RAJA GANPATIRAJU Vs. POGARU RAMAMURTHI

JUDGEMENT

(1.) The plaintiffs sued to recover possession of Survey No. 339 and another land of Laveru village in the Zamindari of Vizayanagaram and they made, the trustee of the Vizayanagaram estate, the 1 defendant and the tenants in occupation of S. No. 339, Defendants 2 to 12. The Subordinate Judge dismissed the suit against Defendants 2 to 12 on the ground that they had acquired an occupancy right on the coming into force of the Midras Estates Land Act and he, also rejected the plaintiff's claim to recover possession of S. No. 339 as against the 1st defendant, but he gave them a declaration that they are entitled to the melwaram of landholder's right in this survey number as against the 1 defendant and a decree for recovery of rent for 3 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 2 to 12 as sarvadumbala inam to 1 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 1 defendant appealed against that order but his claim was rejected by the Assistant Superintendent of Survey. The plaint goes on to allege, that the 1 defendant trespassed on the suit land and took lease deed from the .other defendants in 1906 and collected rents 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 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 1 defendant admittedly was not in actual possession of S. 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 1 defendant that they were entitled to the malwaram right in S. No. 339 and to recover the rents paid to him by Defendants 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 in Ex. G, in 1905, was final as between the plaintiffs and the 1 defendant seeing that the 1 defendant did not bring a suit within one year of the decision, as provided by\ Section 13 of the Survey and Boundaries Act IV of 1897.