(1) Chinta Venkata Jagannadharao, as sole plaintiff, filed O.S. No. 26 of 1955 in the Sub-Court, Srikakulam praying for appointment of a receiver regarding the suit properties and for other reliefs. In the first instance, he impleaded Dola Narannaidu as the sole defendant. Subsequently, the latter was numbered as the first defendant due to the impleading of the other defendants namely, the State of Andhra Pradesh, as the second defendant, and the other defendants 3 to 27. The case came to be tried by the learned Additional District Judge, Srikakulam, as O.S. No. 2 of 1960 on his file. The latter, after full trial, dismissed the suit with costs. Thereupon the plaintiff filed this appeal.
(2) Talasamudram is a Zamin village in the District Srikakulam. In O.S. No. 54 of 1925 on the file of the Sub-Court, Berhampur, for partition of the estate, certain lands inclusive of the suit lands were allotted to the father of the plaintiff, as one land-holder. The other half was owned by various landholders including the first defendant. Ex. A-1 is the judgment in that suit. Ex. A-2 is the written statement filed by Dola Yerrannaidu and another in that suit. Ex. A-2(a) is the plaint schedule, Ex. A-3 is the final decree and Ex. A-4, Ex. A-5 are the schedules attached to the final decree (Ex. A-3). Exs. A-6 to A-11 are various documents which show the details of allotment by which the plaintiff came to be the owner of the suit lands as decree-holder. On 12th January, 1951, the Zamindari of Talasamundram was notified under S. 3 of the Madras Estates Abolition (Conversion into Ryotwari) Act, (Madras Act XXVI of 1948) (hereafter referred to in this judgment as the Act).
(3) On 22-7-1948, the 1st defendant wrote a letter (Ex. A-119), to the father of the plaintiff mentioning that some casuarina saplings in the suit land had perished and that they might be replaced by fresh planting. The first defendant made an offer as follows:-
'Due to lack of supervision, the plants in the garden have become entirely damaged. Some trees only remain here and there. If you should immediately arrange either to lease out the said portions or to give them on sharing system, it will facilitate planting of trees now. You may obtain the agreements, etc., from Gopaish or if you want me to come, I will come.'
The father of the plaintiff wrote a reply (Ex. A-120), dated 22-7-1948, as follows:-
'I will give you the Banjar land of about 50 acres in extent belonging to me .. to enable you to raise casuarina garden. I agree for the arrangement..'
On 3-9-1948, the father of the plaintiff and the first defendant entered into a registered agreement (Ex. A-12) which recites as follows:-
'Combined agreement for cultivation of land for a period of 8 years entered into on 3-9-1948.
It is settled by both of us that besides the casuarina plants previously planted by the first individual in the jeroyithi, dry, sand dibbas (mounds) and gayalu lands belonging to the first individual (the father of the plaintiff), the second individual (first defendant) should from now onwards raise casuarina plants in the remaining lands and that from now onwards the second individual himself should by his own efforts nurse and grow the said entire plants from this date to 3-9-1958 for a period of eight years and that at the end of the final year the first and second individuals should divide the said casuarina garden into two equal shares between themselves or if both the individuals should sell the said casuarina garden to others, they should divide equally in equal shares the proceeds realised by the sale of all the said casuarina trees remaining by then and that the second individual should, in case he raises wet crops in the land that can be used for wet cultivation out of the said lands, being enjoyment for four years, the said entire wet crops from the date when they begin to yield and that the second individual should deliver to the first individual ten putties of paddy worth about Rs. 100 per year towards the said crops from the end of the said four years till the end of the period. It is settled that the first individual should pay the taxes payable on the said land and that, on the expiry of the stipulated period, the second individual should deliver possession of the said lands to the first individual. On the expiry of the stipulated period, the value of the casuarina trees to be divided between them may be about Rs. 2,000.
Ex. A-122 is an unregistered document (letter) purporting to be executed by the first defendant. It runs as follows:-
'As regards the lands of the extent of Acs. 10-73 cts mentioned below and situate in Talasamudram village, you have agreed to give the same to me for a period of eight years for the purpose of my carrying out cultivation or leasing out the same to others as I please and it has been settled that I shall give to you, each year, 1/2 share of the produce derived from the said land.'
