ZAMINDAR OF BODOKIMIDY Vs. BUDANKAYALA BHIMAYYA

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the Zamindar of Peddakimidi to establish his right to a tamarind tope in a village within the Zamindari. The first and principal defendant was impleaded because he alleged that he had bought the occupancy rights of the ryots and therewith the right to the trees on the jirayati lands. No evidence of this sale having been adduced in the trial Court,the learned District Munsif held that the defendants must be treated as mere trespassers unentitled to avail themselves of the provisions of Section 12 of the Madras Estates Land Act. Even if they were so entitled (he continued) there was sufficient evidence to show that when the inam village, as it formely was, was resumed in 1890 and re- granted as jirayati, the right to the trees was not granted to the ryots. He accordingly decreed the claim.

(2.) In appeal, the learned Subordinate Judge although holding that the civil Court had no jurisdiction to try the suit, proceeded to dispose of it upon its merits. He admitted in evidence the 1 defendant's sale deed, found that he thus stood in the shoes of the occupancy ryots, applied Section 12 and decided against the Zamindar's claim. This Second Appeal is filed on behalf of the late plaintiff's minor son by the agent of the Court of Wards in Ganjam.

(3.) An endeavour has been made to dispute the assumption of both the lower Courts, that what the Zamindar granted in 1890, after resuming the inam, was permanent occupancy rights. There is however, a clear admission in para. 3 of the plaint that the grant was of this nature, the phrase "on jirayati tenure" being, so far as my experience goes, only used where occupancy rights exist. It is further clear that this assumption underlay the proceedings in both Courts, and it appears again in the memorandum of Second Appeal. It is too late now, therefore, to raise a contention to the contrary.