The High Court's power extends to revising the order of the Collector made in the exercise of his own revisional powers, and the principle of approbate and reprobate applies.

Venkatasubba Rao, J.

1. The learned Sub-Collector, holding that the Court had no jurisdiction, returned the plaint for presentation to the proper Court. On a revision petition having been filed" before the Collector, he reversed the order of the first Court and remanded the suit for disposal. The question is, whether the High Courts power extends to revising the order of the Collector, made by him in the exercise of his own revisional powers. This question must be answered in the affirmative on the authority of Paramasvoamy Aiyangar v. Alamelu Natchiar Ammal I.L.R. (1918)Mad. 76 : 35 M.L.J. 632 and Ramasami Goundan v. Kali Goundan I.L.R. (1918) Mad. 310 : 36 M.L.J. 571 Mr Venkatesa Aiyangar relies upon the decision of the majority of the Judges in Raghunadha Patro v. Govinda Patro (1928)55MLJ798 but that case dealt with the orders of the Board of Revenue and not of the Collector and having regard to the dissent expressed from it by several Judges in the later Full Bench case Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 as also by the referring Judges there, I am not prepared to extend its application beyond what has been actually decided by it. The preliminary objection therefore fails.

2. Now dealing with the merits, the principle that a party cannot both approbate and reprobate, clearly applies. The plaintiff (the Rajah of Vizianagaram) alleged in the previous suit (O.S. No. 223 of 1923 on the file of the District Munsifs Court at Vizianagaram) that the village in question was not an estate and obtained a decision in his favour on that point. The defendants there denied his allegation and expressly pleaded that the village was an estate and a specific issue was raised upon the point. The plea was, "The land sued for being an "Estate" within the meaning of Madras Act I of 1908, the Court has no jurisdiction to try this suit", and the issue framed ran thus:

Whether this Court has no jurisdiction to try the suit"? After an elaborate discussion of the question, the District Munsif found, agreeing with the plaintiff, that the land was not an estate, and that the Court had jurisdiction. The defendants further pleaded that independent of the Estates Land Act, they were entitled to occupancy rights. Even this contention was negatived and a decree was passed, ejecting the defendants from the holding. An appeal was taken to the District Court and the learned Judge upheld the finding of the District Munsif that the village was not an estate; he observed, "The validity of the lower Courts first finding, that Vantithadi Agraharam is not an estate, cannot be shaken.

3. But on the second question differing from the District Munsif he found that the defendants acquired occupancy rights and on that finding, dismissed the plaintiffs action. I am quite clear that apart from any question of res judicata the plaintiff cannot now turn round and say that the land is an estate and on the strength of that assertion, invoke the special jurisdiction of the Revenue Courts. To use the words in Smith v. Baker Maharajah of Benares AIR1930All15 .

4. The Civil Revision Petition is allowed; the lower Courts order is set aside and that of the Sub-Collector is restored with costs, throughout. The plaint will be returned for presentation to the proper Court.