The plaintiff says that the first defendants executed this document but the 1st defendant denied execution.
(4) On 6-1-1950, the father of the plaintiff died and the plaintiff succeeded to his rights. On 12-1-1951, the Government made notification under S. 3(1)(B) of the Madras Estates Abolition Act. On 26-7-1952, the Collector of Srikakulam made a reference to the Commissioner for Settlement of Estates (Board of Revenue) requesting for instructions. The Commissioner passed an order (Ex. A-16), dated 20-10-1952, as follows:-
'... An unsurveyed extent of 299-29 acres in this village (Talasamudram) had been kept in the enjoyment of four landholders. There is casuarina tope in an extent of 180 acres of this land and mango tope in 10 acres. On 3-9-1948 (i.e. after 1-7-1945) one of the landholders (father of the plaintiff) of this estate leased out his share of the above land to another landholder (first defendant) of the same estate for a period of eight years. The Collector requests instructions pending the decision of the Settlement Officer on the question of the landholder's eligibility whether to ryotwari patta for the lands under Section 15 of the Abolition Act, whether the land vests in the Government under Section 3(b) of the Abolition Act and whether the case may be examined under Section 20 of the Abolition Act and whether Section 20 applies to lands for which ryotwari patta would be granted.
The lands are in enjoyment of the landholders. They have raised casuarina trees and mango topes. According to the explanation to Sec. 12 of the Abolition Act, 'cultivate' includes the planting and rearing of topes, gardens and orchards. So if the landholders could prove that they have been cultivating the lands themselves and that their cases fall under any of the clauses of Sec. 12 of the Abolition Act they are entitled to ryotwari patta. It appears to the Board that the landholders are prima facie entitled to ryotwari patta. The Collector is informed that it is unnecessary to disturb their possession till it is decided by the Settlement Officer that they are not entitled to ryotwari patta. It is only then they are not entitled to ryotwari patta and when they are dispossess under S. 3(D) of the Abolition Act, the land would vest in Government from the date of taking over. The Collector is, therefore, informed that Sec. 20(1) does not apply to lands for which the landholders are prima facie entitled to ryotwaripatta; and that the Government need not be interested in the right created in respect of such lands as ultimately ryotwari pattas will have to be issued to the landholders for them.'
(5) On 25-7-1955, the plaintiff issued a registered notice through a lawyer to the first defendant making certain demands asking for an account and forbidding the first defendant from cutting trees in the casuarina tope and threatening to file a suit if the first defendant did not comply with the demands made in the notice. The first defendant issued a reply notice (Ex. A-124). The plaintiff filed his suit on 21-9-1955 asking for reliefs as follows:-
(a) That a receiver may be appointed in respect of suit properties and he be directed to take possession of the suit properties, to sell the casuarina plantation situate within the suit properties in suit S. Nos. Excluding the plaintiff's right in the soil, and realise and distribute the sale proceeds in equal shares to plaintiff and defendant and to realise the income from other sources, from wet and dry lands and distribute between plaintiff and defendant as per the terms of the registered agreement, dated 3-9-1948, and letter, dated 3-9-1948, and to work out the other rights specified therein as would accrue by the end of the term or, in the alternative, to partition the suit plantations into two equal shares and deliver one share to plaintiff.
(b) The defendant be directed to render a true and proper account of all realisations made by him till now by sale of casuarina and other trees in the suit lands and, after ascertaining the total value thereof, the defendant may be directed to pay the plaintiff half share of the said sum with interest from the date of demand, dated 27-7-1955.
(c) That the defendant be directed to pay the plaintiff the sum of Rs. 300 towards the value of paddy payable to plaintiff in respect of wet lands reclaimed and Rs. 750 towards plaintiff's half share of dry crops payable by defendant to plaintiff under the letter, dated 3-9-1948, for three years before the suit with subsequent interest from date of demand until payment.
