1. The defendant in the suit applied for the grant of certain land to the Revenue officers of Government in 1903. The plaintiff who was an adjoining owner and who according to the dharkast rules had a preferential claim to have the land allotted to him, then stated that he did not want it. The Revenue Inspector required the defendant to clear the land of prickly pear. While enquiries for allotting the land were in progress, the defendant spent a considerable amount of money on the land. Subsequently when the dharkast enquiry was resumed, the plaintiff broke faith with the defendant and made an application for the land. Unfortunately the Revenue authorities granted it to him and ignored the claims of the defendant. The Plaintiff having got a patta from Government instituted this suit for recovery of possession from the defendant.
2. Both the lower Courts disallowed his claim on the ground that the plaintiff was estopped by his previous disclaimer from setting up a claim to recover the land. We are unable to uphold this view. The plaintiff at the time that he expressed his intention not to claim that the land should be allotted to him, had no right to it. His suit is based on title subsequently acquired by him by grant from Government. Government has not repudiated the grant made to the plaintiff. There is therefore in our opinion no legal answer to the plaintiff's claim for recovery of the land. An observation contained in the Secretary of State for India v. Bundeppa of Konakondlal I.L.R. (1908) M. 360 has been read to us on behalf of the respondent. It is stated there (quoting from the earlier decision in Collector of Salem v. Rangappa I.L.R. (1889) M. 404) that a person who has obtained a patta from Government would acquire a valid title in the absence of any fraud on Government or on the defendant a rival claimant. There may possibly be cases to which that proposition might be applicable. It is possible that a fraud practised on a particular party might entitle that party to oppose the plaintiff's claim to enforce his legal right. But there was no fraud in this case as found by both the lower Courts and we are not able to find any defence to the plaintiff's claim.
3. We must therefore reverse the decrees of the lower Courts and give the plaintiff a decree for the recovery of the land sued for. We disallow the claim for mesne profits prior to the date of suit as the claim is not pressed. The lower appellate Court will hold an enquiry as to the amount of mesne profits which the plaintiff is entitled to from the date of suit to the date of delivery of possesion and pass a final order for the amount that may be found due. The Plaintiff is also entitled to costs from the defendant throughout on the value of the land.