Abdur Rahim, J.:— In this case the plaintiff sued the Secretary of State asking for a decree declaring his title to a house-site in a certain village, for recovering a certain sum of money which had been levied from him as penal assessment and for a perpetual injunction restraining the defendant from levying any such assessment on the lands in question. The defendant's case was that the land as halmenaha being what is called “potter's inam” does not belong to the plaintiff and that on that ground the defendant was entitled to collect penal assessment from the plaintiff.

2. Both the lower Courts, on a consideration of the evidence, have found that the plaintiff did not succeed in proving the ownership of the land. It is found however at the same time that the plaintiff is in possession of the land and has been so for about three years. He is in possession under two documents of title derived from two persons, Venkatasami and Subarayadu, one of whom at least was in possession of the land. There is no finding by either Court as to whether the land is ashalmenaha or potter's inam or not. They thought that, inasmuch as the plaintiff failed to prove the title of his vendors, the suit must be dismissed. In my opinion that would not be sufficient to conclude this suit. It is found that the plaintiff is in possession of the land and we may take it that he is in possession under a prima facie title derived from parsons in possession of the land. That being so, if the defendant failed to prove that the land was an ashalmenaha or potter's inam, and he had a legal title to it, the plaintiff would be entitled at least to the declaration that he is in lawful possession of the land, to use the language of the Privy Council in Ismail Ariff v. Mahomed Ghous(1). It is contended however by the learned pleader who appeared for the respondent that mere possession is not sufficient to found a declaration of title; and in support of this he cited Hanmantrao v. Secretary of State(2) and Rassonada Rayar v. Sitharama Pillai(3). The ruling in Hanmantrao v. Secretary of State does not, it seems to me, support the contention of the respondent. All that is laid down there is that, if the possession is shown to be wrongful, then the plaintiff would not be entitled to a declaration of title. But here it cannot be said upon the findings as they now stand, that the plaintiff's possession is wrongful. It is not necessary to discuss Rassonada Rayar v. Sitharama Pillai, because, in my opinion, the subsequent judgment of the Privy Council in Ismail Ariff v. Mahomed Ghous is quite clear and conclusive on the point. I may observe that at first I was inclined to entertain some doubt as to whether in a case where the defendant has not actually dispossessed the plaintiff, the plaintiff would be entitled to a declaration of his title on the strength merely of possession not extending over the statutory period. But it seems that the decision of the Privy Council at least goes to the extent that, if the plaintiff has been in possession even though for less than 12 years, he would under Section 42 of the Specific Relief Act, be entitled to a declaration that he is in lawful possession as against a wrongdoer who sought to interfere with his possession. The levying of penal assessment on the land, if it was not justified, would amount to unlawful interference with the plaintiff's possession. Then, apart from the question whether the plaintiff is entitled to a declaration in the terms asked for by him, it seems to ms to be clear that, if the land is not shown to be communal land, the Secretary of State would have no right to collect penal assessment from a person in possession thereof simply on the ground that he is not the legal owner of the land, but somebody else. It thus becomes necessary that we should have a finding on the question whether the land in dispute is ashalmenaha land or not. The finding must be on the evidence on record. The finding will be submitted within three months from the date of this order and ten days will be allowed tr filing objections.

Ayling, J.:— I concur in the order proposed by my learned brother.

3. I am not altogether satisfied that in face of the findings of the Subordinate Judge the plaintiff's prayer for a declaration of title to the suit site is sustainable, although at this stage I am not prepared to differ. On the other hand it seems to me clear that for the disposal of the second and third of the plaint prayers the findings are defective. The right of the Government to levy penal assessments is conditional on the land being communal or, as it is here described, ashalmenaha; and the learned Subordinate Judge seems to have overlooked the fact that, although the plaintiff may not have established his title to the suit land, he may nevertheless claim immunity from penal assessment thereon unless the land is ashalmenaha. There is no finding as to this and a finding on this point indicated by my learned brother becomes necessary.

4. [In compliance with the order contained in the above judgment the Subordinate Judge of Kistna at Ellore submitted the following:]

FINDING

5. I am directed to submit my finding on the evidence on record on the following issue:

Whether the land in dispute is ashalmenaha land or not.

