SREE RAJA BOMMADEVARA NAGANNA NAIDU BAHADUR ZAMINDAR GARU Vs. SREE RAJA BOMMADEVARA VENKATARAYULU NAIDU BAHADUR ZAMINDAR GARU

JUDGEMENT

(1.) The plaintiff has brought these suits against the defendants for damages for malicious prosecution. The plaintiff and the 1 defendant are brothers ami owners of the North Vallur zemindari in respect of which the 1 defendant had filed a partition suit which was going on at the time of this suit, having been filed in 1919. 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 the 1 defendant 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. The third paragraph 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 . When therefore, these lots had been cost 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 the first defendant 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, 19.20, vide Ex. XXVIII (a) possession was not given to the first defendant but remained with the plaintiff. There is, however, considerable evidence to show that the first defendant did actually take possession. On the 31 of August the first defendant appointed one Venkatappiah as the thanedar of his share and on the 2 September, one Narasimham, who had been managing the property under plaintiff directed the amaldag for Maddur village, which fell to the first defendant's share, to hand over all cash, account-books etc, and we also have other documents Exs. XXX, XXX (a) and XXVIII, which tend to show the first defendant's possession of his share. In Ex. X the Tahsildar of Bezwada recognises the first defendant'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 XV (a) is a petition by a contractor agreeing to give up certain lands to the first defendant. Exhibit I(a) is another document to show that the first defendant was the person to whom the tenants applied for leases. All these facts taken together show clearly that the first defendant must have been in possession of his share and this view is considerably strengthened by the fact that in the plaintiff's accounts, Ex. XX, he transferred a sum in respect of the first defendant'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 zemindari. In this state of affairs we have to consider whether the second defendant 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 the first defendant, 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 the first defendant is immaterial, filed complaints through a Vakil, one Kambhotlu P.W. No. 11, before the Sub- Divisional Magistrate. These complaints purport to be complaints of an offence under Section 212 of the 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, Indian Indian Penal Code. This is clear from the fact that the Sub-Divisional Magistrate at once transferred the complaint as being one under Section 212 of the Estates Land Act to a Magistrate who had no jurisdiction to try a case under Section 392, Indian Penal Code. These complaints were eventually dismissed as false. The judgment in that case is filed here as Ex. G. The first thing that the plaintiff has to prove is that the complaints were filed without reasonable and probable cause. If, as has been pointed above, the first defendant was in possession of the lands cultivated by those tenants and had collected rent from them they would be perfectly justified in refusing to pay rent to the plaintiff and would naturally be annoyed at property being distrained in respect of money they had already paid. It is contended that under the Estates Land Act the plaintiff being the registered proprietor of the estate was the person entitled to collect the rent and that, therefore, the tenants were bound to pay rent to him. Even if, from a strictly legal point of view, there was this liability to pay him the fact that they had paid the rent to a person who was in possession of the lands as owner, with the permission of the registered proprietor, would certainly be sufficient justification for their taking action to prevent this being charged twice over and it cannot be said in these circumstances that there was no reasonable and probable cause for the complaints filed by them; ryots in a village cannot be held to have complete egal knowledge and to be aware of the strictly legal rights of the plaintiff, if they really do exist in law.

(2.) It may also be mentioned that the plaintiff and the first defendant were joint owners of the estate and under the compromise between them the plaintiff was to be the sole manager, but in accordance with the terms of that compromise it would appear that that management was to continue only until the shares were divided. In this view the question whether the first defendant was the actual prosecutor in these complaints does not arise, for he would be entitled to the benefit of the same arguments as have been put forward for the ryots, the other defendants.

(3.) I have omitted to mention some evidence in support of the first defendant's possession, that is, the oral evidence of P.W. Nos. 3, 5, 6, 8 and 13 of whom P.W. No. 6 actually admits the collection of rents by Venkatappiah, the thanadar appointed by the first defendant to manage his lands including the plaint lands.