1. The plaintiff is the appellant. He is the Rajah of Pittapuram. The suit is filed in accordance with the provisions of Section 13 of the Madras Survey and Boundaries Act (VIII of 1923). The subject-matter of the suit was 48 cents of land lying on the boundary between the village of Madupalli which is a Government village and Vanapalli which belongs to the plaintiff. At the recent survey completed in 1928 this 48 cents was surveyed in the Ayan Government village Madupalli being included in Survey No. 21 of that village. The Zamindar filed a claim before the Survey Officer and the Survey Officer decided the dispute in favour of the Government. The grounds on which the decision was based have not been exhibited in the Courts below. We have only the decision of the Survey authority to whom the Zamindar appealed. That order contains no details but simply is that 'the order of the lower Court is confirmed'.
2. The only point I think which arises for consideration in this second appeal is whether the lower appellate Court was wrong in ignoring the effect of the successive surveys which have been made by the Government. From 1890 to 1906 this Pittapuram Zamindari was in charge of the Court of Wards. In 1893-94 a survey of the adjacent Government villages was made, that is to say, a survey of the villages of the taluk of Amalapurarn and in that survey, this 48 cents was included in the Ayan village of Madupalli. In 1902, and following years, presumably at the instance of the Court of Wards, the Zamindari villages were surveyed. See G.O. No. 67, Rev., dated 15th of January, 1902. And as a result of that survey the 48 cents was included in the Zamindari village of Vanapalli. Then lastly as I have already said at the re-survey of the Ayan villages in 1928, the 48 cents was surveyed along with the village of Madupalli. In my view the Government whose officer in 1902 or thereabouts laid down the boundaries of the Zamin village under the Survey and Boundaries Act of 1897 then in force is not entitled except on the ground of change of ownership at a later survey to alter that boundary. It is stated, and I believe it to be true that at the 1904 survey of Vanapalli there was no dispute about the boundary in question. Everybody thought that the 48 cents was part of the Vanapalli village. The Survey Officer must have had the survey plan of the adjacent village of Madupalli with him at the time he laid down the common boundary between the two villages. In fact it must have been part of his duty to reconcile the boundary as shown in the Government village plan with the boundary claimed on behalf of the Zamindar. The 48 cents therefore must have been claimed on behalf of the Zamindar and the claim cannot have been opposed on behalf of the Government. If it had been and if the Government had been successful the 48 cents now in dispute would not have been included within the boundary of Vanapalli. Section 11(1) of the Survey and Boundaries Act of 1897 is as follows:
If, at the time of survey, a boundary is undisputed, the Survey Officer may order that it shall be laid down as pointed out by the registered holder or his agent
and Sub-section 2 leaving out unnecessary words is:
If the registered holder is not present, the Survey Officer shall order it to be laid down as nearly as may be, in accordance with the village records or as ascertained from the village officers and from such other evidence as the Survey Officer may be able to procure.
3. Then Sub-section 4 is:
When the survey of any village has been completed in accordance with the orders passed under Sub-section 1 and 2, the Survey Officer shall notify the fact as soon as practicable thereafter.
4. Section 12, Sub-section (1) is:
Notice of every order passed by the Survey Officer under Section 11 shall be given to all registered holders the boundaries of whose holdings may be affected by the order
and Sub-section 3 of Section 12 is:
The order of the Survey Officer shall be final.
5. The survey of the estate is subject to these rules and these rules have statutory force. See Section 18 which is as follows:
Except as hereinafter provided in Sections 19 and 20, the conduct of such survey and the proceedings of a survey officer shall, as far as may be, be regulated by the procedure laid down in Chapter II with regard to the survey of Government lands.
6. Chapter II is the Chapter which contains Sections 11 and 12 the purport of which I have just set out.
7. If the survey had been completed in 1904 or thereabouts and no dispute had been raised by the Government as to the boundary as laid down by its own officer and laid down at the instance of the Court of Wards which is a statutory body deriving its authority from the Government, the Zamindar, in my opinion, was entitled to believe that these 48 cents belonged to him. I might add that not only did the Government not dispute that survey but no objection was raised by any person coming forward as a ryotwari owner of the land directly under the Government. That being the position of affairs then when the new survey of the Government village was made in 1925 and the following years, the Survey Officer, in my opinion, was bound to adhere to the boundary laid down in 1904 when Vanapalli was surveyed. Again I observe that in these disputes no ryotwari owner claiming under the Government has been impleaded and no occupancy tenant claiming under the Zamindar has been impleaded. This dispute is entirely between the Zamindar and Government. The plaintiff, in my opinion, was entitled to succeed on this ground alone and the second appeal by him is therefore allowed with costs both here and in the lower appellate Court. The order giving him costs in the trial Court is restored.
7. Leave to appeal being asked for is granted.