1. The, first point urged in this second appeal is that the District Judge was not justified in finding, that the land in dispute was old waste on the ground that the defendant devasthanam did not raise, the question specifically in the written statement. No doubt the written statement does not raise the question, but there is evidence on record to justify the finding of the learned District Judge and this being a question of fact, I am bound by that finding. Even though the point was not specifically raised in the written statement, in the pleading or in issues, yet both the parties seem to have adduced evidence as regards that and the matter was evidentially argued before the learned Judge and he came to the conclusion, that the land was old waste. That being so, I do not think the plaintiff has been prejudiced by the finding of the Judge.
2. The next point urged by Mr. Ramasami Iyer is that the plaintiff acquired occupancy right by reason of 6 Section 46 of the Estates Land Act. His contention is that one Sundararama Sastri was the trustee at the time and he took a nazzar of Rs. 175 and granted the land to the plaintiff with occupancy right. There is nothing specific in the evidence to show that Sundararama Sastri save occupancy right. Granting for the sake of argument that he did intend to give occupancy right to the plaintiff, the question is whether he had the right to dispose of the devasthanam land in a manner prejudicial to the interests of the devasthanam. Sundararama Sastri happened to be the acting manager on account of the suspension of the manager one Anantha krishna Naidu. Ananthakrishna Naidu filed a suit contesting the validity of the suspension order and the suspension of Anantha krishna Naidu was held to be illegal by the Civil Courts. During the pendency of the proceedings in the Civil Court Sundararama Sastri placed the plaintiff in possession of the plaint land. That he received a nazzar is not seriously disputed though the defendant does not admit that proper pattahs were tendered to the plaintiff. But the real questionis whether Sundararama Sastri had the right to grant occupancy right over the devasthanam lands in favour of the plaintiff. Under Section 46 the landlord could confer occupancy right in respect of non-ryoti land on receiving 21/2 times the rent. But Clause (5) of Section 46 says 'The sums payable under this section for the acquisition of the occupancy right shall be; paid to the landholder who is the owner of the estate or part thereof, and any application or proceeding under this section shall be made only to or against such landholder.' Though the term landholder may for certain purposes include Sundararama Sastri who was collecting the rents and who was recognized by the Collector, and the Board, yet in order to enable the ryot to get occupancy right under Section 46 the act imust be the act of the landholder who is also the owner of the estate. Under the definition of the term 'landholder' one need not be the owner of the estate in order to be the landholder, for a person authorised to collect rents of the whole Or portion of the estate by virtue of any transfer from the owner is landholder within the meaning of the term landholder used in Section 3. But there are certain things which can be done only by the landholder who is also the owner. Section 200 is an example of this. I, therefore, hold that though Sundararama Sastri was landholder for certain purposes he was not the owner of the estate and he could not, therefore, have given occupancy right to the plaintiff. The argument of Mr. Ramasami Iyer is that somebody must represent the devasthanam and, therefore, he must be taken to be the owner. This contention overlooks the fact that Sundararama Saatri could not properly represent the devasthanam as its manager for the time being, as the suspension of Anantha krishna Naidu was held to be invalid by the Civil Courts. When there is the proper manager or trustee, a person who is appointed improperly in his place cannot be the real, trustee and cannot represent the estate. That being so, the act of Sundararama Sastri infavour of the plaintiff could, not confer any right as against the devasthanam. In the result the appeal is dismissed with costs.