1. This is an appeal from a decree giving the plaintiff, the Zemindar of Pittapur, a declaration that the suit lands are his jeroyiti lands and not the inam lands of the 1st defendant. The 1st defendant had inam lands in this village and the inam register Exhibit P, shows that his family had an extent of about 5 acres of land of which he had parted with 3 acres leaving him entitled to about 2 acres. The next thing that we know is that in 1891 he took jeroyiti lands from the Zemindar under two pattas numbered as 65 and 92 and he retained the lands under these pattas until 1898 when here linquished them under Exhibits B and B1 and they were forthwith applied for by the 2nd defendant under Exhibit C and C1 and werere-granted to him under Exhibit E. These Exhibits show that what was granted to the 1st defendant under patta No. 65 was kh. 5-5-0 or about 42 acres and under patta 92 kh. 1-19 or about 16 acres, i.e., 58 acres in all. It is very remarkable that immediately after this we find the 1st defendant under a 'document on which Mr. Prakasam has relied purporting to mortgage inam lands of 24 acres. As we have said the whole family inam of the 1st defendant was only 5 acres, of which he retained only 2 acres. How that swelled to 24 acres in 1891 is not explained : and this, far from helping the defendant's case lends' support to the plaintiff's case that the 1st defendant had entered on an ingenious scheme of transferring or getting the jeroyiti lands which he had taken from the Zemindar in that village, converted into inam lands and treating them as if they were held under his inam grant.
2. Then we come to what has been called the water rate government survey in 1895 when the Government directed a survey with the view of fixing what was the proper amount due for what is known as mamool wet. In that survey, the 1st defendant's inams are Nos. 306 and 334 and we find that the result of that survey was that survey No. 306 increased in area from 1-25 to n-20 and old survey No. 334 increased from 70 cents to 29-48. For this increase no plausible explanation has been suggested and the only inference seems to be that this was the result of some machination on the part of the 1st defendant, as we have said, to convert part of the zemindari lands into his own inam lands, and that this was his object is also the inference arising from what happened later. He purported in 1898 under the documents which we have already mentioned to relinquish these lands to the Zemindar and, as part of the same arrangement, the 2nd defendant took them, but there is some evidence that the 1st defendant continued to cultivate the land. Be that as it may, whether the 1st defendant or the 2nd defendant cultivated them we find that all along they have been paying, under their pattahs 65 and 92, the cist reserved by these pattahs although under pattah No. 65 the result of the survey was to show that it included only 13-35 acres and although under pattah No. 92 only 2 acres and 20 cents are now traced. See Exhibit G. Part of the land which is mentioned in Exhibit G has not been traceable at all. Exhibit G is a pattah of the year 1910 and it would have been more satisfactory if we had the pattah for the year 1898 or earlier. We think that the inference arising is that there was an increase in the 1st defendant's inam for which there is no satisfactory explanation at all and the inference is irresistible that it must :have been brought about by the 1st defendant taking advantage of the fact that in 1891 he became the tenant of the Zemindar's jeroyiti lands in the village under his pattahs 65 and 92. Mr. Prakasam has referred us to Exhibit 15-C which is pattah No. 48 of 1914 to which he sought to trace some of the lands which are missing from other pattahs: but we are not satisfied that they have been traced. And here again it would' be exceedingly important to have not the pattah of the year 1914 but the patta of 1898 or earlier.
3. On the whole we see no reason to differ from the conclusion of the Subordinate Judge that there has been a wrongful transfer by the 1st defendant of the jeroyiti lands held by him in the Zemindari to his inam lands in the same village. The Subordinate Judge has given the plaintiff a declaratory decree for the whole extent of the lands claimed by him and it is admitted that he has failed to make any allowance to the extent of the inam lands in the village which the 1st defendant undoubtely is entitled to. The question then is what is the inam area to which he should be held entitled. As we have said the whole area of his family inam was shown in the inam register Exhibit P as about 5 acres of which he retained 2 acres. There is some evidence given by the karnam that his family was cultivating for a long time 13 acres and it is of course possible that there has been some encroachment for some time. On the whole, we have come to the conclusion that, making a liberal allowance in favour of the 1st defendant, the plaintiff is entitled to a declaration that Survey No. 29S consisting of 29-48 constitutes his jeroyiti lands.
4.Objection was taken by Mr. Prakasam that the boundaries are conclusive under Section 12, Sub-section 3 of the Survey Act. We were at first considerably impressed by that objection. We see however, that the full Bench in Muthirulandi Poosari v. Sethurama Iyer I.L.R. (1910) M. 425, limited themselves to deciding that the decision by the Survey Officer in the boundary cases was conclusive under Section 13 only where there has been a dispute and they said nothing about the effect of the word 'final' in Section 12 sub-Ss. 3. Sections 11 and 12 deal also with cases where there is no dispute at all about the boundaries and cases where the registered owners do not take the trouble to go and point it out, and those sections direct that, in such cases, t- where there is no dispute, the Survey Officer is to fix the boundary as pointed out and where parties do not attend he is to fix the boundaries as best as he may from the records and his order fixing the boundaries is to be notified to the parties interested, and they have a fight of appeal, and if they do not appeal or if the appeal is decided against them then the original order or the order in appeal is to be final under Section 12 Sub-section 3.On a further consideration of the matter, we think that sufficient effect is given to that provision by holding it to mean that there can be no further dispute about that boundary, that is, the boundary that has to go into the survey. But it seems to be going too far to say that that boundary is to be binding for all purposes so that it cannot be questioned by either of the parties. In the present case it looks as if there had been a carelessness at least on the part of the Zemindar's agents.
5. It would be hard that a boundary of that sort should be made conclusive upon a party who neglected to attend and whose neglect had been taken advantage of by the other side to point out the wrong boundaries. But however that may be, we think that it is sufficient to hold that the effect of Section 12 Sub-section 3 is to make the boundary final but that it does not go so far as to preclude the land-owners altogether from afterwards disputing the correctness of the boundary in a court of law. That also seems to have been the view taken in some of the unreported cases to which we have been referred.
6. Another question was raised by Mr. Prakasam who appears for defendants 3 to 5 who are mortgagees from the 1st defendant as to their mortgage. We are not concerned to decide anything in this case about their rights against the mortgagor, the 1st defendant, and those claiming through or under him.
7. The appeal in part must be allowed and the decree modified accordingly. The appellants must pay the costs of the plaintiff - 3rd respondent.