Krishnaswami Nayudu, J.
1. This appeal is against the judgment of the Subordinate Judge of Bapatla dismissing the plaintiff's suit in appeal on the ground that Civil Courts have no jurisdiction to entertain the claim. The plaintiff, who is the appellant, is the widow of one Venkatappa, who was the son of Addanki Lingadu 1. Addanki Lingadu 1 married Venkata Ramamma. Venkatappa had a brother Ragadu, who died leaving a widow Ragi. She also died. Venkatappa and the plaintiff had a son Lingadu 11. Venkatappa died about 25 years prior to suit and Lingadu 11 also died three months after his father's death. The plaintiff claims to be the heir entitled to possession of the suit properties, which consist of certain lands relating to washerman service 'inam' in the Addanki village, Guntur district.
The plaintiff's case in the plaint is that the land was acquired by the plaintiff's husband as a service tenure 'inam' with hereditary rights and he was enjoying the said property by rendering the said service and he died 20 years prior to the date of the suit, that thereafter his only son Lingadu 11, who was aged about 4 years also died, that the suit property passed to the plaintiff by heirship and she has been enjoying the property since then free from disputes by rendering the said service and that the defendant who had no manner of interest to the property about 5 months prior to the suit unlawfully entered into the said field and stealthily carried away the plaintiff's crop and also trespassed on a portion of the property and refused to deliver possession. The suit is for recovery of possession of the land, which is of the extent of 1 acre and 50 cents.
2. The main defence to the suit is that the property being washerman service 'inam' land, a suit for recovery of possession of that land could only be heard by the Revenue Court under the Madras Hereditary Village Offices Act (3 of 1895) and a civil court has no jurisdiction. On the merits, the defendant contended that he had become entitled to possession of the property under a family arrangement. His case is that his father and Addanki Lingadu 1 were sons of sisters and besides he is the sister's son of Venkata Ramamma, wife of Addanki Lingadu 1, that while he was an infant his mother died and as his father was blind Lingadu affiliated the defendant and his father into his family and vested them with rights in his properties, that after the death of Venkatappa, husband of the plaintiff and Ragadu, sons of Lingadu 1, the defendant had been rendering washerman service, and that Venkata Ramamma, widow of Lingadu 1, and also the mother's sister of the defendant brought one Bapadu from another village Bommanampadu to assist this defendant In rendering service and, in pursuance of a family arrangement then effected the defendant and the said Bapadu had been enjoying the property of Lingadu with equal rights and the arrangement was approved of and acquiesced in by Venkata Ramamma as well as by the plaintiff and Ragi, the widow of Ragadu.
3. A number of issues were raised In that suit and apart from the issue relating to the jurisdiction of the civil Courts, there were issues as to whether the family arrangement pleaded by the defendant was true and whether the trespass alleged by the plaintiff was true. The learned District Munsif who heard the suit granted & decree holding in favour of the plaintiff on all the issues finding that there was absolutely no evidence to prove the family arrangement, that the defendant had trespassed into the land held by the plaintiff and removed the crop raised by her. In appeal the learned Subordinate Judge of Bapatla, without considering the other issues on which findings were given by the first Court, dealt with the issue relating to jurisdiction and held that the Suit came within the scope of Sections 13 and 21 of Act 3 of 1895, which barred the jurisdiction of the civil Court, to entertain such a suit.
4. The only question therefore for determination in this appeal is whether the conclusion of the learned Subordinate Judge that the civil Court has no jurisdiction is correct. Under Section 13(1) of Act 3 of 1895,
"any person may sue before the Collector for any of the village offices specified in Section 3 (which includes the office of the village washerman) or for the recovery of the emoluments of any such office, on the ground that he is entitled under Sub-sections (2) or (3) of Section 10, Madras Proprietary Estates Village Service Act, 1894, or under Sub-sections (2) or (3) of Section 10 or Sub-section (2) or (3) of Section 11 or Section 12 of this Act, as the case may be, to hold such office and enjoy such emoluments."
Sub-sections (2) and (3) of Section 10 of the Act relate to the devolution of the service 'inams' when a vacancy arises. Sub-section (2) recites that the succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaries in southern India. Subsection (3) gives the power to the Collector where the next heir is not qualified under Sub-section (1) of Section 10, to appoint the person next in order of succession who is so qualified.
