DEPUTY COMMISSIONER OF KODAGU Vs. E EMMANUEL RAMAPURANI

JUDGEMENT

(1.) the appellants challenge by this appeal the judgment and decree of the first appellate court of the district judge of kodagu at madikeri setting aside the judgment and decree of the trial court of the civil judge at madikeri in O.S. No. 4/1978. The properties involved are survey numbers 129/3,154/5,170,154/8,173 and 174 of cheleavara village, napoklu nad in kodagu district. The total extent of these lands comes to 468 acres 72 cents, the largest among them being sy. No. 154/5 measuring 431.42 acres. Admittedly these were jamma malai lands, the original holder was one pattacharavanda cariappa. When exactly these lands for cardamom cultivation were granted to cariappa is not available. As the said cariappa had become a defaulter in the year 1927 for payment of land revenue of 168 rupees 11 annas the lands were sold by the government in that year in auction and palecanda medappa purchased them for Rs. 170/-. The said medappa was the holder thereof till the same were sold to the respondent's father in the year 1940. Emmanuel thomas ramapuram was the father of the plaintiff-respondent. The registered sale deed is dated 15-9-1940. Even after this sale transaction of 1940 things were quiet till 1974. On 28-2-1974 the respondent (to be referred to as the plaintiff hereafter) applied to the deputy commissioner of coorg for permission to exploit the tree growth without payment of any scignorage. The permission having been rejected and the plaintiff failing in the appeal before the revenue appellate tribunal filed the original suit with a prayer for declaration that the revenue auction sale conferred on the auction purchaser absolute rights over the schedule property and as successor in title the plaintiff is the absolute owner thereof with unlimited rights to the tree growth standing thereon and for a mandatory injunction directing the defendants to issue requisite passes for cutting, felling, dressing and removal of timber from the schedule property without payment of seignorage charges to the government. The main contention of the plaintiff is that the tenure jamma was converted into one of sagu by virtue of the auction sale held by the government and hence the purchaser acquired absolute rights of ownership over the suit lands. The chief secretary, government of Karnataka was the 2nd defendant, the present appellant-2 being defendant-1 in the suit. They contend that there was no change of tenure between 1931 and 1941 and these lands were shown in paisari khata. As per the order of the chief commissioner in m.c. No. 69, dated 22-9-1941 the jammabandi of the suit lands was transferred to the name of the plaintiffs father and at that time the tenure was changed to jamma malai from paisari. The holder of jamma malai has only the right of cultivation of cardamom from the reserved forest land of the government and the malaigar has no proprietary rights over the land or timber growth. In brief their contention is that no absolute proprietary rights were acquired by medappa for these lands and consequently the plaintiffs father could not claim any higher right than what medappa had.

(2.) the trial court upheld the contention of the appellants-defendants and dismissed the suit. The first appellate court however allowed the appeal and decreed the suit holding inter alia that the auction sale has resulted in the change of tenure from jamma to sagu. In this appeal the following substantial questions of law have been formulated for determination:

(3.) the learned Advocate general invited my attention to the peculiar tenure sprevailing in kodagu district and the rights of the holders under such tenures. We are only concerned with jamma tenure over jamma malais. Though both sides have referred to coorg land revenue regulation (1 of 1899) (regulation hereafter for brief) that does not define these tenures. Therefore necessarily reference has been made to the revenue settlement of coorg 1910. Para 97 relating to jamma malais reads thus: