1. This second appeal arises out of a suit filed by the Maharaja of Pittapuram against the Secretary of State for India in Council as the 1st defendant, and Avasarala Venkatarama Row of Panduru as the 2nd defendant, for separate registration of the lands situated in the village of Panduru alleged to be within the zemindari of Pittapuram. Prior to the suit, the plaintiff applied to the Deputy Collector under the provisions of Madras Act I of 1876 for such separate registration. The 2nd defendant having raised an objection, the Deputy Collector declined to order separate registration, with the result that the Maharaja of Pittapuram filed the suit from which this second appeal has arisen.
2. The main pleas raised by the 2nd defendant were (1) that there was no 'alienation' in the present case within the meaning of Act I of 1876, and (2) that, on the merits, the plaintiff was not entitled to separate registration since these lands were not included within the assets of the zemindari at the time of the Permanent Settlement. Both the Lower Courts overruled the first contention raised by the 2nd defendant and held that, if on the merits the plaintiff proved that the suit lands were included within the assets of the zemindari, the plaintiff would be entitled to have separate registration as prayed for. On the merits the Trial Court found against the plaintiff and accordingly dismissed the suit. On the plaintiff's appeal, the learned Subordinate Judge held, for reasons given in para graph 10 of his judgment, that the suit lands must be taken to have been included in the assets of the zemindari, and he passed a decree for separate registration as prayed by the plaintiff. This second appeal has accordingly been preferred by the 2nd defendant in the case.
3. On his behalf, his learned Advocate argued two points, one relating to the preliminary question whether Act I of 1876 applies to this case and the other to the merits. Taking the first question about the applicability of the provisions of Act: I of 1876, it was argued for the appellant that the Act deals only with cases of lands 'alienated by sale or otherwise'. It being common ground that the Maharaja is not able to point out to any particular act of alienation inter vivos the finding of the Lower Appellate Court was that the 2nd defendant has acquired ownership of this property by virtue of adverse pos-session for over the statutory period. The learned. Advocate argued that such a case could not be said to come within Act 1 of 1876. He argued that the words 'alienation by sale or otherwise' imply cases of transfer inter vivos. On behalf of the respondent it was argued that the word 'alienation' is wider than the word 'transfer' and that all that the Act contemplates. is that there should be a separation from the main estate of the land in question in such a way that the ownership of the land in question becomes vested in the other person as owner. We think that the contention raised by the respondent should be upheld. It must be noticed that the wording in question occurs in an Act passed as early as 1876, and that the exact question that we are now called upon to decide has come before this Court, at least twice, as reported cases show. In Pusarla Peda Brahmaji v. Krishnamachariar (1919) 11 L.W. 389 Oldfield and Krishnan, JJ., decided this very point against the contention raised by the appellant before us. Later on, in the case reported in Subba Rao v. Rajah of Pithapur (1926) 53 M.L.J. 400 the same question arose before Waller and Madhavan Nair, JJ., and the learned Judges, as we understand their judgment, followed the decision in Pusarla Peda Brahmaji v. Krishnamachariar (1919) 11 L.W. 389 and were not prepared to have the question re-opened. If the learned Judges in Subba Rao v. Rajah of Pithapur (1926) 53 M.L.J. 400 doubted the correctness of the decision in Pusarla Peda Brahmaji v. Krishnamachariar (1919) 11 L.W. 389 they would not have sent the case back for enquiry on the merits (which would have been unnecessary if the appellant's contention was right). In addition to the two direct decisions on the point in question, there is also an observation in Proprietor of Siripuram Estates v. V enkatasurya Rao (1922) 17 L.W. 6 where it is stated that all that was necessary to bring a case under Madras Act I of 1876 is that the land in question should be fully owned by a person other than the Zamindar Proprietor. Though the preamble to the Act speaks of 'alienation of portions of permanently settled estates by sale or otherwise' when we go to Section 2, which speaks of the exact nature of the enquiry to be conducted by the Collector, we find the following words:
The Collector shall thereupon hold an enquiry as to who is the present owner of the property in respect of which the application is made.
4. A person could become owner of property as much by transfer inter vivos as by the effect of adverse possession for the statutory period. As mentioned by this Court in Sambasiva v. Raghava I.L.R. (1890) M. 512.
It is hardly necessary to observe that it has been repeatedly held that the title acquired by adverse possession for twelve years is only equivalent to that given by a parliamentary grant of the interest vesting in the party affected by the adverse possession.
5. We may also refer to a recent decision of the Privy Council in the case reported in Sreemati Krishna Promada Dasi v. Dhirendra Nath Ghosh . No doubt the Privy Council had there to consider a case that arose in Bengal. This is what their Lordships say:
The owner of a part of a revenue-paying estate obtaining his title by adverse possession, remains liable for land revenue fixed on the estate under Section 37 of the Land Revenue Sales Act. He may, if he so desires, have the portion of the estate which passed to him by adverse possession, separately assessed to land revenue; but, if he omits to do so, it continues to form part of the security for the whole land revenue of the estate and to be liable to be sold under the regulation in respect of any arrears due.
(The italics are ours.)
6. From this it is clear that it is ordinarily open to any person who has become owner of land by virtue of adverse possession to apply to have separate registration of the same in his name to avoid the risk of the land being sold to recover arrears due, not properly upon it but upon the whole estate of which it was a part. It, therefore, seems to us that Act I of 1876 applies not only to cases of transfer inter vivos but also to cases where a person has became owner of property by virtue of adverse possession for the statutory period. We, therefore, follow the two rulings of this Court mentioned above, and overrule the contention raised by the appellant.
7. On the merits, we find that both the Lower Courts refer to D. C. B. accounts and Amarakam accounts as having been filed as evidence in the case. By reference, however, to the list of witnesses examined and documents filed, we are not able to find any such documents having been exhibited. It is possible since it is clear that these suits were tried along with other suits, that there was some sort of agreement between the parties that these documents should be taken as exhibited and treated as evidence in these cases also, but as the record now stands, we are not able to state definitely what exactly happened. As we should like to know more about these documents before we dispose of these appeals, we call upon the Lower Court to procure and forward to this Court copies of Amarakam and D.C.B. accounts referred to in the Lower Court's judgment. It will also submit a copy of the judgment in O.S. No. 29 of 1923 with all the records, including the B. Diary filed in that suit. It will be open to either party to apply for the printing of any portion of the record so received, leaving it to the Court to decide upon any matters regarding the admissibility of the same in evidence in these second appeals at the time of the final hearing in these cases.
8. Second Appeal No. 823 of 1925.--This case follows our judgment in S.A. No. 821 of 1925. K.C.
[The final judgment in the case will be reported if it contains any decision on any question of law.--ED.]ss