Anantakrishna Iyer, J.
1. The plaintiffs sued for a declaration that they are entitled to cultivate and enjoy 4 acres and 4 cents of land in re-Survey No. 367/1 in the village of Pragadavaram and for an injunction restraining the defendant from ejecting the plaintiffs from the suit land or levying penal assessment and for the refund of the penal assessment of Rs. 15 collected by the defendant from the plaintiffs. The suit having been dismissed by both the lower Courts, the plaintiffs have preferred this second appeal.
2. The suit land is situated in a Government ryotwari tract. It is an un assessed waste land. Both the Courts have found that the Government have been enjoying the usufruct of the trees standing on the land, by periodically selling the right to enjoy it by auction. It is admitted that the plaintiffs have not been granted any patta in respect of the suit land by the Government. Both the lower Courts have held that the plaintiffs have not proved adverse possession against Government for the period of sixty years as required by the recent Privy Council decision reported as Secretary of State for India v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 31 M.L.J. 324 : 20 C.W.N. 1311 : (1916) 2 M.W.N. 224 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.). The learned Advocate on behalf of the plaintiffs, however, contends that his clients have been in possession for many years and that the Collector has also received payments from these plaintiffs in respect of the enjoyment of this land. On this point this is what the lower Appellate Court says:
In his cross-examination he (the 1st plaintiff as P.W. No. (5) deposed that he filed a petition to the Collector for permission to cultivate the land as an unauthorised occupier and that he was so permitted. Whatever may be the nature of the plaintiffs' occupation prior to this, after this occasion when he sought Collector's permission to cultivate the land, it can no longer be said that he was holding the lands of right or adversely to the Government.
Finally, the Subordinate Judge remarks:
The admitted fact that 1st plaintiff sought the Collector's permission to cultivate the suit land would go to show that the occupation by plaintiffs of the suit land could not be as of right or adverse to the Government.
3. In these circumstances the lower Courts have dismissed the plaintiffs' suit.
4. No doubt, ordinarily the Government would grant pattos--in respect of unassessed waste lands of which particular persons have been allowed to be in possession for Borne period on payment of the amount agreed to between the parties and the Collector,--only to the persons who were so allowed to be in possession. But it cannot be said that the Government is bound to grant pitta to such persons or that a suit would lie in the Civil Court to compel the Government to do so. It was suggested in the lower Courts that the Government wanted to give this land to the tillage Munsii who worked against non cc-operatore, and, therefore, gave notice of ejeatment to the plaintiffs. Whatever might be the motive underlying the Government's resolution to grant pattas totha plaintiffs in respect of the suit land, I think that the facts proved in this case do not entitle the plaintiffs to a decree from the Civil Court that they are entitled to hold this land as if pattas had been granted by the Government. Such land would be at the disposal of the Government till a patta is granted; when once patta in granted, the right of the Government would be confined to the recovery of the revenue due in respect of it. Sae Pullanappally Sankaran Namhudri v. Vittil Thalakat Mahomed 28 M. 505 : 15 M.L.J. 416, But unfortunately for the plaintiffs, no patta has been granted to them by the Government for the suit lands, so takt the lands continue to be at the disposal of the Government at present. In this connection I should like to quote a passage from the judgment of Ramesam, J. in Buddala Gangayya v. Vennavalli Satyanarayana : AIR1925Mad1021 which is as follows:
When a person,-who has no-patta and is; therefore, not a ryot, trespasses on a land belonging to Government and cultivates it, the Government sometimes imposes an assessment (somewhat heavier than the usual settlement assessment). This is called Sivajama assessment. It amounts to a condoning of the act of trespass, but does not amount to a recognition of any right, nor any undertaking on the part of the Government to permit the occupation for the future, though, as a matter of fact, the occupation may go on for years, and the trespass for each year be condoned for that year by the recovery of the assessment. (S.O. 15, paras, 23, 24 and 25).
5. The facts found in the present case are more or less similar to the facts mentioned by the learned Judge in the case quoted by me.
6. The last point urged was this. The plaintiffs on whom penal assessment Was levied being admittedly in possession, the burden of proof of title is upon the Government. In answer to that, it is enough to say that both the lower Courts have found that the oral evidence adduced or the side of the plaintiff is unreliable and having regard to the other circumstances mentioned by me already, the lower Courts had ample materials before them on which it was open to them to find in the way they did. The onus of proof, is immaterial when evidence has been let in by both sides. I, therefore, accept the finding of the lower Appellate Court and dismiss the second appeal with costs.