1. We must accept the finding of the District Judge that the excess area of 212 acres is an encroachment on the zemindar's land; but there remains the plea raised by the plaintiff that his lessors, defendants Nos. 3 and 4, had acquired a title by adverse possession. The plea, embodied in issue No. 4, has not been decided in either Court. The District Judge has held, relying on Ragava v. Rajagopal 9 M. 39, that the decisions of the Revenue Courts in 1905 (copies filed as Exhibits I and II) operate as res judicata, so as to bar this plea. The decision in Gangaraju v. Kondireddiswami 17 M. 106 is a distinct authority for holding that in a case like the present where the alleged tenant set up in the Civil Court an independent title against his landlord, the decision of the Revenue Court would not be a bar to the same. Both these cases were considered by a Full Bench in Manicka Gramani v. Mamachandra Ayyar 21 Ma. 482 : 8 M.L.J. 210 and a perusal of the judgments of the learned Judges in that case shows clearly that they did not intend or wish to dissent from Gangaraju v. Kondireddiswami 17 M. 106. Shephard, Officiating C.J., and Moore, J., while approving the decision in Ragava v. Rajagopa 19 M. 39, are careful to distinguish between cases where the alleged tenant did, and where he did not, set up an independent title as owner.
2. In our opinion the decisions of the Revenue Courts in these cases do not operate as res judicata.
3. We must, therefore, call for a finding from the District Judge on the 4th issue on the evidence already on record. One month's time is allowed from the date of the receipt of this order for the submission of the finding and ten days will be allowed for filing objections.
4. In compliance with the order contained in the above judgment, the District Judge of Kistna submitted the following
5. FINDING.--These appeals have been remanded back by their Lordships of the High Court to give a finding on the 4th issue in the lower Court:
Had the suit lands, measuring 57 cents in Original Suit, No. 449 of 1906, 1 acre 3 cents in Original Suit No. 450 of 1906, and acre 052 in No. 451 of 1906, been part and parcel of the land let to the plaintiff by the defendants Nos. 3 and 4 for more than 12 years before the suit.
2. The plaintiffs are the lessees from 3rd and 4th defendants under Exhibit A of 1903.
I had intended to answer this, when I stated in my judgment that the real area of the inam was clearly given in the old survey of 1861, Exhibit El, and that in the new survey of 1891, Exhibit FI, the land in the possession of the inamdars (3rd and 4th defendants) had grown by 2-12 acres. I wished to imply that 3rd and 4th defendants were in possession of the excess prior to 1891. By 1891, therefore, defendants No. 3 and 4 were in possession of 2-12 acres in excess of their inam and it was an encroachment on surrounding lands. There is no evidence that they were out of possession of it between then and the date when they leased it to plaintiff in 1903 and it is in evidence that it was not till 1906 that plaintiff was ejected.
3. Therefore, we must presume that the possession continued uninterruptedly from prior to 1891 to the date of ejectment in 1906, i.e., for more than twelve years.
My finding, therefore, is that the suit lands had been part and parcel of the land let to the plaintiff by the defendants Nos. 3 and 4 for more than 12 years before the suit.
These second appeals coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following