V. Ramaswami, J.
1. The plaintiffs are the appellants. The first three plaintiffs are the sons and the 4th plaintiff is the widow of one Rajamani Chettiar. The defendant is the brother of Rajamani Chettiar. The suit properties are survey Nos. 23110 measuring 1 acre and 12 cents and 2312 measuring 24 cents out of 49 cents. The suit was filed for a declaration and possession of these two items. The plaintiffs' case was that the suit properties originally belonged to the joint family consisting of Rajamani Chettiar and his brother the defendant and that in a partition dated 15th September, 1959 they were allotted to the share of the plaintiffs. Since the defendant though a party to the partition deed claimed title to the suit properties on the ground that he has obained a patta under section , 19-A of the Estates (Abolition and Conversion into Ryotwari) Act, (XXVI of 1948) (hereinafter referred to as the Abolition Act) the plaintiffs had filed the suit. Though, as already stated, the suit related to two items the defendant did not contest the claim of the) plaintiffs in respect of survey No. 23|2; but in respect of survey 23| 10 measuring 1 acre and 12 cents the case of the defendant was that he has obtained a patta under Section 19-A of the Abolition Act that it is a new source of title granted by the Government in his favour and that, therefore, he is entitled to the property.
2. The trial Court dismissed the suit on the ground that on and from the notified date under the Abolition Act the suit lands which are tank poramboke vested in the Government and no private individual had any right or interest in them. Since the notification and taking over were prior to the partition in 15th September, 1959, the partition itself did not confer any right on the plaintiffs. The patta granted under Section 19-A was a new source of title and since that title is in the name of the defendant the plaintiffs are not entitled to a declaration and recovery of possession. In that view the suit was dismissed. This view was confirmed by the lower appellate Court.
3. Both the Courts below missed the admission of the defendant that the plaintiffs are entitled to item No. 2 bearing survey No. 2312 measuring 24 cents out of 49 cents. In spite of the concession made by the defendant the suit was dismissed even in respect of the same.
4. The plaintiffs have filed this second appeal, therefore, in respect of both the items, when it came up for admission under Order 41, Rule 11, the learned Judge thought that the findings or the Courts below that the entire estate had vested in the Government and the patta granted under Section 19-A is a new source of title is correct and that, therefore, it does not call for any interference and no error of law in respect of that item, therefore, arises. But since as regards item No. 2, there was no dispute at all, the dismissal of the suit was wrong and that there was an apparent error of law which requires admission. Accordingly in respect of item No. 2 alone the learned Judge had admitted the second appeal.
5. When this was pointed out to the learned Counsel for the appellants, he argued that once an appeal is admitted under Order 41, Rule 12 the entire appeal is before the Court and the appeal could not be restricted in the admission to any particular item or portion of the decree appealed against. In support of this contention the learned Counsel relied on a Full Bench decision of this Court in Vattipalle Eswariah v. Vattipalle Rameswarayya : AIR1940Mad483 . In that decision when the defendant filed an appeal in respect of a number of items of properties and when it came up for admission one of the learned Judges passed an order admitting the appeal only in respect of one item. The question, therefore, for consideration was whether the Court in dealing with an appeal under Order 41, Rule 11 can direct that it be admitted in part only. The Full Bench held after reviewing a number of decisions that not only the Court had no jurisdiction to restrict the grounds on which an appeal is to be heard but also had no jurisdiction to dismiss the appeal in part and admit it in part. If the appellate Court does not dismiss the appeal summarily it must by virtue of Rule 12(1) of Order 41 fix a day for hearing of the appeal and that, therefore, the Court could not admit the appeal in part and dismiss the appeal in part. Thus when the matter comes up for admission under Order 41, Rule 11 only two courses are open to the Court namely to dismiss or admit the appeal as a whole. This decision clearly, applies to the present case and that therefore, though the learned Judge has admitted the appeal in regard to item No. 2 alone, the appellants are entitled to question the finding of the Courts below even in regard to item No. 1.
6. On the merits relating to item No. 1 the argument of the learned Counsel for the appellants was that though patta under Section 19-A is a creation of the Abolition Act it is in recognition of a pre-existing right that was given and that, therefore, it could not be called a new source of title enabling the defendant to retain it for himself. It was further contended that since two of the plaintiffs were minors and one of them was a young man after the death of Rajamani Chettiar, the entire joint family properties were being managed by the defendant till the partition in the year 1959 and that when he applied for patta under Section 19-A of the Abolition Act it must be 'for the benefit of the joint family or the person to whom such right is allotted under the partition. In other words the defendant was holding the patta issued to him under Section 19-A as a trustee for the benefit of the plaintiffs who are entitled to the same. On the other hand the learned Counsel for the respondent strenuously contended that there is a clear distinction between the right to obtain a ryotwari patta under sections 11, 12, 13 and 14 of the Abolition Act and a patta issued under Section 19-A. According to the learned Counsel since the issuing of patta under Section 19-A of the Abolition Act is an absolute discretion of the Government which discretion was not available in the case of applications under sections 11, 12, 13 and 14 the principle that the patta issued is in recognition of a pre-existing right could not be invoked in respect of Section 19-A and that whoever is given patta under Section 19-A becomes entitled to the properties by virtue of that order and not by reason of any existing right. He, therefore, contended that the patta was not issued to the defendant for the benefit of the plaintiffs and that he also was not holding the same as a trustee for the plaintiffs.
