) has in felicitous words made the same point :

"There should be greater readiness to abandon an un-tenable position .... when in its origin it was the product of institutions or conditions which have gained new signifi-. cance or development with . the progress of.the years. In such ' circumstances, the words of Wheeler, J., in Dwy v. Connecti-cut Co., 89 Conn. 74, 99, express the tone and temper in which problems should be met : "That court best serves the Jaw which recognizes that the rules of law which grew up in remote generation n1ay, in the fulness ·of experience, be · found to serve another generation badly, and which discards• the old rule when it finds that another rule of law represents what should be according to the established arid settled judgment of society, ~nd no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary, Change of this character should not be left to the legisla-ture." If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they_ ought not to tie , in helpless submission, the _hands of their successors."

The Indian Constitution, adopting the fighting faith of equal _pro-tection of. the _laws to al! citizens, necessarily contemplates new jurisprude_!lce where vested rights may be, and often-times are, exten-H sively interfered with for achieving the founding fathers' so.cial goals.

(I) [18861 31 Ch.D.402;408.

{2) Cardozo The Nature of Judicial Process; PP. l~l-52.

Legislative exercises directed towards distributive jusmce, as in the pre-A sent case, cannot be considered in the light of dated value system, though sanctified by bygone decisions of Courts.

However, in the present case, let me hasten to repeat, the Act in question is clear about its intent and its application gives little difficulty. I have said these- words only to enter mild caveat, on the lines indicated, so as to obviate future misapprehensions about the rule of interpretation-not to add new element of judicial sub-jectvism. Speaking generally, courts have to be anchored to_ well-known canons of statutory construction and if they ,are out of time with the law-makers' meaning and purpose the legitimate means of setting things right is to enact new Interpretation Act.

Appeal allowed.