1. The defendant in the suit applied, for the grant of certain land, to the Revenue OFFICER of Government in 1903. The plaintiff, who was as adjoining owner and who, according to darkhast rules, had a preferential claim to have the land allotted to him, then stated that he did not want it. The Revenue Inspector required the defendant to clear the land of prickly pear. While inquiries for allotting the land were in progress, the defendant spent a considerable amount of money on the land. Subsequently, when the darkhast inquiry was resumed, the plaintiff broke faith with the defendant and made an application for the land. Unfortunately, the Revenue Authorities granted it to him and ignored the claims of the defendant. The plaintiff, having got a patta from Government, instituted, this suit for recovery of possession from the defendant.
2. Both the lower Courts disallowed his claim on the ground that plaintiff was estopped by his previous disclaimer from setting up a claim to recover the land. We are unable to uphold this view. The plaintiff, at the time that he expressed his intention not to claim that the land should be allotted to him, had no right to it. His suit is based on title subsequently acquired by him by grant from Government. Government has not repudiated the grant made to the plaintiff. There is, therefore, in our opinion, no legal answer to the plaintiff's claim for recovery of the land. An observation contained in The Secretary of State for India in Council v. Bundeppa of Konahondia 5 M.L.T. 31 : 1 Ind. Cas. 76 has been read to us on behalf of the respondent. It is stated that in Collector of Salem v. Ranagppa 12 M.k 404 that a person, who has obtained a patta from Government, would acquire a valid title, in the absence of any fraud on Government or on the defendant, a rival claimant. There may possibly be cases to which that proposition might be applicable. It is possible that a fraud practised on a particular party might entitle that party to oppose the plaintiff's claim to enforce his legal right. But there was no fraud in this case as found by both the lower Courts and we are not able to find any defence to the plaintiff's claim.
3. We must, therefore, reverse the decrees of the lower Courts and give the plaintiff a decree for the recovery of the land sued for. We disallow the claim for mesne profits prior to the date of suit as the claim is not pressed. The lower Appellate Court will hold an inquiry as to the amount of mesne profits which the plaintiff is entitled to from the date of suit to the date of delivery of possession and pass a final order for the amount that may be found due. The plaintiff is also entitled to costs from the defendant throughout on the value of the land.