1. In this case the plaintiffs sued for a declaration that the sale of the plaint land to the 3rd defendant by the 1st and 2nd defendants is void and to recover possession of the land from the 3rd defendant. Plaintiffs sue as representatives of the pattadars and mirasdars of the village, alleging that the land is blacksmith's unenfranchised inam, Defendants 1 and 2 were, until shortly before the suit, when they were removed from service by the plaintiffs, the inamdars. Something was said in the lower courts as to the nature of the inam as to whether it consisted in the melwaram or in that and the kudivaram. Both sides are agreed however that it consisted only in the melwaram; but they differ as to the ownership of the kudivaram, plaintiffs contending that it is theirs, and defendants that, notwithstanding that the village is situated in the Chingleput District, it belongs to Government, The lower appellate Court has, we think, found on this question in favour of the defendants. For, although it recorded a separate and more distinct finding on the point of limitation, it also, we think, in paragraph 5 of its judgment did find on this point, since it said that 'for the mirasdars' allegation that they had the kudivaram to be believed they must adduce some further evidence' and, 'if they had the kudivaram, they must have dealt with it in some way or must have some time ejected tenants, but they have not adduced any proof of such acts of ownership. 'We take it that, although the lower appellate Court does not say so in so many words, it did mean to find that the first and second defendants, not the plaintiff, owned the kudivaram. That finding on the evidence before the Court was well-supported; for there is nothing whatever to establish any connection whatever between the plaintiffs and the land, except that they have from time to time been making appointments of village blacksmiths as inamdars. There is nothing however to show that they have ever admitted anybody to or ousted anybody from possession. There is also the question of payment of rent; and the plaintiffs' answer on that point is that they received service in lieu of rent and generally that in Chingleput district the mirasdars must be presumed to be entitled to the kudivaram of all land whether or no in their possession.
2. As regards the acceptance of service in lieu of rent' it need only be said that in other districts of the Presidency that contention would clearly be unacceptable and we have not been shown why any different view should be taken regarding services in the Chingleput district or why they should not be supposed to have been arranged by the ruling power for the benefit of the villagers by means of a grant of land. For the more general contention reliance has been placed on Chinnan v. Kondama Naidu (1913) 26 M.L.J. 169, but that case is clearly inapplicable, since it was admitted there that the contending parties were landlords and tenants and the only question was whether the latter had or had not occupancy rights. Such a decision can have no application in the present case, where the existence of any tenancy is the matter in question. Plaintiffs in fact required to support their argument a presumption that any land in a Chingleput village not in the possession of mirasdars must be presumed to be held under them. We have been shown no authority for such a presumption and are not prepared to make it.
3. The lower Court's finding which is one of fact not having been successfully assailed, its conclusion that the kudivaram was the property of the defendants must be sustained. It follows that a decree for possession was rightly refused.
4. The appeal has next been argued with reference to the other relief claimed in the plaint, a declaration that the sale to the 3rd defendant by the 1st and 2nd defendants is void, The grant of such a declaration is under Section 42 of the Specific Relief Act discretionary. We find on enquiry that plaintiffs have dispensed with the services of the 1st and 2nd defendants and the latter no doubt are no longer inamdars. It may then for the sake of argument be taken that the latter are no longer entitled to the land. We find however further that plaintiffs have not so far appointed any blacksmith inamdars in their stead and, that being so, we do not think that we ought to use our discretion to make any declaration for the benefit of the person, who has still to be appointed and who may in fact never be appointed by plaintiffs.
5. The second appeal fails and is dismissed with costs.