TULABANDU ADEMMA Vs. SREEMATH SATYADHYANA THIRTHA SWAMIVARU REPRESENTED BY THE GENERAL POWER OF ATTORNEY AGENT, MARKAPURAM SRINIVASACHARLU

JUDGEMENT

(1.) This appeal arises out of a suit filed by the appellant to recover possession of certain lands situate in the Guntur District On the 16 May of 1916 the first respondent, who is the head of a math, granted to one Nagamma a lease for ten years of the lands described in schedule A of the plaint. These lands were held on behalf of the deity of the math under an inam said to have been granted in 1763. For many years they had been cultivated by Nagamma's husband, who was dead when the lease to her was granted. During the pendency of the lease Nagamma adopted Bapanayya, the husband of the appellant. Nagamma died before the lease expired and on her death Bapanayya took possession of the lands. He had no issue and on his death in 1924 the appellant, who was then a minor, entered into possession as his heir. She remained in possession after the expiration of the lease and was regarded by the first respondent as a tenant holding over.

(2.) On the 24 January, 1930, the first respondent filed a suit against the appellant in the Court of the Subordinate Judge of Bapatla, for a decree for possession and mesne profits. On the 1 August, 1930, the suit was transferred to the Court of the Subordinate Judge of Tenali and there numbered O.S. No. 79 of 1930. The appellant was still a minor and her father, Rattiah, was appointed to act as her guardian ad litem. She pleaded that she had a prescriptive right to the permanent occupancy of the lands and further averred that they formed part of an estate under the Madras Estates Land Act, 1908. These issues were decided against her on the 18 April, 1934 and consequently a decree for possession and mesne profits was granted to the first respondent. In execution of that part of the decree relating to mesne profits the first respondent attached and brought to sale the seven properties described in schedule B of the plaint filed in the present suit. Five of these properties Nos. 1, 2, 3, 4 and 7 were purchased by the third respondent. Two of them Nos. 5 and 6 were purchased by the first respondent himself. The appellant's father as her guardian ad litem accepted the decision of the Subordinate Judge and on the 15 June, 1936, the first respondent obtained possession of the lands described in schedule A.

(3.) The appellant filed the present suit in 1938. She claimed that she was entitled to a declaration that the decree passed in O.S. No. 79 of 1930 was not binding on her as her guardian had been guilty of gross negligence in not preferring an appeal from the decree of the Subordinate Judge, and therefore she was entitled to recover possession of the lands which she had lost as the result of that decree. She also claimed that the lands described in schedule A form part of an inam village and that Section 6 of the Madras Estates Land Act, 1908, as now amended, gives her a right to permanent occupancy. It has not been suggested that the decision in the earlier suit brought into operation the doctrine of res judicata. The Subordinate Judge held that the guardian ad litem had not been guilty of negligence in accepting the decision in O.S. No. 79 of 1930, and that the law did not give to the appellant occupancy rights in the properties described in schedule A. He considered that the item granted to the deity of the math was a service inam and that for this reason the appellant could not acquire a right of permanent occupancy. There were other questions raised in the trial Court, but it is not necessary to mention them, as they have not been raised before us. Admittedly the suit must fail so far as the A schedule lands are concerned if the inam granted did not comprise the whole village and as regards the B schedule lands if the guardian ad litem appointed in O.S. No. 79 of 1930 was not guilty of gross negligence.