(d) For costs of suit and such other relief as the court deems fit be also granted to the plaintiff.
(6) The contentions of the plaintiff in the plaint are to the following effect. The suit lands are the private lands of the plaintiff. By over sight and mistake, survey No. 199 fit for dry cultivation and Lanka Budava lands of Acs. 10-73 cts. In S. No. 211 were omitted to be mentioned in Ex. A-12 and S. No. 189 was written by mistake for S. No. 188. Consequently, the first defendant executed Ex. A-122 on the same day (3-9-1948). From about two years prior to the suit, i.e., from about 21-9-1953, the first defendant began to cut and sell the casuarina trees and to misappropriate the usufruct thereof to himself. The first defendant did not give the share which was due to the plaintiff under the agreement.
(7) The first defendant filed a written statement to the following effect. On the abolition of the Zamin of Talasamudram in 1951, the Government had taken over the whole estate on 12-1-1951 including all communal lands, porambokes, other non-ryoti lands, waste lands, pasture lands and lanka lands. All the 239 acres and 39 cents of waste (banjara) lands and all the 105 acres and 49 cents of poramboke lands in the village became vested in the Government on and from the said date (12-1-1951). The suit lands also thus became vested in the Government. The plaintiff has no longer any interest in the suit lands. Whatever rights he might have had previously have been abolished by the Act and the Government have become the owner of the entire village. So, the suit land and the tope have become the subject-matter of contractual relations and obligations between the Government and the first defendant. The suit lands are Malukdari Jeroiti, dry and waste lands. The plaintiff has no right to them. They are not lands reserved for topes and cashewnut or other garden plantations as alleged in the plaint nor are they his private lands. Under the provisions of the Abolition Act, it is first defendant as being in sole possession and enjoyment by the date of the introduction of the Act, that is entitled to patta for the suit lands but not the plaintiff. Out of the total extent of Acs. 117-47 cents mentioned in the combined muchilika, only about seventy acres came into the possession of the defendant. Ex. A. 122 is not true and binding on the first defendant. The first defendant did not cut even a single tree. The muchilika (Ex. A-12) has become infructuous after the village was taken over by the Government. Till the expiry of the stipulated period that is, eight years in Ex. A-12 ending on 3-9-1956, the plaintiff has no cause of action. The suit was bad for non-joinder of the Government (second defendant) and many tenants who were in possession of various extents in S. No. 211.
(8) In view of the plea of non-joinder, defendants 2 to 27 became impleaded to the suit.
(9) The second defendant filed a written statement contending as follows. The alleged contract (Ex. A-12) is not valid and binding on the second defendant, even if it is true. The plaintiff has not the right to possession to the suitlands and is not entitled to the ryotwari patta. Ex. A-12 was executed between two landholders inter se obviously to evade the provisions of law; and it is not valid and binding and does not affect the rights of the Government. Under the Madras Estates Communal, Forest and Private Lands (Prohibition of Alienation) Ordinance, 1947, and, under the same Act, the suit lease is void so far as waste lands are concerned. Both the plaintiff and the first defendant encroached on the lands which vested in the Government from 12-1-1951 and they are not entitled to the trees and crops on those lands. The second defendant, therefore, prayed that the suit may be dismissed with costs.
(10) Defendants 3 and 4 filed a written statement to the effect that hey and other tenants were in possession of the lands till the end of December, 1958, and were never dispossessed and that they had been paying kist to the Government and that they were entitled to the lands which were in the possession of themselves and their ancestors from a long time back.
(11) Defendants 5 to 27 adopted the written statement of defendants 3 and 4.
(12) The lower court framed twenty-four issues in the first instance and also additional issues as follows:-
28-1-1959: - Additional Issues 1 and 2.
5-3-1959: - Additional Issues 1 to 4.
14-8-1959: - Additional Issue No. 1.
(13) With the consent of the Advocates on both sides the trial Court formed the issues into ten groups as mentioned in para 9 of its judgment.
(14) The plaintiff examined six witnesses of whom he himself is P.W. 1. He marked Ex. A-1 to Ex. A-197.
