Charles Gordon Spencer, J.
1. The plaintiffs sued to recover possession of Survey No. 33a and another land of Laveru village in the zemindari of Vizianagaram and they made the trustee of the Vizianagaram estate, the first defendant and the tenants in occupation of Survey No. 339, defendants Nos. 2 to 12. The Subordinate Judge dismissed that suit against defendants . Nos., 2 to 12 on the ground that they had acquired an occupancy right on the coming into force of the Madras Estates Land Act, and he also rejected the plaintiffs' claim to recover possession of Surrey No. 339 as against the first defendant, but he gave them a declaration that they are entitled to the melvaram of landholder's right in the survey number as against the first defendant and a decree for recovery of rent for three 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 Nos. 2 to 12, as sarvadumbala inam to first 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 first defendant appealed against that order but his claim was rejected by the Assistant Superintendent of Survey. The plaint goes on to allege that the first defendant trespassed on the suit lands and took lease deeds from the other defendants in 1906 and collected rent 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 Nos. 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 first defendant admittedly was not in actual possession of Survey 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 first defendant that they were entitled to the melvaram right in Survey No. 339and to recover the rents paid to him by defendants Nos. 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 Ex. G, in 1905, was final as between the plaintiffs and the first defendant, seeing that the first defendant did not bring a suit within one year of the decision, as provided by Section 13 of the Survey and Boundaries Act.
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 the first 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 B0 years, whereas the heading to Ex. XXIII (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 right claimed in respect of the boundary of the property surveyed; but the section requires that the party should be a party to the 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 Full Bench case of Muthirulandi Poosari v. Seethurama Aiyar : (1919)36MLJ356 and in Subramania Mudali v. Meenakshi Ammal : AIR1922Mad392 . The observation in Batchu Chinna Venkatarayudu v. Durvuri Ramamurthi : AIR1921Mad63 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 of India 11 M 309 : 4 Ind. Das. 215 and Muthammal v. Secretary of State 26 Ind. Cas. 817 : 39 M. 1202 : 27 M.L.J. 529 : 16 M.L.T. 432 quoted for the respondents, were decisions in respect of orders passed under the Madras Forest Act V of 1882 and under the repealed Boundary Marks Act XXVIII 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. 23) purports to have confirmed the demarcation of the land, and the complaint which gave rise to it speaks of Survey No. 339 as having been wrongly 'demarcated' as jerayati land. Both the Courts below were somehow of opinion that the effect of the Survey Officer's order was to alter the demarcation of the disputed laud and to exclude it from the zemindari 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. In my opinion, this 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 zemindari and nobody even in second appeal has questioned the correctness of-the boundaries of Survey No. 339. Any order that the Survey Officer might pass could not have the effect of making the inam land excluded from the zemindari at the time of the Permanent Settlement, nor could it operate as a recognition of the first 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 jerayati land, but Act IV of 1897 does not authorise 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 zemindar 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 Nos. 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 first defendant, as such, on the ground that he had wrongfully collected it from defendants Nos. 2 to 12 because, as against defendants Nos. 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 first defendant, seeing that he was not in possession of the land and that the lower Courts found that the plaintiffs were not entitled to eret possession of it.
6. 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 recover 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 of the emoluments of office from any person in whose possession they might be. As such, the suit would have to be filed before a 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 first plaintiff would have to establish as a preliminary point that he was the karnam in office entitled to these emoluments.
7. As the Assistant Superintendent of Survey who made the order (Ex. G and XXIII) had no jurisdiction to declare the first plaintiff to be entitled to the status of melwaramdar and as the decrees of the lower Courts for recovery of three years' rent from first 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.