Venkataramana Rao, J.
1. This batch of 29 second appeals arises out of suits instituted by the plaintiff-appellant for recovery of rent from various tenants in the occupation of the lands in the two villages of Jagannadhapuram and Venkatarayapuram, in the Ganjam district. The lands comprise three varieties, (1) Kaniyal (2) Kondholo and (3) Bogodo. The plaintiff is one of the co-sharers alongwith Nyapati Seetharamamma and Nyapati Suryanarayanamurthi. The relationship' of these three sharers will appear from the following pedigree:
Jaganna Seenayya Ballayya Raganna
| | | |
Vijayaramamurthy Ramanna Seenayya : aughter (Mangu family)
| | Buchamma.
|------------| Venkatasrinivasa Rao
Jagannadha Rao Pattabiramayya
(Defendant 4). Vijayaramamurti (Defendant 3).
2. It will be seen from the above that Sitaramamma is the widow of Narasanna whose father Jagannadha Rao was the brother of Pattabiramayya, the father of the plaintiff, and that Suryanarayanamurti is the brother of the plaintiff being the other son of Pattabiramayya. The plaintiff claimed half a share in the Kaniya lands and three fourth share in the Kondolo and Bogodo lands. In the Kaniya lands he admitted that Sitaramamma was entitled to a fourth share and Suryanarayanamurt another fourth share. In the Kondolo and Bogodo lands he admitted that Suryanarayanamurti was entitled to a fourth share but denied that Sitaramamma had any share therein. The Kaniya lands are lands which have been from time immemorial under cultivation and Kondolo and Bogodo lands originally waste lands but subsequently brought under cultivation. The plaintiffs did not first implead Seetaramamma and Suryanarayanamurti as par-ties to the suit but on objection raised by the tenants they were added as defendants in the suits. After they were impleaded as parties they disputed the claim of the plaintiff in regard to the shares. Sitaramamma alleged that she was entitled to a half share in all the Kaniya, Kondolo and Bogodo lands. Suryanarayanamurti admitted that he was entitled only to a one-fourth share in the Kaniya lands but stated that he was entitled to a half share in the Kondolo and Bogodo lands denying the title of Sitaramamma to any share therein. Both the lower Courts concurrently found in favour of the claim set up by Sitaramamma, that is, they held that the plaintiff and Suryanarayanamurti were each entitled only to a fourth share in the suit properties and that Sitaramamma was entitled to a half share. Hence these second appeals by the plaintiff. Both the tenants as well as Sitaramamma and Suryanarayanamurti are respondents to the appeals.
3. Mr. Jagannadha Das on behalf of the respondents raised a preliminary objection that no second appeal would lie, the suits being one for rent and of a small cause nature having regard to the valuation in the plaints by virtue of Section 102, Civil P.C. He relied on a number of cases for the purpose of showing that the mere fact that a question of title has been adjudicated upon will not make the suits any the less suits of a nature cognizable by the Court of small causes, because the adjudication as to title is only incidental to the main relief claimed in the suits. All the cases referred to by him are cases where the conflict was only between landlord and tenant but where the question arises as to the proper share which a landlord will be entitled to in a piece of land and for the purpose of determination of that share the co-sharers are made parties, it would seem to me that so far as the co-sharers are concerned, the suits are in substance for a declaration of the plaintiff's share to the land. That being so, the suits cannot be of a small cause nature. In this case, though at the inception the salts were for rent, after the joinder of Sitaramamma and Suryanarayanamurti, they ceased to be suits merely for rent and the declaration of title to the plaintiff's share became really a substantial question for decision. I will now briefly refer to the decisions relied on by Mr. Jagannadha Das and Mr. Govindarajachari in support of their respective contentions. Subramania Iyer v. Namasivaya Asari (1918) 5 A.I.R. Mad. 162 was the first case referred to by Mr. Jagannadha Das. In that case the suit was admittedly one of a small cause nature when it was filed. At the date of the second appeal, by the amendment of the Provincial Small Cause Courts Act, the suit ceased to be of a small cause nature. The question therefore was whether a second appeal would lie in view of the fact that there has been an amendment to the Act.
4. It was held that a second appeal would not lie on the principle that a vested right to the finality of the judgment accrued to the successful party and the amendment of the Act could not affect that vested right. In Bapayya v. Biswa Sundara : AIR1929Mad389 the suit was for use and occupation of the land against an inamdar. The question of title was raised by the defendant in his written statement and the suit which was originally filed in a Small Cause Court was transferred under Section 23, Provincial Small Cause Courts Act, to the original side of the Court, before which the suit was pending. It was held that the question of title was only incidental and the suit did not cease to be one of a small cause nature and no second appeal would lie. Similarly, in Veeraraghava Iyengar v. Villai Moopai : (1912)23MLJ517 the suit was for rent by a landlord against his tenant and there was a prayer for a declaration that the plaintiff was entitled to melwaram. It was held that the declaration of a right to receive the melwaram was only incidental and the suit was therefore one of a small cause nature and no second appeal would lie. The case relied on by Mr. Govindarajachari Prayaga Doss Jeevaru v. Doraiswami Iyengar : AIR1926Mad656 does not throw much light on the matterf. There is an observation to the effect that where the plaint and written statement show that the issue to be fought out and decided is one of title, the suit cannot be considered to be one of a small cause nature. Nobody need dispute this proposition. In this case the suit was for rent and admittedly one of a small cause nature against the defendants tenants.
5. But, as against the co-sharers, the suit could not be one of a small cause nature because the question in issue between them was one of title, that is, to what shares in the lands are each entitled to Therefore the nature of the suit must be judged after the joinder of the parties in considering whether a second appeal would lie or not. As the suits ceased to be merely for rent and the declaration of title is not merely an incidental relief but also a substantial relief on -which the consequential relief as to the amount of rent that the plaintiff would be entitled to would depend, the suits ceased to be of a small cause nature. They would virtually be suits involving an apportionment of rent of immovable property within the meaning of Article 7 of Schedule 2 to the Provincial Small Cause Courts Act: cf. Rangiah Chetti v. Vajravelu Mudaliar (1918) 5 A.I.R. Mad. 557. The second appeals would therefore lie. I therefore overrule the contention of Mr. Jagannadha Das. (His Lordship then discussed the merits of the case.)
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6. On a consideration of the entire evidence and the probabilities of the case, I am of the opinion that the view taken by both the Courts that the plaintiff has not succeeded in proving his exclusive title to Buchamma's share of the lands by adverse possession is correct. Of course, in regard to Bogodo and Kondolo lands of the family, adverse possession was set up but it could hardly be maintained in the face of the decree in O.S. No. 21 of 1890. I have therefore come to the conclusion that the finding of both the lower Courts that the plaintiff is only entitled to a fourth share in Kaniya, Bogodo and Kondolo lands is correct and must be affirmed. The second appeals accordingly fail and are dismissed with costs. Advocate's fee Rs. 200 for all the appeals. Leave to appeal refused.