1. This appeal has been referred to me because of a difference of opinion between the learned Judges of the Bench who heard it. The suit is one of ejectment', the plaintiff claiming to be the Government mirasi karnam of Laveru Village within the ambit of Vizianagram estate. This appeal is concerned with his plaint prayer to eject the defendants from a land Survey No. 339 on the ground that he is the mirasi Inamdar. The 1st defendant is the Zamindar and claims the melwaram right over the land, the other defendants claim to be the kudivaram tenants thereof.
2. The village was surveyed by Government in 1904 in the course of the survey of the Vizianagram estate under Act IV of 1897 and the suit land was then demarcated by the Survey Officer as mirasi Inam. Against this decision the 1st defendant's representative presented under Section 12 an appeal that the land should have been classed as jeroyati. That appeal was thrown out. The estate did not file any suit under Section 13 to have that decision set aside. Under that section of the Act the decision therefore became conclusive between the parties to the dispute as regards all matters in dispute. The main point contested throughout in this case has been whether the decision of the Survey Officer precludes the defendants from resisting the plaintiff's claim. It was decided by the Trial Court and that decision has not been since contested that the order of the Survey Officer does not bind the tenant defendants 2 to 12 as they were not parties to the appeal before the Survey Officer. As regards the 1st defendant, the Zamindar, both the Lower Courts held that he was precluded by the decision of the Survey Officer from resisting the plaintiff's claim and they therefore gave a decree that the plaintiff was entitled to the melwaram right over Survey No. 339. In second appeal Mr. Justice Spencer held that the Survey Officer's decision was without jurisdiction and therefore void, and on the ground that the plaintiff had not independently established his title he dismissed the plaintiff's suit. At the Letters Patent Appeal the learned Judges differed on this main point and it is the chief question which I have to decide.
3. One would imagine that as it is the point on which the case really turned all available records in the survey proceeding would have been produced and exhibited. So far from that being so, the original proceedings of the Survey Officer are not filed nor is the entry in the Survey Register. We have only, the decision on appeal, Exhibit G, the grounds of that decision, Exhibit XXIII and the appeal petition of the Zamindar, Exhibit XXIII-A, and these are by no means consistent. For example, Exhibit XXIII-A does not show that Government was a party to the enquiry, while Exhibit XXIII says that Government was a party. Again Exhibit XXIII-A says that the original decision was that the land was 'subsequent,' that is, post-settlement service Inam, while Exhibit XXIII says the original decision was that it was a mirasi Inam by which the Survey Officer on appeal, as he states clearly in his grounds, means Government service Inam, that is, pre-settlement Inam. It seems to be now admitted by the plaintiff that the Inam was really post-settlement but that error of fact on the part of the Survey Officer cannot affect the validity of his decision if he had jurisdiction to pass it.
4. The 1st defendant claims that the order is without jurisdiction because there was no 'boundary dispute' within the meaning of the Act. One would expect that, if there was at the time of the survey inquiry any substance in this contention, it would have been put in the forefront of the 1st defendant's appeal, Exhibit XXIII-A, but there is no suggestion of it there. The contention is advanced on two grounds: first, that the dispute was really whether the land was jeroyati or darmilla Inam, that is, there was no decision that it did not form part of the estate, and secondly, even if the dispute was whether it was Jeroyati or pre-settlement Inam, still that is not a dispute about a boundary and therefore there is no boundary dispute. The first contention is based entirely on the wording of Exhibit XXIII-A which, as I have said, is inconsistent with the statements in Exhibit XXIII. I see no reason why, if I am to make speculations, I should speculate that Exhibit XXIII-A is right and Exhibit XXIII wrong. The 1st defendant could have made the matter quite clear by producing the original registry entry, but though it is now 15 years since the plaint was filed he has not so far done so. I must presume that the official act of the Survey Officer was regularly performed and with jurisdiction, that is, that the dispute was whether the land was to be demarcated within or outside of the estate, i.e., Zamin Jeroyati or Government service Inam. As to the second contention I find it a little difficult to follow. I understand the argument to be that there cannot be a boundary dispute unless there is a dispute between two estates or between Government and an' estate regarding the physical boundary of some piece of land contiguous to both, that is, a dispute as to when, where and how the boundary between both shall run, but that if the dispute involves on one side or the other the whole of the contestant's property there cannot be any boundary dispute, because the boundary of the disputed portion is not itself in dispute. I can see no principle in such a contention. What the Survey Officer had to decide and had jurisdiction to decide was how the boundary of the Vizianagram estate was to run, whether it should exclude or include the suit Inam, and his decision was that the Inam being Government property must be excluded from the estate, demarcated out of the estate. It does not seem to me that such a dispute cannot properly be called a boundary dispute or that it is not one of the kind of disputes with which the Act was enacted to deal. Obviously the boundary of the estate cannot be properly demarcated unless controversies of this kind are settled.