(15) The defendants examined eight witnesses of whom D.W. 1 was the first defendant. The marked Ex. B-1 to Ex. B-28.
(16) The learned Additional District Judge dealt with Issues of Group I and found all of them against the plaintiff:-
'1. Whether the suit lands are reserved for raising topes and horticulture governed by proviso to S. 3 and S. 12 of the Madras Estates Abolition Act?
2. Whether the suit land is private land within the meaning of S. 6(2) of the Madras Estates Land Act?
3. Whether the plaintiff has no title to the suit properties as a result of the Madras Estates Abolition Act?
4. If issue 3 is in the affirmative whether the suit is not maintainable?
Additional Issues framed on 28-1-1959:-
1. Whether the suit agreement is binding on the second defendant?
2. Whether this court has no jurisdiction to try the suit?
Issue No. 23 - Whether the plaintiff is entitled to the partition of the casuarina plantation?
In fact, when he found Issue No. 3 against the plaintiff, Issue No. 4 did not arise for decision. In particular, he mentioned in para 19 of his judgment as follows:-
'....On question of fact I will presently show that the defendants had occupancy rights but even if any class of land falls outside the purview of Section 3(1) of the Madras Estates Land Act despite the fact that the defendants did not put forward any right of occupancy, Section 12(a) would not come into play, because under the guiding principle that there is no presumption in favour of the private lands it was the plaintiff who had to prove that the lands were private lands or they were reserved bona fide for rearing topes, which he had failed to prove. With these observations, I answer these issues against the plaintiff.' He discussed Group III issues (Issue Nos. 5 and 6) together in para. 23 of the judgment. Issue No. 5 is whether the (first) defendant is an agent of the plaintiff as per the terms of the registered document, dated 3-9-1948, and Issue No. 6 is whether the (first) defendant had acquired occupancy rights in the suit lands? The learned Additional District Judge held as follows:- 'The next question is, whether the first defendant has acquired occupancy rights in the suit lands (issue. No. 6). I must at the outset refrain from giving any finding on this matter because it is a matter to be determined by competent authority, i.e., the Settlement Officer. I would like to say this much, that he has every right in the casuarina tope that stands on the suit lands under the terms of the agreement, whether the plaintiff is the landholder or the Government is the owner..... Under section 20, Madras Estates Abolition Act, the Government may terminate his rights . The word 'may' connotes discretion. The Government, under its policy may grant the lands to the 1st defendant or may not. The Civil Court cannot pronounce this way or that way.'
(17) For the purpose of this appeal, it is not necessary for us to refer to the findings of the learned Additional District Judge on the other issues. The learned Advocates on both sides also did not make any reference to the findings on those other issues.
(18) When this appeal originally came up for hearing before our learned brother, Chandrasekhara Sastry, J. Both the parties filed a joint memo, dated 14-12,1965, to the effect that as the value of the subject-matter of the appeal, inclusive of the value of the land in question, is over Rs. 20,000, the appeal may be posted before a Bench of two Judges. The learned Judge passed an order that 'in view of the memo, I direct this case to be posted before a Bench' Accordingly, the matter came up before us.
(19) The learned Advocate for the appellant, Shri. A. Kuppuswamy, contends as follows. The question as to whether the plaintiff is entitled to a ryotwari patta did not arise and the findings of the lower Court on Issue Nos. 1 to 4 were unnecessary. The only question which arose and had to be decided is whether the plaintiff was entitled to possession. The claim of the plaintiff for possessions on the basis that he had prior possession upto the date of Ex. A-12, and Ex. A-122, i.e., 3-9-1948, that he put the first defendant in possession under Ex. A-12 and Ex. A-122 and that the plaintiff has, therefore, right to recover possession and reliefs asked for in the plaint. In this connection, he also contends that, he has not lost his right to recover possession and that, therefore, he has right to the benefit of S. 64 of the Estates Abolition Act.