5. The suits contemplated under Section 13 as being entertainable by the Collector are suits relating to the succession to the office to hold such office and to enjoy such emoluments. There is no doubt that 'emoluments' in Section 13 include also lands. Section 21, which restricts the jurisdiction of civil Courts, is as follows:
"We civil Court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in Section 3 or any question as to the rate or amount of the emoluments of any such office or, except as provided in proviso (ii) to Sub-sections (1) of Section 13, any claim to recover the emoluments of any such office."
The matters therefore that are exempted from the cognizance of the civil Courts under Section 21 are (1) claims to succeed to any of the offices specified in Section 3, (2) claims to any question as to the rate or amount of the emoluments of any Such office, and (3) claims to recover the emoluments of any such office excepting the emoluments that are referred to in proviso (ii) to Sub-sections (1) of Section 13. Proviso (ii) of Sub-sections (1) exempts certain suits to recover the land itself from being filed before the Collector. Proviso (ii) is as follows :
"When one of the facts in issue in a suit is whether the emoluments of the office consist of land or of an assignment of revenue payable in respect of land, the Collector shall decide the claim on the assumption that only the said assignment constitutes the emoluments; hut such decision shall not bar the rights of the claimant to institute a suit in a civil Court for recovery of the land itself."
6. The present suit is not a suit coming under any of the three categories mentioned in Section 21. It cannot be said to be a suit for establishing the plaintiff's rights to the office. There is no question as to the rate or amount of the emoluments that is in dispute. Nor is the plaintiff Seeking to recover the emoluments of the office, though the lands happen to be emoluments of the office itself.
7. Reliance is placed on the Full Bench decision of this Court in -- 'Kesiram Narasimhulu v. Narasimhulu Patnaidu', 30 Mad 126 (FB) (A) which is a judgment of Arnold White C. J., Benson and Miller JJ. where it is held that the jurisdiction of civil Courts is excluded by Section 21, Madras Hereditary Village Offices Act In cases in which the plaintiff sues for lands as emoluments of his office and the defendant resists the claim on the ground that the land is not the emoluments of the office. There the plaintiff, who was a 'karnam', on his land being attached in execution sued to recover the same on the ground that it was service 'inam', the defence being that it was not service 'inam', but the plaintiff's private property. In second appeal, there was 3 difference of opinion between Subrahmania Aiyar and Moore JJ., Subrahmania Aiyar J. holding in favour of vesting jurisdiction in civil Courts, Moore J. holding to the contrary. The Bench agreed with Moore J. and held that the suit which was the subject-matter of appeal, was one in which the civil Court had no jurisdiction.
The reason for the decision is found in the judgment of Miller J. where the learned Judge after referring to the relevant provisions of the Act, namely, Sections 13 and 21 observes that the plaintiff could succeed only by showing that he is the 'karnam' of the village entitled as such to enjoy the emoluments and that the land is the emolument of his office, those being the grounds of suit which give him his right of action before the Collector under Section 13(1). The suit was, therefore, held to be a suit for recovery of the emoluments of the office, where it would be necessary for the plaintiff to establish that the lands which were the subject matter of the suit were the emoluments, that he was the office holder and that he was the person doing service in respect of the land-Where, therefore, it becomes necessary to decide whether the land which is the subject-matter of the suit is emoluments of the office, which would again depend upon whether it was granted as emoluments to the office and whether the plaintiff is the office holder it is reasonable to hold as was held in 30 Mad 126 (FB) (A) that it is a suit cognizable by the revenue Court and not by a civil Court.