5. If we examine the important rulings of this High Court under this Survey Act and its predecessor, we find that this is just the sort of case that has arisen and has been held to come under the Act. In the Full Bench case in Kamaraju v. The Secretary of State for India I.L.R. (1888) 11 Mad. 309 a Survey Officer had demarcated out of the Bodinaikanoor estate a tract of land which Government claimed to be reserved forest. There could be here no suggestion that the tract of land constituted the whole of the Bodinaikanoor estate or the whole of the Government land. Nor was there any suggestion that there was any dispute as to the physical boundaries of the tract itself. The question was merely whether the tract was to be demarcated within the estate or outside the estate as Government land. The Full Bench held that this was a boundary dispute under the previous Act, XXVIII of 1860, and that the decision was res judicata, and the Zamindar was estopped from claiming the tract as part of his estate. The ruling in Muthammal v. The Secretary of State for India I.L.R. (1914) 39 Mad. 1202 : 27 M.L.J. 529 is a decision of three Judges in a Letters Patent Appeal in a similar case also trader Act XXVIII of 1860, The dispute there was whether a perfectly definite tract of land was part of a mitta or Government reserved forest. The finding was that the Survey Officer's decision that the land did not form the part of the mitta is res judicata. In the Full Bench case in Muthirulandi Poosari v. Sethuram Aiyar I.L.R. (1919) 42 Mad. 425 : 36 M.L.J. 356 it does not seem to have been even argued before the Full Bench that the dispute before the Survey Officer as the possession of a perfectly definite piece of land, a lane, was not a boundary dispute within the meaning of Act IV of 1897. The only attack the 1st defendant is able to make on these decisions is that the first two were passed under the prior Act, XXVIII of 1860, and that the learned Judges made a wrong use of the words res judicata'. As to the first point Section 25 of the Act of 1860 under which the decisions were passed lays down practically the same procedure and the same principles, stated in fact in much less emphatic terms, as Sections 11 to 13 of the later Act. The scope of the inquiry under Act XXVIII of 1860 has been clearly stated in a Bench decision of this Court, Kirukan v. Alagappa Chetty (1920) 13 L.W. 172. As to the second point it is argued that the Privy Council in a passage in Radhakrishna Ayyar v. Sundaraswamier , which had nothing to do with a controversy like the present, pointed out the legal distinction between res judicata and statutory prohibition. I cannot see how that decision can be of any assistance to the 1st defendant here; whether one calls the decision of the Survey Officer res judicata or not the 1st defendant is, by force of Section 13 of the Act, estopped from agitating anew the right which he there claimed and lost since it is conclusive against him because be did not file a suit within the time granted in order to have his right restored.
6. It is next contended that even taking it that the Survey Officer's decision is about a boundary dispute under the Act, it cannot preclude the 1st defendant from now contending that the Inam is not Government service Inam, because the Survey Officer had no jurisdiction to decide questions of title. That, is, if I understand the argument, while it is open to the Survey Officer to decide that the Inam was outside the estate he had no jurisdiction to decide that it was Government service Inam. This contention also I do not follow. A Survey Officer obviously has jurisdiction to decide anything which it was necessary to decide in order to come to his conclusion, and he obviously cannot avoid deciding question of title in such cases. If parties A and B are disputing whether a particular piece of land is part of the property of A or B and the Survey Officer decides that it is the property of A, he is deciding that it is not the property of B. If that is not his function, the Act would seem to be useless; and if B's civil rights were not interfered with by the Survey Officer's decision it would not have been necessary to declare that B is entitled to establish his right in a Civil Court within one year. The Full Bench decisions already quoted are clear authority for the proposition that such decisions of a Survey Officer in a boundary dispute are not limited to the mere abstract question of what are the physical boundaries in dispute but are decisions on matters of title and possession. Kamaraju v. The Secretary of State for India I.L.R. (1888) 11 Mad. 309 and Muthammal v. The Secretary of State for India I.L.R. (1914) 39 Mad. 1202 : 27 M.L.J. 529 lay down that his decision is a decision on title and conclusive. These decisions also implicitly and Muthirulandi Poosari v. Sethuram Aiyar I.L.R. (1919) 42 Mad. 425 : 36 M.L.J. 356 explicitly lay down that his decision on questions of possession also is conclusive. In all these cases it was held that the decision of a Survey Officer on all these points is res judicata and binding on the parties to the boundary dispute. Kirukan v. Alagappa Chetty (1920) 13 L.W. 172 is a Bench case directly on the finality of the Survey Officer's decision on a question of title, and Kuppuswanii Aiyar v. Venkataswami (1922) 16 L.W. 99 is a Bench decision directly holding the finality of the Survey Officer's decision on a question of possession, even when the decision was in fact wrong. The case of Muthirulandi Poosari v. Sethuram Aiyar I.L.R. (1919) 42 Mad. 425 : 36 M.L.J. 356 is particularly instructive on this point because it held that the decision of a Survey Officer is a decision that the successful party is in possession even though the unsuccessful party was really in possession, and that the decision estops the unsuccessful party from urging later on that he was in possession. The 1st defendant seeks to turn the edge of this decision by referring me to a Bench ruling of this Court in Azhagaperumal Pillai v. Rasa Pillai (1931) 62 M.L.J. 399 where the learned Judges say that they do not interpret the Full Bench decision as meaning that the Survey Officer's decision stops the running of possession of a party really in possession. The learned Judges of the Bench give no reasons for this opinion except to refer to an opinion of Ramesam, J., in Kuppuswami Aiyar v. Venkataswami (1922) 16 L.W. 99 which, if I may say so with the greatest respect, cannot quote the learned Judge correctly, because if he really meant that the possession of the defendants in that case was not interrupted by the decision of the Survey Officer, then he would have upheld the defendants' title by adverse possession. But on the contrary he agreed with the other learned Judge of the Bench in decreeing for the plaintiffs on the ground that the decision of the Survey Officer that the plaintiffs were in possession is binding on the defendants. I therefore agree with Waller, J., in his referring judgment in this case that the plain meaning of the Full Bench ruling is that the decision of the Survey Officer is conclusive on the question of possession. There is no real hardship done and there is nothing extraordinary in the decision of an executive officer having such an effect since the civil rights of the parties are not injured provided they sue, as in the Act they are directed to sue, within one year of the decision.