(20) The relevant sections of the Estates Abolition Act are as follows. Section 3 says:-
'with the effect on and from the notified date and save as otherwise expressly provided in this Act-
(b) the entire estate ; all communal lands and porambokes, other non-ryoti lands; waste lands; lanka lands; forests; .. shall stand transferred to the Government and vest in them, free of all encumbrances.
(d) the Government may after removing any obstruction that may be offered, forthwith take possession of the estate.
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider he is prima facie entitled to a ryotwari patta-
(i) if such person is a ryoti, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;
(ii) if such person is a landholder pending the decision of the Settlement Officer and the Tribunal on appeal, if any to it, as to whether he is actually entitled to such patta.' Section 11 dealt with lands in which ryot is entitled to ryotwari patta. It runs thus:-
'11. Every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of -
(a) all ryoti lands which, immediately before the notified date and where property included or ought to have been properly included in his holding and which are not either lanka lands or lands in respect of which a landholder or some other person is entitled to a ryotwari patta under any other provisions of this Act; and
(b) all lanka lands in his occupation immediately before the notified date, such lands having been in his occupation or in that of his predecessors in title continuously from the 1st day of July, 1939: Provided that no person who has been admitted into possession of any land by a landholder on or after the 1st day of July, 1945, shall, except where the Government, after an examination of the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land.'
Section 20, in so far as it is material, runs as follows:-
'S. 20(1). In cases not governed by Sections 18 and 19 where before the notified date, a landholder has created any right in any land (whether by way of lease or otherwise) including rights in any forest, mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government;
Provided further that any such right created on or after the 1st day of July, 1945, shall not be enforceable against the Government, unless it was created for a period not exceeding one year:
S. 64 runs thus:-
'S. 64. Where a person-
(a) is entitled to the ownership or to the possession or occupation of any land or building immediately before the notified date, but has transferred his right to the possession or occupation thereof or has been temporarily dispossessed or deprived of his right to the occupation thereof; and
(b) has not on that the lost his right to recover possession or occupation of such land or buildings;
He shall for the purposes of this Act and subject to the provisions thereof, be deemed to be the owner, or to be in possession or occupation, of such land or building;
Provided that any lawful transferee of the right to the possession or occupation of such land or building shall save as otherwise expressly provided in this Act continue to have the same rights against his transferor, as he had immediately before the notified date:
Provided further that any lawful transferee of the title to such land or building shall be entitled to all the rights under this Act of his transferor.'
(21) In this case, beyond doubts or dispute, the plaintiff was not in physical possession of the suit land on the notified date namely, 12-1-1951. The first defendant was in possession of lands concerned in Ex. A-12 and defendants 3 to 27 were in possession of the lands concerned in Ex. A-122 on that date.
(22) The contention of the plaintiff is that he was in possession of these lands through them (D-1 and D-3 to D-27).
(23) So far as defendants 3 to 27 are concerned, the plaintiff is claiming right regarding lands covered by Ex. A-122. This was originally unstamped and unregistered. Subsequently, the plaintiff paid stamp duty and penalty. Therefore, the disability of Ex. A-122 by way of being an unstamped documents has ceased to exist. Still, it is a document which, as a lease, requires registration and is an unregistered document. The learned Additional District Judge, while dealing with the document (Ex. A-122), stated as follows:-
'From the recital contained therein 'at the end of the term, I will deliver back the possession of the lands to you' it will appear that the document, Ex. A-122, required registration, it being a lease-deed for more than one year, i.e., for a period of eight years, and because it is not registered it cannot be admitted in evidence. Secondly, I am not prepared to hold that its execution is proved.
If Ex. A-122 is inadmissible in evidence, the question as to whether its execution is proved need not be gone into
(24) Shri Kuppuswami for the appellant contends that Ex. A-122 is admissible to prove the nature of the possession but, in effect, the plaintiff is seeking to rely on the fact of lease in Ex. A-122, i.e., the substance of Ex. A-122 to get the relief prayed for in the plaint. Therefore, Ex. A-122 is inadmissible in evidence. As such, the plaintiff is not entitled to the relief prayed for regarding the lands covered by Ex. A-122. No decree can be granted to the plaintiff against defendants 3 to 27. In this respect, we agree with the lower Court.