6. The suit site is situated in the village of Vandram. It is deposed to by (P.Ws 1 to 4) and admitted by (D.Ws 11 and 15) that the suit site lies in the middle of the village surrounded by houses. (D.Ws 1 to 10) are admittedly residents of other villages who do not know anything about the suit site. D.W 12 only speaks to his attestation of a certain mortgage document. The only material evidence is that of D.Ws 11, 13, 14, 15 and 16.

7. D.W 11 is G. Venkataswami, who is a resident of Vandram. D.W 11 deposed that plaintiff's vendor Subbarayudu lived in Vandram only for three years on the suit site, but the witness was unable to state in his cross-examination to whom the suit site belonged. The witness stated that the suit site is in the middle of the village and that potters “come and occupy it and go.”

8. D.W 12 did not say anything about the ownership of the suit site. D.W 13, A. Narasimulu, is the most important witness. He was the karnam of the village Vandram for 40 years from 1860 to 1900. The witness deposed that plaintiff's vendor Subbarayadu came to the suit site in 1900 and lived there for three years. The witness further deposed that Snbbarayudu's brother Venkataswami D.W 3, was not known to him. In his cross-examination D.W 13 stated that as he had not reported the encroachment of Subbarayudu when it occurred he (witness) was fined after it was reported by him. I may here observe that the defendant's case as set out in the written statement (vide para. 1), was that the suit site is a portion of an ashalmenaha land set apart for communal purposes. But not a single question appears to have been asked by defendant's vakil about this to defendant's witness 14 in his examination-in-chief and the only facts elicited in his cross-examination by plaintiff's vakil are that “those” who came to live on the suit site were not sircar servants, that they used to live in a paka (shed) on a cent of land and that the potter have a (separate) inam in the village. With reference to this admission of D.W 13 it is argued for this plaintiff that the suit site was not the ashalmenaha land of defendant. It is further argued that if the suit site had really been a part of ashalmenaha the defendant would have certainly produced the accounts showing the ashalmenaha lands. In other words the best evidence would have been the production of the accounts relating to ashalmenaha lands. The non-production of the said accounts is a very strong circumstance against defendant because the presumption is that the production would be unfavourable to him.

9. The evidence of the remaining D. W's 14 to 16 tends to show that the suit site was in the enjoyment of successive potters for a long period before plaintiff's vendor Subbarayudu came to reside on the suit site in 1900. The evidence on plaintiff's behalf is that the villagers introduced the several potters in succession and allowed them to remain on the suit site. It is not proved by defendant that the several potters occupied the suit site with the permission of the village officers as stated in para. 3 of the defendant's written statement. On the contrary the admissions elicited in the cross-examination of the karnam (D.W 13) to the effect that “those who came to live on the suit site were not sircar servants” and that “there was a separate inam for potters in the village” lend strong support to the plaintiff's case that the suit site was in the enjoyment of successive potters who were introduced by the villagers themselves as the site in question did not belong to Government. D.Ws 5 and 6 deposed that the Government had no right to the suit site at any time.

10. Thus with reference to the evidence discussed pro and con in the foregoing paragraphs I hold that the onus of proving that the suit site is a part of ashal menaha lay on the defendant and that this onus has not been discharged. Nothing was elicted in the examination of the karnam D.W 13) as to the right set up by defendant in respect of the suit site as ashalmenaha land. The defendant could have produced the accounts relating to ashalmenaha lands. This would have been the best evidence. But such evidence has not been produced and the karnam himself does not depose that the suit site is a part of ashalmenaha land. I therefore find the issue in the negative.

11. [This second appeal coming on for final hearing after the return of the finding of the lower appellate Court upon the issue referred by this Court for trial the Court delivered the following:]

JUDGMENT

12. There is evidence in support of the finding and we must accept it.

13. A question is now raised for the first time that the cause of action for the recovery of the money was barred by the provisions of Act 3 of 1905; we cannot decide that question in the appellant's favour seeing that neither of the Courts below was asked to consider it.

14. Accepting the finding we reverse the decree of both Courts and declare that the plaintiff is in lawful possession of the land in suit directing the payment to him of Rs. 6-4-0 wrongfully collected from him. The plaintiff's costs throughout should be paid by the defendant. Six months' time will be allowed under S. 82 of the Code.

S.N/R.K

15. Decree reversed.