7. The 1st defendant relies on a ruling in Chinna Venkatrayudu v. Ramamurti I.L.R. (1920) 44 Mad. 340 : 40 M.L.J. 149 that the correctness of an order under Section 12 of the Act IV of 1897 may be disputed afterwards in a Court of law. That case is really against him. It clearly lays down that if the order was passed under Section 13 its correctness cannot be subsequently disputed. The order in the present case is under Section 13. I am quite clear therefore that the decision of the Survey Officer, expressed in Exs. G and XXIII, is binding on the 1st defendant and he is not at liberty now and here to canvass its correctness.
8. The Full Bench decision in Muthirulandi Poosari v. Sethuram Aiyar I.L.R. (1919) 42 Mad. 425 : 36 M.L.J. 356 settles his further contention based on adverse possession. The 1st defendant's possession was interrupted in 1905 on 31st July, 1905, by the decision of the Survey Officer. The suit was within 12 years of that date and therefore the 1st defendant has not prescribed by 12 years' continuous adverse possession before suit.
9. It may be mentioned incidentally that even if there were any substance in the 1st defendant's contention that the original dispute was as to whether the land was jeroyati or darmilla Inam, the case in Chinna Venkatrayudu v. Ramamurti I.L.R. (1920) 44 Mad. 340 : 40 M.L.J. 149 is authority for the proposition that even so it would be a boundary dispute within the Act and the decision is therefore final. This also receives support from the judgment of Sadasiva Aiyar, J., in Kirukan v. Alagappa Chetty (1920) 13 L.W. 172.
10. I therefore hold that the decision of the Survey Officer is conclusive that the Inam is not part of the 1st defendant's estate, but is Government service Inam. It is the fault of the 1st defendant or rather the fault of his predecessor that he cannot now contest these matters. That decision then puts the plaintiff in the position of a Government service Inamdar and from that position he cannot now be dislodged. Whether or not the attainment of that position in 1905 gave him both the melwaram and kudiwaram rights need not now be discussed since the plaintiff is not here contending that he possesses the kudiwaram right. That would be a difficult position to maintain against the sitting tenants, defendants 2 to 12, who were not parties to the proceedings which declared him to be the mirasi Inamdar. He was therefore rightly held by the Lower Courts not to be entitled to eject the tenants but entitled only to a decree declaring this melwaram right against the 1st defendant. The 1st defendant contends that such a decree was for a relief for which the plaintiff had never asked. But that is fundamentally to misunderstand the legal position. The plaintiff sued for possession and the melwaram right is a possessory right. It is not accurate to describe it as a mere declaratory right. It is a species of possession, in fact the only kind of possession which, for example, a landlord and estate proprietor under the Madras Estates Land Act can have, and no one has yet dreamt of contending that such a landlord has no possessory right. The plaintiff therefore has been given such possession as he could be given consistent with the finding in the case. He is not entitled to possession against the tenants, he is entitled to have his possessory right to the melwaram declared against one Who has been wrongfully in possession of it. For the same reason the decree for recovery of three years' melwaram from the 1st defendant is correct since the 1st defendant has been trespassing on the plaintiff's rights as melwaramdar and wrongfully appropriating what belongs to the plaintiff.
11. The 1st defendant has founded an argument on this point on a statement of the Trial Court at page 8 of the printed papers 'The relationship of landlord and tenant has never been established between the plaintiffs and defendants 2 to 12,' and argues that therefore the 1st defendant could not trespass on a relationship which did not exist. The context in the judgment shows clearly that what the Subordinate Judge meant was that since the Survey Officer's decision did not bind defendants 2 to 12 and since defendants 2 to 12 were not shown to be the tenants of the plaintiff, the plaintiff could not get a decree to eject them. By 'tenants' he obviously meant ordinary tenants. But where the plaintiff is found to have been the melwaramdar since 1905, as the Trial Court itself held, it is not open to kudiwaram tenants to say that he is not their landlord, and the Trial Court in view of its decision in the case could not possibly have meant to say so.
12. I therefore agree with Waller, J., that the decree of the District Court is correct and the decree of that Court must therefore be restored. The plaintiff will have his costs against the 1st defendant throughout in all Courts.