1. The plaintiffs sued to recover possession of Survey No. 339 and another land of Laveru village in the Zamindari of Vizayanagaram and they made, the trustee of the Vizayanagaram estate, the 1st defendant and the tenants in occupation of S. No. 339, Defendants 2 to 12. The Subordinate Judge dismissed the suit against Defendants 2 to 12 on the ground that they had acquired an occupancy right on the coming into force of the Midras Estates Land Act and he, also rejected the plaintiff's claim to recover possession of S. No. 339 as against the 1st defendant, but he gave them a declaration that they are entitled to the melwaram of landholder's right in this survey number as against the 1st defendant and a decree for recovery of rent for 3 years prior to suit. In appeal the District Judge confirmed the decree of the lower Court.
2. The plaintiffs' alleged in their plaint that about 1820 A.D. which was 'after the Permanent Settlement, the suit land was granted by the villagers of Laveru who were the predecessors-in-title of Defendants 2 to 12 as sarvadumbala inam to 1st plaintiff's grandfather in lieu of the customary fees (rusums) which they were paying for his service. In 1904 the village was surveyed and the suit land was demarcated as mirasi inam. The 1st defendant appealed against that order but his claim was rejected by the Assistant Superintendent of Survey. The plaint goes on to allege, that the 1st defendant trespassed on the suit land and took lease deed from the .other defendants in 1906 and collected rents from them subsequently. On these allegations, the plaintiffs claimed to be put in possession of the properties together with mesne profits for three years.
3. The Subordinate Judge, besides holding that Defendants 2 to 12 had acquired occupancy rights, found that the plaintiffs had not proved their own possession within 12 years of the suit. He rightly rejected the plaintiffs prayer for a decree for possession as the 1st defendant admittedly was not in actual possession of S. No 339 and the plaintiffs failed to prove that he had trespassed upon it as alleged in the plaint. He then proceeded, without any amendment of the plaint, to give the plaintiffs a declaratory decree against 1st defendant that they were entitled to the malwaram right in S. No. 339 and to recover the rents paid to him by Defendants 2 to 12 for three years prior to suit in spite of the fact that such a claim altered the character of the suit. The District Judge was of opinion that the decision of the Settlement Officer in Ex. G, in 1905, was final as between the plaintiffs and the 1st defendant seeing that the 1st defendant did not bring a suit within one year of the decision, as provided by Section 13 of the Survey and Boundaries Act IV of 1897.
4. The District Judge, however, held that the Assistant Superintendent's order was erroneous, because he assumed that the inam was a pre-settlement inam. The admission of 1st plaintiff, who was respondent in those proceedings, that the land had been enjoyed as ryoti land for 20 years negatived any such possibility and his present plaint treats it as a post-settlement grant. The order appears to be further based on a mistaken impression that the Government was a party to the complaint under the Survey and Boundaries Act as the limitation period for acquiring a prescriptive title is taken to be 60 years, whereas the heading to Ex. (a) shows that this was not the case.
5. Under Section 13 of the Madras Act IV of 1897, a decision of a Survey Officer under Section 12 becomes final if no suit is brought within one year to establish the rights claimed in respect of the boundary of the property surveyed; but the section requires that the party 3hould be a party to a boundary dispute or some person claiming under him, and that the right he claims must be in respect of the boundary of the property surveyed. This point is clearly brought out in the Pull Bench ease of Muthirulandi Poosari v. Sethuram Aiyar  42 Mad. 425 and in Subramania Mudali v. Meenakshi Ammal A.I.R. 1922 Mad. 392. The observation in Chinna Venhatrayudu v. Bamainurti  44 Mad. 340 that landholders are not altogether precluded from afterwards disputing the correctness of the boundary in a Court of law reads like an attempt to whittle down the meaning of the word 'conclusive' in Section 13. The cases of Kamaraju v. Secretary of State for India  11 Mad. 309 and Muthammal v. Secretary of State for India  39 Mad. 1202, quoted for the respondents, were decisions in respect of orders passed under the Madras Forests Act V of 1882 and under the repealed Boundary Marks Act 28 of 1860, which provided for the investigation of other claims and the adjustment of other disputes besides those connected with the physical boundary of lands. The Survey Officer's decision (Ex. XXIII) purports to have confirmed the demarcation of the land, and the complaint which gave rise to it speaks of S. No. 339 as having been wrongly 'demarcated' as jeroyati land. Both the Courts below were somehow of opinion that the effect of a Survey Officer's order was to alter the demarcation of the disputed land and to execlude it from the zamindari limits although somewhat inconsistently the Subordinate Judge applied to it the provisions of the Madras Estates Land Act, which relate only to lands situated in an estate as defined in Section 3(2) of that Act.
6. In my opinion, that is not the real effect of the order. The land in dispute both at the time of settlement and since has continued to be within the ambit of the zamindari and nobody, even in second appeal has questioned the correctness of the boundaries of S. No. 339. Any order, that the Survey Officer might pass could not have the effect of making this inam one excluded from the zamindari at the time of the Permanent Settlement, nor could it operate as a, recognition of the 1st plaintiff's title to the office of karnam or his right to-claim this land or the profits of it as part of the village karnam's emoluments. The effect of his order right or wrong, was to register as a Government service inam this land, which had hitherto been enjoyed as jeroyati land but Act IV of 1897 does not authorize a Survey Officer to do anything of that sort. As the District Judge noticed, the Survey Officer's decision was an erroneous decision, and although his order would be binding upon the zamindar or his representative in interest if the boundary were in dispute, seeing that he did not bring a suit within the limitation period, it could by no means bind Defendants 2 to 12 who were not parties to it; and there was no good reason for giving the plaintiffs a declaratory decree on the strength of an erroneous decision of a Survey Officer upon a matter which he had no jurisdiction to deal with. The plaintiffs are not entitled to recover melwaram from the 1st defendant, as such on the ground that he had wrongfully collected it from Defendants 2 to 12, because, as against Defendants 2 to 12 the plaintiffs are not entitled to recover melwaram unless they first establish their title to be regarded as the owners of the melwaram, i.e., as landlords. The plaintiffs could not legally be awarded mesne profits against 1st defendant seeing that he was not in possession of the land and that the lower Courts found that the plaintiffs were not entitled to get possession of it.
7. Moreover, the Survey Officer's decision, Ex. XXIII was to the effect that the land was a Government service inam and, therefore, presumably one forming part of the emoluments of the village karnam. If the plaintiffs' object was to rec6ver the rent of the land as emoluments of the Karnam's office, they should have brought their suit under Madras Act III of 1895 to recover under Section 13 the emoluments of office from any person in whose possession they might be. As such, the suit would have to be filed before the Revenue Court, as Section 21 of that Act excludes the jurisdiction of civil Courts except in respect of suits to recover the land itself. In such a suit the 1st plaintiff would have to establish as a preliminary point that he was the karnam in office entitled to those emoluments.
8. As the Assistant Superintendent of Survey who made the order Exs. G and XXIII had no jurisdiction to declare the 1st plaintiff to be entitled to the status of melwaramdar and as, the decrees of the lower Courts for recovery of 3 years' rent from 1st defendant were based merely on an order of a Survey officer found to be erroneous and without finality, the second' appeal must be allowed and the plaintiffs' suit dismissed as against the appellant with costs throughout.