Sadasiva Aiyar, J.
1. The plaintiff is the appellant. Plaintiff owns a warg land marked 17/27 in the plan Ex. C as the reversionary heir of the husband of one Devamma. Devamma granted a usufructuary mortgage Ex. A in 1890, not only of the warg lands 17/27, but also of plaint item (1) which was the slope of a hill adjoining the warg land. Item (1) is marked A, A 1 and B in the plan. It is well known that in South Kanara, warg lands have what are called kumaki rights over 41 certain extent of adjoining waste land. Hence Devamma usufructuarily mortgaged in 1890 both her warg lands and the plaint item (1) in dispute and put her mortgagee in possession and the said mortgagee and his successors in title including the 1st defendant have been in possession of item (1) along with the warg land all along from 1890.
2. In the settlement of 1902, pattah was issued for the warg lands alone, item (1) being classed as waste poramboke.
3. The plaintiff who owned the equity of redemption in the lands usufructuarily mortgaged, took advantage of the fact that item (1), a portion of the lands, belonged to the Government and was at its absolute disposal (though under the dharkast rules the Revenue Officers charged with the duty of granting lands on darkast were directed to prefer the neighbouring wargdars), applied for the darkast grant of item (2) in 1910 and obtalned a grant of it to himself in March 1911. (See Exhibit B). The plaintiff thereupon brought, this suit against the mortgagee the 1st defendant (who died after suit and whose legal representat.ves are the defendants 2 to 5) for possession of the plaint item (1) on the strength of his title under the above darkast grant. The plaintiff cleverly omitted in his plaint all mention of the fact that his predecessor-in-title (Devamma) had usufructuarily mortgaged the plaint item (1) also in 1890 to the 1st defendant's predecessors- in-title and that the 1st defendant and his predecessors-in-title had been in possession of plaint item (1) along with other lands as usufructuary mortgagees from 1890. On the other hand, he told a falsehood in the plaint that the defendants trespassed upon the Government land item (1) only in December 1910, that he was in possession of it before and that he was granted the land by Government, while he was so in possession of it on behalf of a stanom. The plaintiff also sued for recovery of plaint item (2) (ridge bunds on which trees stand and called Kattupannis) alleging that the defendants unlawfully trespassed at the same time (in December 1910) on these Kattupanni Lands also. The real truth was that these kattupannis were also included in the mortgage of 1890 (except the portion marked XY in the plan) and have all along been in the possession of the mortgagee and his successors- in-title. The District Munsif gave a decree to the plaintiff for the portion XY of the Kattupannis (to which the defendants laid no claim) and dismissed the plaintiff's suit in other respects on the ground that the plaintiff in order to evade his liability to give compensation for the house built on item No. (1) by the 1st defendant (which plaintiff would have to do if the plaintiff sued to redeem item (1) and the warg land and the Kattupannis except on the mortgage of 1890) has brought this suit in ejectment as regards items (1) and (2) alone, excluding the warg land, making the false allegation of trespass in December 1890 as regards the items 1 and 2. The Subordinate Judge on appeal confirmed the Lower Court's decree.
4. Nothing was alleged by Mr. B. Sitarama Row for the appellant (plaintiff) which could induce us to differ from the concurrent findings of fact by. the Lower Courts. He however strongly relied upon the question of law, namely, that item (1) being merely a kumaki land attached to the warg land, the Government was entitled to ignore the mortgage made in 1890 by the wargdar so far as regards the kumaki land, that it was entitled to grant, the kumaki land to whomsoever it pleased, that the plaintiff as such grantee acquired a title to it as owner against the 1st defendant (the usufructuary mortgagee under the wargdar) and that the 1st defendant was not entitled to rely, upon the right of possession granted by the wargdar (under the mortgage) of the kumaki land as against the right of possession granted by the Government (under the darkast proceedings) to the plaintiff. Having regard to the decision in Hattikudur Naraina Rao v. Audar Syad Abbar Sahib : AIR1915Mad1085 approved in Swaminatha Mudali v. Saravana Mudali : AIR1918Mad383 and to the rights of the Government in waste lands in South Kanara as settled by the Pull Bench decision in The Secretary of State for India in Council v. M. Krishnayya I.L.R. (1905) M. 257 I do not see my way to get round the above contention of Mr. Sitarama Row. The lower appellate court relied on the fact that the 1st defendant and his predecessors had been enjoying the land item (1) as mortgagees for more than 12 years, that is, between 1890 and 1914, when this suit was brought. But such enjoyment cannot confer any adverse title on the mortgagees as against the Government and when the Government exercised the paramount right in 1911, the plaintiff got a clean title. The District Munsif relied on Section 43 of the Transfer of Property Act but Section 43 has been treated as a branch of law of estoppel. (See Pandiri Banga-ram v. Karumoory Subbaraju I.L.R. (1910) M. 169 and Jadu Bans Upadhya v. Shasjit Singh (1911) 10 I.C 443 and Rashmoni Dasi v. Suria Kanta Roy Chowdhury I.L.R. (1905) C. 832. No proof of any erroneous representation by the mortgagor at the time of Exhibit A (the mortgage of 1890) or of the mortgagees having acted on any such representation to his detriment has been proved and I cannot agree with the District Munsif that by reason of Section 43 of the Transfer of Property Act, the mortgage of 1890 operated on the interest which the plaintiff acquired by this darkast grant of 1911. The respondent's learned Vakil Mr. Balakrishna Bow attempted to support the decision of the Lower Courts on a ground not put forward in the judgments of the Lower Courts, namely, that under Section 70 of the Transfer of Property Act, any accession to the mortgaged property becomes part of the security and that the plaint item (1) should be treated as such an accession to the mortgaged warg land. Having regard to the illustrations to Section 70 of the Transfer of Property Act, I am unable to hold that the kumaki land at the absolute disposal of the Government and granted by them to the owner of the equity of redemption of the neighboring warg land can be treated as an accession to the said warg land. Mr. Balakrishna Row relied also upon Section 90 of the Trusts Act but the provisions of that section apply to tenants for life, co-owners, mortgagees and similar persons who avail themselves of their position to obtain benefits for themselves ' in derogation of the rights of other persons interested 'or 'as representing all persons interested.' Here it was the mortgagor who obtained the grant of the neighboring waste land from the Government and not the mortgagee and there is nothing to show that he obtained it as representing all persons interested in the mortgaged property.
5. In the result, I have reluctantly come to the conclusion that the decisions of the Lower Courts must be modified by giving judgment for the plaintiff for item (1) also, the defendants being allowed 6 months time to remove the improvements made by them on that land. This is not a case for allowing any costs at all to the plaintiff who made dishonest suppressions and false allegations in his plaint as regards both item 1 and item 2 and as he has failed in respect of the greater part of item (2) in all the Courts, I would direct the plaintiff to bear his own costs throughout and pay out half of defendant's costs throughout.
6. I agree.