1. This is an appeal from the judgment of the Subordinate Judge of Viza-gapatam. The plaintiff, who is the zemindar of Peda Merangi, sued the Secretary of State and the ryots of the hamlet of Gadabavalasa for possession of the village and for mesne profits for three years, on the ground that this village had been granted to the ancestors of defendants Nos. 2 to 13 as a service inarm, the service being that of palanquin-bearers to the zemindar, and on the ground that the services were no longer being rendered and that he was entitled to resume the village. He joined the Government as a defendant, because, as alleged in paragraph III () of the plaint, ' while the plaintiff was a ward (of the Court) the Government treated the suit lands as at their disposal and granted jeroyiti pattas to the defendants Nos. 2 to 13 for these lands, freeing them from the burden of service, and placed the defendants in possession thereof. In other words, he alleged that during his minority the Government had purported to resume this village as not included in the zemindari and to grant pattas to the defendants Nos. 2 to 13 reserving the full assessment, whereas the plaintiffs' case is that this village was included in the zemindari at the Permanent Settlement and Government has no right to interfere with it.
2. Taking the case first as between the plaintiff and the first defendant, the Secretary of State, the Subordinate Judge has found that the assets of the zemindari, upon which the peishkush was fixed in the year 1802, included the demand of Rs. 100 from this village and that finding is borne out by the evidence, because we have the accounts of 1797, 1798 and 1799, Exhibits O, 01, 02, and P upon which the peishkush was settled, and in each of these accounts we find included a demand of Rs. 100 in respect of this village. In respect of certain other lands situated in the ambit of the zemindari, certain alienated villages and certain inams, we find that deductions were made, but no such deduction was made in respect of this village or the peishkush payable in respect of it. It follows, therefore, that the peishkush was settled having regard to the income derived from this village, and that this village must be taken to be included in the zemindari. At the name time it appears also in evidence that the Rs. 100 which was payable to the zemindar from this village was not actually paid to him, but that the ryots were allowed to retain it as payment for the service of palanquin-bearing which they rendered. That, however, was a matter between the zemindar and the ryots, and in no way affects the inference to be drawn from the fact that the Government included the demand in the assets of the zemindari when settling the peishkush. The Subordinate Judge, for reasons which we are not very well able to appreciate, has come to the conclusion that the entry of the Rs. 100 was fictitious; but we do not see how the entry can be said to have been fictitious, as it was not subsequently deducted as were some other items, but formed part of the amount on which the peishkush was fixed. One of the documents on which the Subordinate Judge relies, Exhibit M, so far from bearing him out, rather tends in the opposite way. Exhibit M, which is the final report of the Collector, says that in consideration of the difficulty which the zemindar had in paying the peishkush and his embarrassed circumstances and the unfavourable predicament which the zemindar found himself in owing to unfavourable seasons and also in consideration of his being subject to a considerable charge for ready money allowances to peons, the peishkush should not be fixed at the full figure of two-thirds of the total demand but at a smaller figure. This very passage shows that these payments to peons were not excluded from the settlement, but were treated as payments which the zemindar would be obliged to incur out of the total demand, and it shows that demand such as this, where the demand was returned in the shape of remuneration to peons and others, was taken into account infixing the peiahkush. We think that in this case, upon the findings of the Subordinate Judge, it is clearly shown that the demand of this village was included in the assets of the zemindari upon which the peishkusjj, was fixed. That is proved by positive evidence in this case. But we have been also referred to cases in which it has been held that, even where there is no positive evidence of that, it may be inferred from the nature of the services which are remunerated in this way, that is to say, from the fact that they are private services. These are Sree Rajah Venkatarangayyah v. Poranki Appalarazu 8 Ind. Cas. 546 : 20 M.L.J. 728 : 8 M.L.T. 429 and Sri Raja. Parthasarathy Appa Rao v. Secretary of State for India 21 Ind. Cas. 871 : (1913) M.W.N. 959 : 14 M.L.T. 514 : 26 M.L.J. 39. We think that the present case would fall within these authorities, because upon the evidence we have come to this conclusion that this palanquin service is a private service and it is nowhere alleged in the pleadings or in the evidence to be a public service. However, we need not, as we said, rely upon any presumption in this case, because we have positive evidence. The authorities are clear that where the service is private service, the right of resumption is in the zemindar and not in Government.
3. As regards limitation we do not think that Article 14 has any application to this case, and it is sufficient to say that it is not shown that the zemindar was a party to the proceedings for the resumption, even if that would be sufficient to bring the case within the Article, and if the order was anything more, than a nullity.
4. As regards the relief of possession sought against the tenants they have not contested the plaintiff's claim, being apparently disposed to make common cause with the plaintiff against the first defendant. During the hearing of the appeal, however, the appellant's Vakil has stated that his client does not desire to eject the defendants, but is content to resume the moloaram of the village and leave them in possession of the kudivaram or occupancy right. In these circumstances all we can do in the present suit is to declare the plaintiff's right to the melvaram, leaving him to have the rent ascertained in a proper proceeding. We. must reverse the decision of the Subordinate. Judge and declare that the alleged enfranchisement by the Government is void as against the plaintiff, and also declare that the plaintiff is entitled to the melvaram rights of the village as against the other defendants.
5. The plaintiff has failed in his demand for mesne profits against the Government as he has not shown any cause of action against the Government in respect of mesne profits. In these circumstances we direct that both parties, that is, the plaintiff and the 1st defendant, should pay and receive proportionate costs. As regards the other defendants we make no order as to costs.