1. Mr. Krishnasami Aiyar argues that no cause of action is disclosed in the plaint. This case has been before the Courts during the last six years and yet this point was not raised hitherto; on that account we examined the pleadings carefully; it appears to us that prima facie the contention of the appellant is well founded. This appeal relates only to items 672A and 674B. The facts stated in the plaint are, that the plaintiff obtained' a mortgage in respect of these items and other 'properties from certain persons who may be described as the Vavilla1 people. He brought a suit (Original Suit No. 108 of 1896) against the mortgagors. The right of the Vavilla people to mortgage the property was disputed by the 12th defendant who claimed title from certain persons who may be 'called the Sarasvati people. The 12th defendant conveyed his rights to one Nalluri Samiah. Nalluri Samiah was made the 19th defendant. Issues 14 and 15 raised the question as to whether the property belonged to the Vavilla or the Sarasvati people. The judgment of the Munsif is not very clear on this point. In effect he jaeems to have found in favour of the Vavilla people; he gave a decree to the plaintiff. This was confirmed on appeal by the District Judge. While;a Second Appeal to the High Court was pending, the revenue payable to Government oh the property fell into arrears; and that 2nd defendant in this suit purchased the property at the revenue auction. The plaintiff now seeks to recover the property. His contention is that the 2nd defendant is a benamidar for Nalluri Samiah, the 19th defendant in the first suit, and that, as it wis the duty of the said Samiah to have paid the arrears, he must be deemed to have committed a fraud in allowing the property to be sold and in purchasing it in the name of the 2nd defendant for ' his own benefit. In effect the contention 'is that the 2nd defendant is a trustee for the plaintiff. It was contended by Mr. Krishnasami Aiyar that there is no legal evidence on which the finding as to the 2nd defendant being a name lender to Samiah can be sustained. The Munsif refers to oral evidence relating to possession and to other circumstances in support of his finding : the Lower Appellate Court has confirmed that finding : we are unable to say that there is no legal evidence to support it. But granting that the 2nd defendant is a benamidar for Nalluri Samiah, it has to be proved that Samiah was under any legal obligation to pay the arrears of revenue due upon the lands. Prima facie, as we said before, the finding of the District Munsif in the mortgage suit negatives any subsisting right in the Sarasvati people from whom Samiah derived title at the time of the revenue sale. But as the point has been raised for the first time in this Court, we think it safe to call for a finding on the question.
Whether at the time of the purchase by the 2nd defendant at the revenue sale, the 19th defendant or the Sarasvati people from whom he claimed had such a subsisting interest in the property as made it obligatory on them to pay the revenue for nonpayment of which the property was sold?' This question does not refer to the initial liability to pay the revenue by virtue of the patta standing in the name of any of the parties, but to the question whether as between the plaintiff, the Vavilla people and the Sarasvati people inter se who was bound to protect the property from the revenue sale.
2. Both parties may adduce fresh evidence. The finding should be submitted within two months and seven days will be allowed for filing objections.
3. [In compliance with the order contained in the above judgment, the District Judge of Nellore submitted the following
FINDING : * * * * The plaintiff as I have said wanted to show that the mortgage in his favour was prior to the sale to Saraswati people. He urges that all that the Saraswati people got was the equity of redemption and Nalluri Samiah stands in their shoes and under Section 90 of the Indian Trusts Act, he was bound to pay the assessment. I think the plaintiff has not proved the facts on which he relies. Even if be had proved them, it would not advance his case, for Srinivasachari v. Gnanaprakasa Mudaliar I.L.R. (1906) M. 67, is an authority for the position that there is no obligation on the purchaser of the equity of redemption to pay the public charges accruing due in respect of what he has purchased. It has been argued that the circumstances of that case were different, bat the principle is the same and the case seems to me quite applicable. It is further argued that if that be the law, it was unnecessary to remand this appeal but that argument here is for obvious reasons futile.
4. How the Sarasvati people originally came by the land seems to me still doubtful but it is perfectly clear that they were in possession and from them Bandepalli Venkatachelam got the land and from him Nalluri Samiah. It may be taken they were trespassers.
5. My finding on the issue sent down to me is that at the time of the purchase by the 2nd defendant at the revenue sale the 19th defandant or the Sarasvati people had no such subsisting interest in the property as made it obligatory on them to pay the revenue for non-payment of which the property was sold.]