(25) Shri Kuppuswami contends that Ex. A-12 does not amount to a lease as it was given for casuarina cultivation. In Reddi Govinda Reddi v. State of A.P., 1961 Andh LT 786, it was held by one of us that the right of a person either under a tree patta or under a permanent lease to the exclusive usufruct of a tamarind tree standing on a particular land is a right with respect to the land which is in the same catagory and ejusdem generis with right of fisheries, right in quarries and forests on the land and, that, therefore, the rights of the plaintiffs under the document, as permanent lessees of the tamarind tope, are enforceable against the Government under S. 20(1) of the Act, unaffected by the provisions in sub-sections (b), (c) and (g) of Section 3 of the Act. That decision was based on the decisions of the Supreme Court in Shanta Bai v. State of Bombay, : 1SCR265 and of the Madras High Court in G. Mac Watters, Collector of Salem, (1889) ILR 12 Mad 203 (FB). Apart from the portions which were covered by raising of casurina trees, some of the lands in this case were cultivated. Ex. A-12 itself mentions that the land was given for . Therefore Ex.A-12 created an interest in land for the purpose of S.20(1) of the Act. As this interest was created after 1-7-1945 and as it was for a period exceeding one year, the second proviso to S. 20 applies and, therefore, Ex. A-12 is not enforceable against the Government. The main body of S. 20(I) provides that, if any rights in land created by the landholder shall be deemed to be valid, they shall be enforceable by or against the Government, Under S. 3(B), this property covered by Ex. A-12 vested in the Government free of all encumbrances and the Government shall not dispossess the person in possession only if he comes under the proviso to that Section which has already been extracted.
(26) S. 7 of the Act runs as follows-
'The Board of Revenue shall have power-
(a) to give effect to the provisions of this Act and in particular to superintend the taking over of estates.
(B) to issue instructions for the guidance of District Collector, Settlement Officers ....'
Under S. 20(I), the Government of Madras issued a rule by publication in Fort. St. George Gazette, dated 5-6-1951 which runs as follows:-
'In the case of any right in any land created by a landholder on or after the 1st day of July 1945, for a period exceeding one year and falling under the second proviso to Section 20(I) of the said Act, the authority to decide whether the right should be terminated or allowed to continue shall be the Board of Revenue. Any order passed by the Board of Revenue under this rule shall be subject to revision by the Government.'
(27) Shri Kuppuswami for the plaintiff contends that Ex. A-16 is an Order passed by the Board of Revenue under this Rule read with S. 7(B) and S. 20(I) of the Act and that, in effect, it amounts to a decision contemplated under the proviso coming immediately after S. 3(D) of the Act and that the Government shall not dispossess the plaintiff on the ground that the plaintiff is prima facie entitled to a ryotwari patta. On the other hand, it is urged on behalf of the first defendant that Ex. A-16 is not an order in favour of the plaintiff and that it is an order to the effect that the Government shall not dispossess the first defendant who is in possession on the ground that the Government considered the first defendant prima facie to be entitled to a patta.
(28) The relevant features in Ex. A-16 are as follows. It relates to not merely the suit land but all the unsurveyed extent of 299.29 acres which the Government considered to be in the enjoyment of four landholders including the plaintiff and the first defendant. The Government considered that one landholder (father of the plaintiff) had leased his share to another landholder. They thought that thereby the entire lands were in the enjoyment of landholders. They did not decide as to which particular landholder was in enjoyment of the suit land and, in particular, whether it was the plaintiff or the first defendant. They dealt with the entire block of 299.29 acres as a group and all the four landholders as one unit and were content to hold that the landholders as a group was in possession of the block of land as a unit. On that basis, they held that the group was in possession of the unit and was, therefore, prima facie entitled to ryotwari patta of the unit. They also held that the possession of the unit by the group need not be disturbed until there was a decision by the Settlement Officer that they were not entitled to a patta. The Board did not rule out the possibility of a decision by the Settlement Officer that the landholders were not entitled to ryotwari patta. It is no possible to interpret this order as meaning that the Government, represented by the competent authority under the Rule, i.e., the Board of Revenue, declared or recognised the plaintiff to be in enjoyment of the suit land, in particular, through the first defendant and defendants 3 to 27 who were undoubtedly in physical possession. It is a fact that the first defendant (vide, his plea in the written statement already referred to) did not set up any right in himself as having succeeded to the right of the plaintiff but only set up such right in the Government. But, the first defendant claimed that the Government had succeeded to the rights of the plaintiff. He also contended in para 7 of his written statement that he (D-1) and not the plaintiff was entitled to patta for the suit land and that the first defendant was in sole possession and enjoyment by the date of introduction of the Madras Estates Abolition Act.
