SRI RAJAH MIRZA SRI PUSHAVATI ALAKA NARAYANA GAJAPATHIRAJU MAHARAJA MAURYA SULTAN BAHADUR Vs. POGARURAMAMURTHI

JUDGEMENT

(1.) The plaintiffs sued to recover possession of Survey No. 33a and another land of Laveru village in the zemindari of Vizianagaram and they made the trustee of the Vizianagaram estate, the first defendant and the tenants in occupation of Survey No. 339, defendants Nos. 2 to 12. The Subordinate Judge dismissed that suit against defendants . Nos., 2 to 12 on the ground that they had acquired an occupancy right on the coming into force of the Madras Estates Land Act, and he also rejected the plaintiffs claim to recover possession of Surrey No. 339 as against the first defendant, but he gave them a declaration that they are entitled to the melvaram of landholder's right in the survey number as against the first defendant and a decree for recovery of rent for three years prior to suit. In appeal the District Judge confirmed the decree of the lower Court.

(2.) The plaintiffs alleged in their plaint that about 1820 A. D. which was after the Permanent Settlement, the suit land was granted by the villagers of Laveru who were the predecessors in-title of defendants Nos. 2 to 12, as sarvadumbala inam to first plaintiff's grandfather in lieu of the customary fees (rusums) which they were paying for his service. In 1904 the village was surveyed and the suit land was demarcated as mirasi inam. The first defendant appealed against that order but his claim was rejected by the Assistant Superintendent of Survey. The plaint goes on to allege that the first defendant trespassed on the suit lands and took lease deeds from the other defendants in 1906 and collected rent from them subsequently. On these allegations, the plaintiffs claimed to be put in possession of the properties together with mesne profits for three years.

(3.) The Subordinate Judge, besides holding that defendants Nos. 2 to 12 had acquired occupancy rights, found that the, plaintiffs had not proved their own possession within 12 years of the suit. He rightly rejected the plaintiffs prayer for a decree for possession as the first defendant admittedly was not in actual possession of Survey No. 339 and the plaintiffs failed to prove that he had trespassed upon it as alleged in the plaint. He then proceeded, without any amendment of the plaint, to give the plaintiffs a declaratory decree against first defendant that they were entitled to the melvaram right in Survey No. 339and to recover the rents paid to him by defendants Nos. 2 to 12 for three years prior to suit in spite of the fact that such a claim altered the character of the suit. The District Judge was of opinion that the decision of the Settlement Officer Ex. G, in 1905, was final as between the plaintiffs and the first defendant, seeing that the first defendant did not bring a suit within one year of the decision, as provided by Section 13 of the Survey and Boundaries Act.