8. This Full Bench decision was referred to in two other decisions reported in -- 'M. Seetham Naidu v. D. Rama Naidu', 33 Mad 203 (B) and -- 'Gavara Ramanna v. Adabala Rattayya', 33 Mad 235 (C). It may be mentioned here that Benson J. one of the Judges in 33 Mad 208 (B) was a party to the Full Bench decision in 30 Mad 126 (FB) (A). In 33 Mad 203 (B), Benson C. J. and Krishnaswami Aiyar J. referred to the Full Bench decision and held that in the case they were considering, the jurisdiction of the civil Courts was not barred. That was a suit where a village officer's 'inam' land was granted on lease by the village officer to the defendant and after the expiry of the lease period, he instituted a suit for recovery of possession. A defence as to jurisdiction was raised and it was held that such a suit was cognizable by the civil Court. The learned Judges observed as follows :
"The Subordinate Judge relies on the decision in 30 Mad 126 (FB) (A). Far from supporting his view the observations in that case of Miller J. at page 131 are in favour of the plaintiff and the other learned Judges do not dissent from his remarks. Indeed it may be said that the 'ratio decidendi' of that case supports the appellant's argument. Both the learned Chief Justice and Miller J. say that Sections 13 and 21 of Act 3 of 1895 should he read together. Section 13 confers jurisdiction on the revenue Court and defines the class of Suits of which a revenue Court may take cognizance. Section 21 specifies the class of suits of which the civil Courts shall not take cognizance. It is reasonable to hold notwithstanding the apparent generality of the language of Section 21 that the jurisdiction of the civil Court is taken away in those cases in which it is conferred on the revenue Court by Section 13."
9. In the other case, 33 Mad 235 (C), Arnold White C. J. and Krishnaswami Aiyar J. referred to the Full Bench decision in 30 Mad 126 (FB) (A) and distinguished it on the particular facts of the case which the learned Judges were considering. It was held in that decision that
"a suit in the civil Courts for land, not based on the ground that such land constituted part of the emoluments of any of the offices described in Section 13 of Madras Act 3 of 1895 is not barred by Section 21 of the Act."
The learned Judges, while holding that Section 21 would not apply to that case, observe at page 237 as follows:
"It does not raise a question as to the rate or amount of the emoluments of any such office. If it did, every claim to recover lands would be outside the jurisdiction of the civil Courts, which is opposed to the words 'but such decision shall not bar the right of the claimant to institute a suit in a civil Court for recovery of the land itself, the last sentence in proviso (ii) to Section 13(1) of the Act. A claim to recover lands, in our judgment, does not raise a question as to the rate or amount of the emoluments of the office."
The present suit is a simple suit to claim possession of the land which the plaintiff was entitled and has been in possession as heir, the property being village service 'inam' land vested in the family. It cannot be said to be a suit for recovery of emoluments. If the decision of the suit requires an examination of the right of the plaintiff to the office and also the question as to whether the land forms part of the office, which generally arises when there is a contest between the parties as to their respective claims to the office or dispute regarding the nature of the property as to whether it is service 'inam' or private land when it would be reasonable to hold that it would come within the scope of the suits contemplated under Section 13(1) of Act 3 of 1895.
I am unable to see how a suit which is instituted by a person who happens to be an office holder of property to recover property which is the emolument of the office from a person who does not claim any right to the office and who does not even contest that it is his private property or that it is not service inam', could be said to be a suit of which the civil Courts are barred from entertaining. EXcepting an allegation in the plaint that the land is washerman service 'inam' and that the plaintiff is doing service, her claim is not based on any of these averments but on the fact that she is the rightful heir of the property and the other fact which she had to establish is that the defendant is a trespasser.
10. In -- 'Veeramma v. Veerappa', AIR 1937 Mad 282 (D) where the office which was service 'inam' was sought to be recovered from a trespasser, Pandrang Row J. held that where the claim is not based on the right to the office or to anything on the ground that it forms the emoluments of an office but is merely for the possession of property on which there was a trespass, the civil Court's jurisdiction is not ousted.
11. I do not think there is any doubt as to the classes of suits which are contemplated under Section 13(1) in respect of which alone the jurisdiction of the civil Court is ousted by virtue of Section 21 of the Act, though the latter part of Section 21 may lead to the view that all suits for lands except those that are covered by proviso (ii) to Sub-sections (1) of Section 13 may be considered to be barred from the jurisdiction of the civil Court. As observed by the learned Judges in 30 Mad 126 (FB) (A) both Sections 13 and 21 must be read together and the classes of suits that are not cognizable by the civil Courts are only those which are mentioned in Section 13(1) and which are to be filed in the revenue Court.
12. The learned Subordinate Judge has erred in coming to the conclusion that the civil Court has no jurisdiction. The civil miscellaneous appeal is allowed and the appeal is remanded to the lower Court for being disposed of according to law. Costs of the civil miscellaneous appeal will abide the result of the appeal.