SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF KISTNA Vs. SREE RAJAH BOMADEVARA SATYANARAYANA VARAPRASDA RAO BAHADUR, ZAMINDAR GARU

JUDGEMENT

(1.) In the first of these the Secretary of State appeals against the decree of the Additional Subordinate Judge of Bezwada in O.S. No. 22 of 1923 on his file. This was a suit by the zemindar of South Vallur for a declaration of his title to certain lankas, and for possession with mesne profits for nine years which are estimated at over Rs. 2 lakhs and for future mesne profits till delivery. The plaintiff zemindar's father obtained the South Vallur estate in 1896 and his uncle got the North Vallur estate and the latter successfully established his right to possession of the lankas attached to his estate [cf. Secretary of State for India v. Bommadevara Venkatanarasinha Naidu 58 Ind. Cas. 689 : (1920) M.W.N. 209 : 11 L.W. 256 : 27 M.L.T. 147.]

(2.) From 1894 the Government was in possession of the Kistna River for conservancy purposes and the suit lankas were formed in consequence of the operations of Government. On 12 June, 1920, the plaintiff zemindar made his first demand for the possession of the suit lankas and they were delivered to him on 14 July, 1921. The suit, O.S. No. 22 of 1923, was, therefore, only fought before the Sub-Judge on the question of mesne profits. The Government was in possession of the Kistna River under the provisions of Act VI of 1884. Section 11 of the Act runs as follows: After such surveys shall have been completed and approved and the notification as provided by this Act made by the Governor-in-Council, land within the limits of a river-bed, as defined in Section 7 which has not been cultivated for two years previous to the date on which this Act is applied to the river, shall not, without the previous permission of the Conservator of Rivera in writing be planted, cultivated or built upon, and it shall not be lawful without such permission to plant, cultivate or build upon, within the limit of a river-bed, any new formation of land. Whoever commences or carries on, or attempts to carry on, any plantation, cultivation or construction in contravention of this section and of a notice from the Conservator to desist shall, on conviction before a Magistrate, be liable to a fine not exceeding rupees five hundred or, in default of payment, to simple imprisonment not exceeding three months for every such offence.

(3.) By Section 12 cultivation may be prohibited if it tends to obstruct or divert the course of the river. By Section 16 refusal of permission to cultivate or requisition to remove construction, etc., give a right of compensation to the person aggrieved by such refusal or requisition. The Subordinate Judge has found that Government were never in wrongful possession of the suit properties but were in possession under their statutory right and that permission to cultivate was never refused. It was not even applied for in this case. The Sub- Judge, however, held that the zemindar was entitled to mesne profits for one year as Government was in possession for that period "even after demand." He, therefore, held that Government's possession from July, 1920, was wrongful and awarded the zemindar mesne profits at the rate of Rs. 30 per acre. It is from this decision that the Government appeals. The Sub-Judge after finding that the plaintiff never applied for permission and that it is only when permission is refused that a cause of action is given seems to be clearly wrong in holding that Government's possession from July, 1920, was wrongful. Although he finds as just stated, he seems to hold that demand on the part of plaintiff is sufficient to give a right to compensation. This is clearly contrary to the provisions of Section 16. In the other Appeal No. 193 of 1924 the zemindar contends that the Secretary of State assarted a title, to the lankas against him and that the Secretary of State's possession was, therefore, wrongful ab initio and that he is liable for mesne profits for the whole of 9 years from 1911. The zemindar relies on the position of the North Vallur estate and says the same considerations apply to South Vallur. As pointed out by the Sub-Judge in the case of North Vallur the cause of action was refusal of permission to the zemindar in 1911. It seems to me that we have nothing to do with North Vallur here and that the fact that they were once in the same zemindari cannot affect the present case. As stated above the first demand for possession was on 14 June, 1920, which appears to have been a notice of suit. The Collector replied on 7 August, 1920, (Ex. XI) requesting the zemindar either to furnish a plan or have the extents claimed pegged out or demarcated on the ground. On 19 November, 1920, (Ex. E-l) the Collector offered to put zemindar in possession if the estate would waive mesne profits claimed in the suit notice. An office note on this is to the effect that the zemindar was unwilling to waive his claim to mesne profits and a reply seems to have been sent to this letter of the Collector on 23 November, 1920, but it is not exhibited and on 25 November, 1920, the suit was filed. On 29th November, 1920, the Collector wrote to say that the matter has been referred to the Board of Revenue for orders. On 28 April, 1921, (Ex. XII) Government agreed to recognise claim of zemindar to the suit accretions in the Kistna River and on 14 July, 1921, possession was delivered.