1. The subject-matter of this appeal is a portion of Survey No. 1973 in the village of Kagam. The appellants-claim that the whole of the survey number and therefore the portion now in dispute belongs to them as part of their inam. The contesting respondents on the other hand contend that the property in dispute is jeroyiti property of the Vizianagaram estate. The suit was one for rent based upon the assertion that the rent was leviable from the jeroyiti property. The suit has. been dismissed by the Sub-Collector and has been decreed in part by the learned District Judge of Vizagapatam. The learned District Judge holds that in respect of a part of the land no-decree can be given to the plaintiffs because there is a survey decision against them establishing the title of the defendants to the property. On the other hand he has held that the survey decision does not extend to the remainder of the field and that although the defendants have been in possession of this part of the field for 30 years or more they have been unable to prove any title by adverse possession. He states that the contesting respondents, that is to say the present appellants, at no time more than 12 years before the filing of the suit had openly asserted their inam title to this portion of Survey No. 197|3 adversely to the Raja's melvaram right. This is no doubt in one respect a finding of fact but it seems to me that the question whether certain admitted facts constitute an open assertion of title is a question of law and in this case the learned District Judge is clearly wrong in holding that there has been no open assertion of title.. I have been referred to the pleadings in two previous suits, one in 1911 and the other in 1917. In the first, the present 1st appellant was the 3rd defendant and the Vizianagaram estate was the 1st defendant. The assertion which is contained in the, written statement filed in common by the 3rd defendant and the other defendants was to the effect that the suit lands were not the jeroyiti lands of the 1st defendant but the inam lands of the other defendants. In the suit in 1917 the Vizianagaram estate was the plaintiff and the present 1st appellant was the 1st defendant. It was a suit for rent and the 1st defendant in common with the other defendants contended that the suit lands were their inam lands. It is conceded by the learned advocate for the respondents here that the subject-matter of both these suits in 1911 and 1917 is identical with the subject-matter of the present suit. It is conceded also that whatever other differences there may be in the array of, parties in those suits, the present 1st appellant was himself a party in both of them and that the written statement to which reference has been made was his written statement. It is quite clear from these facts that the subject-matter of the present suit has been asserted by the present 1st appellant in both 1,911 and 1917 to belong to him. There can be no clearer instance of an open assertion of title made publicly in regularly constituted suits in which the title to the property in question was definitely in issue.
2. The learned District Judge proceeds further to argue that even if adverse title had been made out for a period of 30 or 40 years it would be insufficient to protect the present appellants against the suit of the estate as where there is an inam right to any land no adverse title can be perfected by a period of less than 60 years. The argument is that wherever an inamdar claims title to land that title necessarily involves certain rights in Government to resume the inam. No doubt this fact is true, but it is quite clear that it can be applied only to suits between the Government and the inamdar. If it is a question of whether an inamdar has established a title adversely to the Government, then of course the question will be whether his adverse possession has extended to 60 years or more. But where the only question is whether an inamdar has established his title adversely to a Zamindar the question of Government's rights cannot possibly come up for any kind of consideration. The ordinary rule will therefore apply which prescribes a period of only 12 years for the perfecting of title by adverse possession. The result is that the present appellants are entitled to a declaration that they are now entitled as inamdars to the land in question and therefore that no rent can be levied from them. This appeal must therefore be allowed and the suit filed by the estate be dismissed with costs throughout.
3. Leave refused.