1. This is an appeal from a decree giving the plaintiff, the Zamindar of Pittapur, a declaration that the suit lands are his jeroyiti lands and not the inam lands of the first defendant.
2. [Their Lordships dealt with the evidence and proceeded as follows:].
3. On the whole we see no reason to differ from the conclusion of the Subordinate Judge that there has been a wrongful transfer by the first defendant of the jeroyiti lands held by him in the zamindari to his inam lands in the same village. The Subordinate Judge has given the plaintiff a declaratory decree for the whole extent of the lands claimed by him and it is admitted that he has failed to make any allowance to the extent of the inam lands in the village which the first defendant undoubtedly is entitled to. The question then is what is the inam area to which he should be held entitled. As we have said the whole area of his family inam was shown in the inam register (Exhibit P) at about five acres of which he retained two acres. There is some evidence given by the karnam that his family was cultivating for a long time thirteen acres and it is of course possible that there has been some encroachment for some time. On the whole we have come to the conclusion that making a liberal allowance in favour of the first defendant, the plaintiff is entitled to a declaration that Survey No. 298 consisting of 2948 constitutes his jeroyiti lands.
4. Objection was taken by Mr. Prakasam that the boundaries are conclusive under Section 12, Sub-section (3) of the Survey Act. We were at first considerably impressed by that objection. We see, however, that the Full Bench in Muthirulandi Poosari v. Sethuram Aiyar I.L.R(1919) . Mad., 425 limited themselves to deciding that the decision by the Survey officer in boundary cases was conclusive under Section 13 only where there has been a dispute and they said nothing about the effect of the word 'final' in Section 12, Sub-section (3). Sections 11 and 12 deal also with cases where there is no dispute at all about the boundaries and cases where the registered owners do not take the trouble to go and point them out, and those sections direct that, in such cases, where there is no dispute, the Survey officer is to fix the boundary as pointed out, and where parties do not attend he is to fix the boundaries as best as he may from the records and his order fixing the boundaries is to be notified to the parties interested, and they have a right of appeal, and if they do not appeal or if the appeal is decided against them, then the original order or the order in appeal is to be final under Section 12, Sub-section (3). On a further consideration of the matter, we think that sufficient effect is given to that provision by holding it to mean that there can be no further dispute about that boundary, that is, the boundary that has to go into the survey. But it seems to be going too far to say that that boundary is to be binding for all purposes so that it cannot be questioned by either of the parties. In the present case it looks as if there had been carelessness at least on the part of the zamindar's agents in allowing the boundary to be settled in this way. It would be hard that a boundary of that sort should be made conclusive upon a party who neglected to attend, and whose neglect had been taken advantage of by the other side to point out the wrong boundaries. But; however that may be, we think that it is sufficient to hold that the effect of Section 12, Sub-section (3), is to make the boundary final but that it does not go so far as to preclude the land-owners altogether from afterwards disputing the correctness of the boundary in a Court of law. That also seems to have been the view taken in some of the unreported cases to which we have been referred.
5. Another question was raised by Mr. Prakasam who appeared for defendants Nos. 3 to 5 who were mortgagees from the first defendant as to their mortgage. We are not concerned to decide anything in this case about their rights against the mortgagor, the first defendant, and those claiming through or under him.
6. The Appeal will in part be allowed and the decree must be modified accordingly.