1. We consider that the plaintiff is entitled to a declaration of title against defendants Nos. 5 and 6 in respect of plots Nos. 1, 1 A and 1 B, subject to the Government's right to levy assessment on the laud, and that the District Judge was in error in supposing on the strength of Subbaraya v. Krishnappa 12 M. 422. that they were not estopped from denying his title. That case proceeded on the assumption that the land in dispute was kumaki waste land and that the person, from whom the 1st defendant got possession, had himself derived his title from Government. Under Section 116 of the Evidence Act, these defendants were estopped from denying the plaintiff's title, however defective it might be, so long as they failed to surrender possession to him. Vide, Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas. 299: 19 C. W. N. 1207: 18 M. L. T. 248: 22 C. L. J. 516.
2. As regards plot No. 7 A the District Judge was right in thinking that the plaintiff, having admitted that it was assessed waste by accepting a patta from Government, could not afterwards set up any other kind of ownership.
3. The District Judge has found that the other plots were not at any time cultivated and that there had been no exercise of acts of ownership other than those of cutting leaves for manure, etc., and such acts of occupation as were held in Secretary of State for India v. Manjeshwar Krishnayya 28 M.a 257. to be worthless as evidence of any proprietary title in the land. This finding is sufficient to dispose of the plaintiff's case in respect of these items.
4. The decree of the lower Courts will be modified as above stated in respect of items Nos. 1, 1A, and 1B and he will be given proportionate costs throughout against these respondents.
5. With this exception the second appeal is dismissed with costs of 1st respondent.