(29) In Ex. A-16, the Government has not indicated that they considered the plaintiff and not the first defendant to be prima facie entitled to ryotwari patta or that they thought the first defendant and not the plaintiff to be entitled to a ryotwari patta as distinct from their considering that all the four landholders as a group were entitled to a ryotwari patta for the entire land of 299.29 acres as a unit. So, we do not accept the contention of Shri Kuppuswami that under Ex. A-16, the plaintiff was recognised as being in enjoyment and being prima facie entitled to a patta.
(30) Shri Kuppuswami contends that the Board considered the landholder as entitled to patta and that the plaintiff alone could claim patta as landholder whereas the first defendant could not so far as the suit land is concerned. But, the Board dealt with the lands of 299.29 acres as a unit and all landholders as a group without making any distinction inter se.
(31) Shri Kuppuswamy contends that under S. 64 of the Act, the plaintiff should be deemed to be the owner and to be in possession and occupation of the suit land. If the plaintiff is to get the benefit of S. 64, he has to satisfy the following requirements:-(1) he must be entitled to the ownership or to the possession or occupation of the suit land immediately before the notified date; and (2) he must have transferred his right to the possession or occupation must have been temporarily dispossessed; and (3) he must not have, on the notified date (12-1-1951), lost his right to recover possession. Even if he fulfils all the above requirements, 'the plaintiff shall be deemed to be the owner 'for the purposes of this Act and subject to the provisions thereof'. The first requirement is satisfied to the extent the plaintiff was entitled to the ownership immediately before 12-1-1951. But, he was not entitled to possession at that time. For, the first defendant had a right to be in possession even up to 1956, having already been put in possession in 1948. The second requirement is satisfied to the extent that the plaintiff had transferred his right to possession and occupation of the suit land. The third requirement involves the question whether on 12-1-1951, i.e., the notified date, when the notification came into force, the plaintiff lost his right to recover possession of the suit land. This itself depends on the question whether the plaintiff is entitled to a ryotwari patta for the suit land. For, under S. 3(B), the suit land had vested in the Government free of all encumbrances and, if the plaintiff was not entitled to a ryotwari patta, he could not recover possession from anyone. Even under the proviso immediately coming after S. 3(D), the Government shall not dispossess any person only if that person was in possession and was prima facie entitled to a ryotwari patta. It is only the Settlement Officer and not the Civil Court who can decide whether the first defendant or the plaintiff is entitled to a ryotwari patta. In this view the lower Court had no jurisdiction to go into the question whether the plaintiff is entitled to a ryotwari patta under S. 12 of the Act and whether the requirements of S. 12 are satisfied. The learned Additional District Judge had concluded at the end of para 16 of his judgment as follows:
'The plaintiff, therefore, is not entitled to a ryotwari patta in respect of the suit lands.' This is, in effect a finding and is without jurisdiction. This finding and the findings of the learned Additional District Judge on Issues 1 to 4 have to be and are hereby set aside.
(32) Under the proviso coming after S. 3(D), only the Government can consider as to whether the persons in possession, i.e., the first defendant and defendants 3 to 27 are entitled prima facie to a ryotwari patta. Thus, the Government is the proper authority who has got right to exercise the power under S. 20(1) read with its second proviso and consider the question of dispossession of the first defendant.
(33) The question is whether when the Government (D-2) possesses that right, the plaintiff also simultaneously has such right.
