B AYYAPARAJU Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL (REPRESENTED BY THE COLLECTOR OF KISTNA DISTRICT)

JUDGEMENT

(1.) In this case the plaintiff sued the Secretary of State asking for a decree declaring his title to a house-site in a certain village, for recovering a certain sum of money which had been levied from him as penal assessment and for a perpetual injunction restraining the defendant from levying any such assessment on the lands in question. The defendant s case was that the land Ashalmenaha being what is called Potter s Inam, and does not belong to the plaintiff and that on that ground the defendant was entitled to collect penal assessment from the plaintiff.

(2.) Both the lower courts, on a consideration of the evidence, have found that the plaintiff did not succeed in proving the ownership of the land. It is found however at the same time that the plaintiff: is in possession of the land and has been so for about throe years. He is in possession under two documents of title derived from two persons, Venkatasami and Subarayudu, one of whom at least was in possession of the land. There is no finding by either court as to whether the land is Ashalmenaha or Potter s Inam or not. They thought that, inasmuch as the plaintiff failed to prove the title of his vendors, the suit must be dismissed. In my opinion that would not be sufficient to conclude this suit. It is found that the plaintiff is in possession of the land and we may take it that he is in possession, under a prima facie title, derived from persons in possession of the land. That being so, if the defendant failed to prove that the land was an Ashalmenaha or Potter s Inam and he had a legal title to it, the plaintiff would be entitled at least to the declaration that he is in lawful possession of the land to use the language of the Privy Council in Ismail Ariff v. Mahomed Ghous (1893) I.L.R. 20 Calc. 834. It is contended. however by the learned pleader who appeared for the respondent that mere possession is not sufficient to found a declaration of title; and in support of this he cited Hanmantrav v. Secretary of State for India (1901) I.L.R. 25 Bom. 287 and Rassonada Rayar v. Sitharama Pillai (1864) 2 M.H.C.R. 171. The ruling in Hanmantrav v. Secretary of State for India (1901) I.L.R. 25 Bom. 287 does not, it seems to me, support the contention of the respondent. All that is laid down there is that, if the possession is shown to be wrongful, then the plaintiff would not be entitled to a declaration of title. But here it cannot be said upon the findings as they now stand that the plaintiff s possession is wrongful. It is not necessary to discuss Rassoonada Rayar y. Sitharama Pillai (1864) 2 M.H.C.R. 171, because in my opinion the subsequent judgment of the Privy Council in Ismail Ariff v. Mahomed Ghous (1893) I.L.R. 20 Calc. 834 (P.C.) is quite clear and conclusive on the point. I may observe that at first I was inclined to entertain some doubt as to whether in a case where the defendant has not actually dispossessed the plaintiff, the plaintiff would be entitled to a declaration of his title on the strength merely of possession not extending over the statutory period. But it seems that the decision of the Privy Council at least goes to the extent that, if the plaintiff has been in possession even though for less than 12 years, he would under Section 42 of the Specific Relief Act be entitled to a declaration that he is in lawful possession as against a wrong doer who sought to interfere with his possession. The levying of penal assessment on the land, if it was not justified, would amount to unlawful interference with the plaintiff s possession.

(3.) Then apart from the question whether the plaintiff is entitled to a declaration in the terms asked for by him, it seems to me to be clear that, if the land is not shown to be communal land, the Secretary of State would have no right to collect penal assessment from a person in possession thereof simply on the ground that ho is not the legal owner of the land, but somebody else. It thus becomes necessary that we should have a finding on the question whether the land in dispute is Ashalmenaha land or not. The finding must be on the evidence on record. The finding will be submitted within three months from the date of this order and 10 days will be allowed for filing objections. Ayling, J.