Decided on November 22,1963



- (1.) This is a plaintiff's appeal against the Judgment of the Subordinate Judge Nizamabad, in O.S. No.31/1 of 1957. The suit was for a declaration of the plaintiff's title to the Police Patel watan of Sirnapalli village. The plaintiff', case was that, his father was the incumbent of that watan and that on his death succession to the watan was granted in his favour by the jagirdar. In 1950 he applied to the Tahsildar for permission to appoint a Gumastha. That application was allowed by the Tahsildar. An appeal was filed by the present defendant- respondent against the Tahsildar's order to he Collector. That appeal was allowed and the matter was remanded to the Tahsildar for fresh enquiry.
(2.) On 22nd Decembe, 1954, the Tahsildar eventually dismissed the plaintiff's application for permission to appoint a Gumastha in respect of the Police Patel watan. Thereupon the plaintiff preferred an appeal to the Collector which was dismissed on 27th July, 1957. But while dismissing the appeal, the Collector stated that since there was a dispute between the parties before him, namely, the present plaintiff and the present defendant, as to who was entitled tc the watan, they must resort to a civil Court for final adjudication of the dispute. Accordingly on 24th August, 1957, the plaintiff instituted the suit out of which this appeal arises. The defendant resisted the suit on the ground that the plaintiff had no tide to the watan and that the defendant was the watandar. He further pleaded that the suit was barred by limitation because the plaintiff was never in ossession of the watan and never enjoyed its emoluments. The Court below framed the following issues : (1) Has the plaintiff succeeded to the watan of his father and this has been sanctioned by the Samasthandara Chillam Janka Bai, the ancestor of the defendant ? (2) Is the plaintiff in rightful possession of the ' watan ' ; if the answer to this is in the affirmative, what is the effect of the decision of the Court of Revenue that the defendant is in possession ? (3) Is the suit within limitation ? (4) To what relief are the parties entitled ?
(3.) In the concluding paragraph of his judgment, the learned Subordinate Judge held all the issues 1 to 3 against the plaintiff and therefore dismissed the suit. This has led to the present appeal. I must state at the outset that the learned counsel for the appellant as well as the learned counsel for the respondent, very fairly and frankly conceded before me that except on the issue of limitation, the Court below cannot be considered to have decided any other issue in the suit. In other words, it is common ground before me that neither issue I nor issue 2 framed in the suit was properly gone into, considered of found on by the lower Court. Therefore, I must clear the ground at the outset by stating that whatever has been observed by the Court below in respect of issues 1 and 2 must be held to be insufficient and incorrect for the purpose of this appeal and that this appeal must proceed on the footing that in the eyes of law issues 1 and 2 have not been decided by the lower Court and are still open to be decided afresh by it.;

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