(34) It has not been shown to us that the plaintiff can have such right simultaneous and concurrent with the right of the Government (D-2). Under the second proviso to s. 20(1), the right created under Ex. A-12 shall not be enforceable against the Government. But, anyway the right under Ex. A-12 and Ex. A-122 has come to an end on 3-9-1956. Still it is left to the Government to consider whether the first defendant is prima facie entitled to ryotwari patta with a view to decide on the basis of his possession as to whether the Government should refrain from dispossessing him under the proviso coming after S. 3(D) of the Act.
(35) As the first defendant was lawfully put in possession by the plaintiff, the position of the first defendant is different from that of a trespasser. For, D-1 cannot be said to be a person who was not lawfully put in possession by the plaintiff.
(36) In the course of arguments, Shri Kuppuswami has contended that the first defendant is now entitled to the relief of possession. For this purpose, he has sought to construe the relief in para 5(a) of the plaint as supporting and justifying a relief of possession being granted in the suit. We are unable to accept his interpretation. We are unable to accept his interpretation. When the judgment of the trial Court was pronounced on 3-5-1960, the period of eight years covered by Ex. A-12 had expired even by 3-9-1956. Even in para 4 of the plaint, where he has valued the suit for purposes of court-fees, the plaintiff has not valued the relief for possession of the suit lands.
(37) Shri Kuppuswami contends that, if the relief in para 5(a) of the plaint for appointment of receiver was granted, the receiver would be in possession and that the possession of the receiver has to be treated as possession of the Court. He argues that the Court has to deliver the land to the person entitled to possession and, therefore, the Court must deliver possession to the plaintiff, if he were entitled to possession to the plaintiff, if he were entitled to possession under the law, apart from the question his asking for relief of possession. We find that this contention is not available to him on the facts of the present case.
(38) It is said that there was no receiver in possession on the date of the judgment of the lower Court. It is beyond doubt that the property is now in the possession of the first defendant and defendants 3 to 27. If the property was taken from the first defendant by a receiver and various reliefs asked for in the plaint were given effect to, it does not necessarily mean that the property should be given to the plaintiff on the ground that he is the lawful owner and that it should not be given to the first defendant from whose possession it is taken when there is no relief asked for in the plaint for possession.
(39) Shri Kuppuswami suggests that the relief of possession can be granted subject to payment of court fee. We find that such relief cannot be granted. The learned Counsel for the plaintiff offers to amend the plaint also. But, he has not actually applied for the amendment. On the facts of this case, we do not consider that the relief of possession can be granted by this Court even if the plaint were amended.
(40) As far as the relief of accounting is concerned, the plaint itself makes clear that so far as casuarina trees are concerned, the arrangement was that, in the eighth year of the contract, the two parties would be at liberty to partition the grown-up casuarina plantation and that the first defendant caused waste only from two years prior to the plaint, i.e., from about 21-9-1953, which was long after the date 12-1-1951, when the Government took over the estate.
(41) Regarding the paddy claimed in para V(c) of the plaint, the claim is limited only for three years prior to the suit. This period also falls after the estate was taken over by the Government.
(42) The reliefs prayed for in the suit relate to a period after the estate was taken over by the Government. Therefore, no relief can be granted to the plaintiff as asked for by him in the plaint.
(43) We hereby make it clear that any observation or finding in the judgment of the lower Court or any observation by us in this judgment will not stand in the way of competent authorities deciding as to whether any one of the parties is entitled to a ryotwari patta in respect of the suit lands and, if so, who is entitled to it. We refrain from going into a further detailed discussion of the claims of both parties so as not to embarras them in proceedings which are likely to take place before the Settlement Officer for deciding the matter mentioned above.
(44) In the result, we confirm the judgment and decree of the trial Court and dismiss the appeal subject to what has been stated above in this judgment with costs of respondents 1,2, 3, to 5, 11, 13, 14, 16 and 17. Advocate's fee so far as each of D-1, D-2 are concerned is fixed at Rs. 375. The other respondents will bear their own costs.
(45) Appeal dismissed.