1. This appeal arises out of a suit filed by the Pandarasannadhi of the Kunnakudi Mutt for the purpose of getting a decision by an appellate Survey Officer (dated 22nd September, 1924) set aside in some respects. There are two villages which may be referred to as M and A. M belongs to the Kunnakudi Mutt of which the plaintiff is the Pandarasannadhi and is a Dharmasanam village in the Sivaganga estate. A belongs to a Devastanam in the Sivaganga estate and the Zamindar is the trustee thereof. The second defendant is an alienee from the Zamindar.
2. Survey operations were started in this locality in 1922 or 1923. It is not clear from the records whether the proceedings were started when Act IV of 1897 was in force or after Act VIII of 1923 came into force. It may be a question of some difficulty whether in dealing with the effects of the survey, the Court should apply the provisions of Act IV of 1897 or those of Act VIII of 1923. There is reason to think that there is some marked difference between the two acts in respect of the effect of the survey, if a suit is not brought within three years allowed by the Act. We do not pursue that question further because in the present instance the suit was undoubtedly filed within three years of the decision of the appellate survey officer.
3. In the plaint as originally framed only the Zamindar was the defendant; the second defendant was later on impleaded as an alienee from the Zamindar subsequent to the institution of the suit. There is a statement in paragraph 9 of the plaint that:
The lands in dispute are warapat punja lands in the holding of the various pattadars of the village and there have been for a long number of years exchange of pattas and muchilikas in respect of the suit lands and the mutt as well as the lessees from the mutt have been in enjoyment of the same by collecting the waram, etc., due to them.
4. In the written statements filed in January, 1928, by the first defendant and in February, 1929, by the second defendant, objections on the score of non-joinder were taken. The objection in paragraph 13 of the first defendant's written statement is general and does not specify who the ryots are that were asked to be joined. In the second defendant's written statement, paragraph 6 puts it more specifically that the plaintiff should have impleaded the tenants who according to him were in possession under him. The issues raised the question of non-joinder in various forms, but the question was not dealt with in the first instance nor for more than a couple of years after the written statements had been filed.
5. A large mass of documentary evidence was filed in the case and a number of witnesses have been examined on both sides. On the 11th July, 1932, it appears from the B Diary that arguments were heard on issues 3, 5, 6 and 7 which were apparently regarded as preliminary issues. We are constrained to observe that it is a pity that these preliminary arguments had not been thought of at a much earlier stage, before time was spent on recording so much evidence. After hearing these preliminary arguments, an order was passed on the non-joinder issue on 1st August, 1932. The learned Judge held that both on general considerations and by virtue of Section 14 of the Survey and Boundaries Act, the ryots of the two villages who were said to be in possession and enjoyment of several items of the property in dispute were necessary parties to the suit. Time was accordingly given to enable the plaintiffs to apply to implead them. I.A. No. 1096 of 1932 was accordingly filed. That application came on for hearing in September, 1932, and the learned Judge then held that as the non-joinder of the persons proposed to be added was fatal to the maintainability of the suit and they were proposed to be added as defendants only after the three years' period of limitation had expired, it was not proper to allow them to be joined as parties to the suit at that stage. The result was that the learned Judge dismissed the suit. Hence this appeal by the plaintiff.
6. The order of the learned Judge has been supported by Mr. Sitarama Rao on the ground that under Sections 13 and 14 of Act VIII of 1923 a decision of the Survey Officer demarcating a boundary is conclusive not merely between the parties to a dispute before the survey authorities (as was held under the Act of 1897) but as against all persons interested in that boundary line and it could not therefore have been the intention of the legislature that a suit under Section 14 could be instituted without impleading eo nominee all persons who may be interested in that boundary line. It may also be mentioned that in Act IV of 1897 there was an explanation to Section 13 to the effect that:
Where parties litigate bona fide in respect of boundaries of property claimed in common for themselves and others, all persons interested in such boundary dispute shall, for the purpose of this section, be deemed to claim under parties so litigating.
7. This provision has been replaced in Section 14 of the present Act by the following clause:
The plaintiff in such suit shall join as parties to it all persons whom he has reason to believe to be interested in the boundary which is the subject of the suit.
8. Mr. Sitarama Rao contends that the result of this substitution is that if any persons whom the plaintiff must have believed to be interested in the boundary in question are not impleaded the whole suit must fail because it will not be possible to correct the survey officer's determination only as against some of the persons interested while leaving it in force as against other persons.
9. Mr. Sitarama Rao may be right to this extent that it is desirable to have before the Court all persons interested in the boundary in question; but we think it will be reading too much into that provision to say that the omission to implead any person so interested is necessarily fatal to the suit. The very language in which that clause is couched, by reference to the reasonable belief of the plaintiff as to the persons interested, is against the extreme contention put forward by Mr. Sitarama Rao. It must also be remembered that the Survey and Boundaries Act deals with the Survey of lands in estates as well as lands in ryotwari areas. In applying Section 14 to survey of lands in estates there are, it seems to us, other considerations also to be borne in mind. Within an estate, there may be various grades of cultivators possessing various rights as against the holder of the estate. There may be cultivators of private lands; there may be persons in possession of non-occupancy lands and of occupancy lands of service tenures and so on. There may also be waste lands in the estate. It is one thing to postulate that between the holder of the estate on the one hand and against the various persons in occupation of a particular piece of land in the estate on the other, there are varying interests and tenures; but it does not seem to us to be the correct principle that in a dispute between the holder of the estate and the holder of any neighbouring estate in respect of the boundary between the two estates, the tenants or cultivators under the holder of either estate are prima facie persons interested within the meaning of this part of Section 14, at any rate not to the extent that their non-joinder should be regarded as fatal to the maintainability of the suit. It has been decided with reference to the language of the permanent settlement regulation that for various purposes the registered proprietor is the owner of the area comprised in the settlement and in recent cases from Calcutta, the Privy Council have laid down that he is the owner even to the extent of being regarded as the person entitled to the rights to minerals in the land (cf. Section 7 of the Madras Estates Land Act). We are therefore inclined to think that in a dispute between one estate-holder and a neighbouring estate holder, in respect of the boundary between the two estates, the estate-holders are 'the persons prima facie interested in the dispute within the meaning of Section 14. It is significant in this connection to note that when the survey now in question was conducted the only persons who appeared in response to the notice under Section 6 were plaintiff and the Zamindar. In this view, the learned Judge seems to us to have gone too far in holding that the omission to add the ryots as parties to the suit in the first instance was such a defect as necessitated the dismissal of the suit.
10. It is true that the application to add the ryots as parties was made after the lapse of three years from the date of the survey officer's decision. But in view of the principle laid down in Guruvayya v. Dattatraya I.L.R. (1903) 28 Bom. 11 that circumstance will not of itself justify either the dismissal of the application to implead them or the dismissal of the suit. We would therefore direct that I.A. No. 1096 of 1932 be ordered as prayed for. We would also set aside the decree of the lower Court dismissing the suit and remand the case for disposal on the merits. We cannot however help thinking that this situation has been brought about by the plaintiff himself and might well have been avoided if he had taken steps earlier to file the suit or had impleaded the ryots in the ordinary course. We accordingly direct that up to this stage all costs incurred shall be respectively borne by the parties themselves. There will be a refund of court-fee on the memorandum of appeal.