LAWS(PVC)-1928-1-101

(SREE RAJAH BOMMADEVARA) NAGANNA NAIDU BAHADUR ZAMINDAR GARU Vs. (SREE RAJAH BOMMADEVARA) VENKATARAYALU NAIDU BAHADUR ZAMINDAR GARU

Decided On January 31, 1928
NAGANNA NAIDU BAHADUR ZAMINDAR GARU Appellant
V/S
(SREE RAJAH BOMMADEVARA) VENKATARAYALU NAIDU BAHADUR ZAMINDAR GARU Respondents

JUDGEMENT

(1.) The plaintiff has brought these suits against the defendants for damages for malicious prosecution. The plaintiff and defendant 1 are brothers and owners of the North Vallur Zamindari in respect of which defendant 1 had filed a partition suit which was going on at the time of this suit, having bean filed in 19 L9. The other defendants are the tenants of the estate who filed complaints against the plaintiff for illegal distraint of their property, for non-payment of rent. In the course of the partition suit the plaintiff and defendant 1 entered into a compromise which provides for a large number of matters and inter alia entrusts the management of the estate to the plaintiff. That provision is, however, qualified by Clause 5 which says that the plaintiff should be the manager of the estate until the business mentioned in para. 3 is completed. Para. 3 refers to effecting division by metes and bounds and casting lots regarding the respective shares and after the shares are determined it-recites: that within a month's time after they are given thus, the defendant, namely, the present plaintiff, should select each lot he likes and take it without raising any objection in the matter of such lots.

(2.) When, therefore, these lots had been east and a definite share allotted to each of the brothers, Clause 5 would apparently come into effect and each of the brothers would manage his own share. It is admitted that so far as kamatam lands which were divided about March 1920 are concerned this course was adopted and defendant 1 did take possession of his share, but the contention for the appellant-plaintiff is that in respect of cultivated lands which were divided about August 1920, vide Ex. 28 (a), possession was not given to defendant 1, but romained with the plaintiff. There is, however, considerable evidence to show that defendant 1 did actually take possession. On 31 August defendant 1 appointed one Venkatappiah as the thanadar of his share and on 2 September, one Narasimham, who had been managing the property under the plaintiff directed the amaldar for Maddur village, which fell to defendant l's share, to hand over all cash, account books, etc. and we also have other documents Exs 30, 30 (a) and 28 which tend to show defendant 1's possession of his share.

(3.) In Ex. 10 the Tahsildar of Bezwada recognises defendant 1's possession and the value of that document is sought to be discounted on the ground that the document refers to a house site, but we have been shown no reason why any difference should have been made in handing over kamatam lands and house sites as opposed to lands under cultivation by the tenants. Again Ex. 15 (a) is a petition by a contractor agreeing to give up certain lands to defendant 1. Ex. 1 (a) is another document to show that defendant 1 was the person to whom the tenants applied for leases. All these facts taken together show clearly that defendant 1 must have been in possession of his share and this view is considerably strengthened by the fact that in the plaintiff's accounts, Ex. 20, he transferred a sum in respect of defendant 1's share from the joint account in September 1920, and two months later he re-credited it to the joint account, apparently intending to put forward the claim that he was still the manager in possession of the whole of the zamindari. In this state of affairs we have to consider whether defendant 2 in each of the four complaints filed his complaint without reasonable and probable cause and maliciously. On 7 December 1920, the plaintiff and his men, including a constable, went to the village of Chodavaram and demanded rent from these defendants. They say that they informed the plaintiff that they had already paid the rent to defendant 1, and we have here receipts which show that payments were made in November 1920, Distraint was, however, effected and cattle were taken away from the houses of these defendants, one of whom was the Village Munsif. They at once went to Bezwada and, whether before or after consulting defendant 1 immaterial, filed com-plaints through a vakil one Kambhotlu, P.W. 11, before, the Sub-Divisional Magistrate, These complaints purport to be complaints of, an offence under Section 212, Estates Land Act, and the fact that in the complaints it is stated that the acts of the accused would amount to robbery does not constitute a complaint under Section 392, I.P.C. This is clear from the fact that the Sub-Divisional Magistrate at once transferred the complaint as being one under Section 212, Estates Land Act, to a Magistrate who had no jurisdiction to try a case under Section 392, I.P.C. These complaints were eventually dismissed as false.