1. In the first of these the Secretary of State appeals against the decree of the Additional Sub-Judge of Bezwada in O.S. 22 of 1923 on his file. This was a suit by the Zamindar of South Vallur for a declaration of his title to certain lankas, and for possession with mesne profits for nine years which are estimated at over two lakhs and for future mesne profits till delivery. The plaintiff zamindar's father obtained the South Vallur estate in 1896 and his uncle got the North Vallur estate and the latter successfully established his right to possession of the lank attached to his estate as :. of Secy. of State v. Venkata Narasimha Naidu  11 M.L.W. 256 .
2. From 1894 the Government was in possession of the Kistna river for conservancy purposes and the suit lands were formed in consequence of the operations of Government. On 12th June 1920 the plaintiff zaimindar made his first demand for the possession of the suit lankas and they were delivered to him on 14th July 1921 The suit O.S. 22 of 1923 was therefore only fought before the Sub-Judge on the question of mesne profits. The Government was in possession of the Kistna river under the provisions of Act 6 of 1884. Section 11 of the Act runs as follows:
After such surveys shall have been completed and approved and the notification as provided by this Act made by the Governor-in-Council, land within the limits of a river-bed, as defined in Section 6, which has not been cultivated for two years previous to the date on which this Act is applied to the river, shall not, without the previous permission of the Conservator of Rivers in writing, be planted, cultivated or built upon, and it shall not be lawful without such permission to plant, cultivate or build upon, within the limit of a river-bed, any new formation of land.
Whoever commences or carries on, or attempts to carry on any plantation, cultivation or construction in contravention of this section and of a notice from the Conservator to desist shall, on conviction before a Magistrate, be liable to a fine not exceeding Rs. 500, or in default of payment, to simple imprisonment cot exceeding throe months for every such offence.
3. By Section 12 cultivation may be prohibited if it tends to obstruct or divert the course of the river. By Section 16 refusal of permission to cultivate or requisition to remove construction etc. give a right of compensation to the person aggrieved by such refusal or requisition. The Sub-Judge has found that Government was never in wrongful possession of the suit properties but was in possession under their statutory right, and that permission to cultivate was never refused-it was not even applied for in this case. The Sub-Judge however held that the zamindar was entitled to mesne profits for one year as Government was in possession for that period 'even after demand.' He therefore held that Government's possession from July 1920 was wrongful and awarded 6he zamindar mesne profits at the rate of Rs. 30 per acre. It is from this decision the Government appeals. The Sub-Judge after finding that the plaintiff never applied for permission and that it is only when permission is refused that a cause of action is given seems to be clearly wrong in holding that Government's possession from July 1920 was wrongful. Although he finds as just stated, he seems to hold that demand on the part of plaintiff is sufficient to give a right to compensation. This is clearly contrary to the provisions of Section 16. In the other 'Appeal (193 of 1924), the zamindar contends that the Secretary of State asserted a title to the lankas against him; and that the Secretary of State's possession was therefore wrongful ab initio and that he is liable for mesne profits for the whole of nine years from 1911. The zamindar relies on the position of the North Vallur estate and says the same considerations apply to South Vallur. As pointed out by the Sub-Judge in the case of North Vallur the cause of action was refusal of permission to the zamindar in 1911.
4. It seems to me that we have nothing to do with North Vallur here and that the fact that they were once in the same zanaindari cannot affect the present case. As stated above the first demand for possession was on 14th June 1920, which appears to have been a notice of suit. The Collector replied on 7th August 1920 (Ex. 11) requesting the zamindar either to furnish a plan or have the extents claimed pegged out or demarcated on the ground. On 19th November 1920 (Ex. E-1) the Collector offered to put zamindar in possession if the estate would waive mesne profits claimed in the suit notice. An office-note on this is to the effect that the zamindar was unwilling to waive his claim to mesne profits and a reply seems to have been sent to this letter of the Collector on 23rd November 1920 but it is not exhibited and on 25th November 1920 the suit was filed. On 29th November 1920 the Collector wrote to say that the matter has been referred to the Board of Revenue for orders. On 28th April 1921 (Ex. 12) Government agreed to recognize claim of zamindar to the suit accretions in the Kistna river and on 14th July 1921 possession was delivered.
5. The zamindar's vakil contended that Exs. C and D show hostile assertion of title by Government and that on the analogy of the North Vallur decision we must assume that half the river bed belonged to the zamindar. These exhibits refer to the levy of seigniorage for the removal of sand from the river-bed. Ex. C (24th November 1915) is said to be a private copy of a takeed issued by the Tahsildar of Bezwada to the village officers of South Vallur. It is not proved by any witness to be a copy of an original and it ought not to have been received in evidence by the Sub-Judge. Ex. D (29th February 1916) is a letter from the Divisional Officer, Bezwada, to the Estate Collector, Kistna and points out with reference to a certain letter not filed that the Kistna river-bed belongs to Government. Further seigniorage has been ordered to be levied as there is no implication that the river-bed belongs to the South Vallur, We do not know to what exactly this letter refers and as to whether or not it affects or might thereafter affect rights to be subsequently declared in favour of the zamindar. It is impossible to my mind to hold that this is a hostile assertion of title by Government as against the zamindar, whose rights had not been established. Exs. A and B are the pleadings in the North Vallur suit which were also relied on for the same purpose The only provision of the Evidence Act which the learned vakil was able to point to as being applicable to enable them to be admitted in evidence was Section 32 (4), but there was clearly no public right or matter of public interest in issue in the North Vallur suit. These exhibits are therefore irrelevant. The zamindar therefore not having asked for permission and no permission having been refu6ed is not entitled to compensation under the Rivers Conservancy Act and it cannot be said that Government has asserted a hostile title against him or that the decision as to North Vallur has any bearing on this case. The appeal of Government (130 of 1924) must therefore be allowed and the zamindar's appeal No. 193 of 1924 dismissed, both with costs to the former throughout.
6. I agree.