1. The plaint averred that the land in suit was obtained on patta practically without the knowledge and assent of the Collector and contrary to the orders of Government; and it was hinted that the pattas were obtained owing to the powerful influence of the late Maniakar of Todanad. What is meant by this suggestion is not clear.
2. There is absolutely no proof that the pattas were procured by fraud, and there is nothing to show that the Commissioner was so careless in the discharge of his duties that he authorized the issue of the pattas without satisfying himself by inquiry that the lands were such as in his judgment could be disposed of by patta.
3. Although this suit has been pending since 14th April 1880, the appellant's counsel is not even now in a position to say that there is anything more than surmise to support the averment that the late Commissioner acted without full knowledge of the nature of the land with which he was dealing.
4. The learned Government Pleader is unable to point out any special orders of the Government prohibiting the grant of the land in suit or any general order precisely forbidding the grant of particular shola lands on patta.
5. The matter has been left to the discretion of the Commissioner. All that appears is that the Commissioner has possibly in this instance exercised that discretion in a manner which is opposed to the wishes of Government as indicated by the spirit of their orders. The ground on which the suit was brought failed. In appeal a new ground is taken that a raiyatwar patta enures only for a year. This ground was not urged in the plaint nor at the hearing in the Court of First Instance, and, therefore, we cannot entertain it. It is based on the decision of this Court in Fakir Muhammed v. Tirumalachariar I.L.R. 1 Mad. 205. But we see strong reason to doubt whether the view of the majority of the Court in that case was right, and, when an occasion arises, we should propose that the ruling be reconsidered by the Full Bench.
6. The appeal is dismissed with costs.