NIDADAVOLE RAMALINGAM Vs. NIDADAVOLE VEERABHADRADU

JUDGEMENT

(1.) This second appeal is by the plaintiff who sued for possession of certain lands which are admittedly village service inam (for blacksmith's service) in the Pittapur Estate. The plaintiff admits that neither he nor his father was the holder of the office or was doing the service and that defendant No. 1 and after him defendants Nos. 2 and 3 are the holders of the office and have been discharging the duties; but he claimed that his father and after his death himself have been in possession of those lands for a long time and that he has acquired a title thereto by adverse possession as against the office-holders, though such possession might not affect the right of the Government to resume the lands.

(2.) In view of the omission of the defendants in the written statement to deny the plaint allegations as to the circumstances under which the plaintiff's father came into possession of the suit lands, we may take it that as alleged in the plaint the plaintiff's father must have been put into possession of these lands at a family partition between himself and his brother, defendant No. 1. Whether possession derived under such circumstances should be regarded as permissive or as adverse is not altogether beyond doubt. It was the prevalent idea for some time, notwithstanding all the provisions of the regulations or the statute, that these service mams were in essence family property, and if the office-holder allows some other members of his family to remain in possession, the Court need not necessarily regard such possession as adverse to the office-holder. However the Court of first instance, in this case, held the possession to be adverse and the argument before me has proceeded on that footing. The evidence in the case establishes that from about 1891, the plaintiff's branch has been in possession of these properties. This date is important, because it is undoubtedly within 12 years of the passing of the Proprietary Estates Village Service Act II of 1891.

(3.) On. behalf of the appellant, Mr. Somasundaram has criticised the judgment of the lower Appellate Court, by pointing out that questions Nos. 1 and 2 stated as points for decision in para. 2 of its judgment, are not really the questions to be decided in the case. The question is not whether the plaintiff has by prescription, acquired a right to these properties as "private properties that is, even as against the Government, but whether he has not acquired a right to continue in possession thereof as against the office-holders, until the Government choose to intervene. This criticism is, to some extent, justified, but I do not think it follows from this that the conclusion of the learned District Judge is not correct. In para. 7 the learned District Judge refers to the argument that Section 28, Limitation Act, cannot be availed of by the plaintiff in this case and that any adverse possession after Act III of 1895 (I will add also Act II of 1894) would be of no avail. Though the learned District Judge does not discuss the questions at length, it is in the next paragraph that he states ins conclusion that the plaintiff did not acquire prescriptive title to the, suit properties.