7. Under Section 3 of the Abolition Act with effect on and from the notified date the entire estate including communal lands and poramboke shall stand transferred to the Government and vest in them free of all encumbrances. Since the other provisions of the Abolition Act have conferred certain rights on those ryots and other persons in possession of both the ryoti and non-ryoti lands, Section 3(d) provides that such persons who are prima facie entitled to a ryotwari patta shall not be dispossessed pending settlement and decision on the rights of such persons. Though the wording in this clause shows that the Government should be satisfied that the person in possession is prima facie entitled to a ryotwari patta the same procedure has been directed to be followed even in respect of the persons who are entitled to patta under sections 18, 19, 19-A or 20 of the Abolition Act. Under the rules framed in Section 3(d) and published in G.O. Ms. No. 367, Revenue, dated 12th February, 1955, if the Manager of the estate comes to the conclusion that the. person in possession is not prima facie entitled to a ryotwari patta he must issue a notice to the person in occupation. On consideration of the representations made by the occupant if he thinks that he (occupant) might be entitled to a patta under Section 19-A though not for a ryotwari patta, he shall not disposes such occupant unless the occupation itself is objectionable. Thus so far as the dispossession is concerned there is no difference between the possession in respect of persons claiming patta under sections 11, 12, 13 and 14 and those claiming patta under Section 19-A. While under section 11a ryot is entitled to a ryotwari patta in respect of ryoti lands which immediately before the notified date were properly included or ought to have been properly included in his holding, under Section 19-A the claim of patta could be made only by a person admitted by the land-holder into possession of any communal lands or forest or other lands which are not ryoti lands. It is true that the Government is vested with an absolute discretion to grant or refuse to grant a patta under Section 19-A and also to grant such patta on such terms as they choose but the necessary condition for the applicability of Section 19-A, is admission into possession of such person by the land-holder of any communal land or other land which is not ryoti land. If the person who claimed patta under Section 19-A was found to be a trespasser and not a person admitted into possession by a land-holder, then he could not be given any patta under that section. The question of exercising the discretion, therefore, does not arise at all in such cases. Even in a case, where the Government chose to issue a patta to such a person it could not be treated as one under Section 19-A; it will be in the nature of an assignment or a dhargas grant and not one under Section 19-A itself. Thus the pre-requisite for the applicability of Section 19-A is a legal possession by admission by the landholder of communal land.
8. The two decisions relied on by the learned Counsel for the respondent do not in any way support his contention that the patta issued under Section 19-A is a new source of title and that, therefore, the plaintiffs are not entitled. In Chinnaswamy v. Chinnaswamy : AIR1975Mad73 , what was decided was that the discretion of the Government under Section 19-A is absolute and while granting patta the Government can impose such conditions and restrictions as they choose and either the party) could accept it on such conditions or reject it; but he could not question the same. In the other decision relied on by the learned Counsel for the respondent in Velayudam Pillai v. Sandhosa Nadar : AIR1973Mad299 , factually it was found that the patta which was claimed as one under Section 19-A was not really issued under Section 19-A but it was a ryotwari patta. But in the course of the judgment the learned Judge observed that if the lands are shown to be neither ryoti nor private they will vest in the Government under Section 3 (d) of the Abolition Act and the grant of patta under Section 19-A will finally conclude the question of title, as a fresh grant from the Government in favour of the grantee of the patta. But that observation was in the nature of obiter dicta and is not necessary for the purpose of disposal of the case, in view of the finding in that case that the patta which was relied was not one under Section 19-A. As already stated even for the purpose of obtaining the patta under Section 19-A the person must prove that he was admitted by the landholder into possession of any communal land which is not a ryoti land. Otherwise he will not come under Section 19-A. That means it is the admission by the erstwhile landholder into possession of such communal land and continuing in possession as such that entitles him to a patta under Section 19-A. In this case there is no evidence of the date of the notification and taking over of the Bibikulam Estate of which the suit land formed part. But it is the common case that the? Notification was made sometime in the year 1951. Even at that time survey No. 23/10 belonged to the joint family of the plaintiffs' father Rajamani Chettiar and the defendant and they were admitted to possession by the erstwhile landholder long before the notification. In the notice issued to the defendant by the manager of the estate on 26th August, 1959 it is stated that the defendant was reported to be in occupation of the land specified in the schedule thereto which is survey No. 23110 measuring 1 acre and 12 cents and which has vested in the Government under Section 3(d) and called upon the defendant to show cause in writing why he should not be dispossessed. This notice, as seen from the date, was issued prior to the partition. Any notice received by the defendant and any representation made by him, therefore, could only be on behalf of the joint family represented by him as he was in possession of the land as on that date only as a member of the joint family. The Assistant Settlement Officer when he subsequently issued notice under Section 19-A in pursuance of the representation made by the defendant calling for objection from third parties against the grant of Section 19-A patta in his favour, and when ultimately decided could not have considered the claim of the defendant for patta under Section 19-A in his individual capacity but only as property belonging to the joint family by reason of admission into possession by the erstwhile landholder though the patta issued under Section 19-A, dated 25th July, 1962 is in the name of the defendant. Therefore, it should enure for the benefit of the joint 'family. There is no evidence also that the Assistant Settlement Officer was aware of the partition at the time of issue of the patta. Since prior to this issue of notice there was a partition and the suit property was allotted to the plaintiffs the rights under the patta will be available only to the plaintiffs and not to the defendant. It may be mentioned that even at the time of the partition two of the plaintiffs were minors aged about 11 years and 7 years and only one of them appeared to have become just then a major. The defendant as the oldest member of the joint family was in possession and management of the entirety of the joint family properties and that, therefore, he could not rely on the issue of the patta in his name alone as conferring on him or entitling him to any right to the property. I am therefore, of the opinion that the plaintiffs are entitled to a declaration and possession of the suit lands.
9. Accordingly the second appeal is allowed. The judgment and decree of the Courts below are set aside and the suit is decreed in respect of both the items as prayed for. However, there will be no order as to costs. No leave.