SREE RAJA RAO VENKATA KUMARA MAHIPATHI SURYA RAO BAHADUR GARU, RAJAH OF PITHAPURAM Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF GODAVARI

JUDGEMENT

(1.) The plaintiff is the Rajah of Pittapur. The defendant is the Collector of Godavari representing the Government. The subject of this suit are certain puntas used as paths by men and cattle in the village of Mummidivarappadu which forms part of the Palivela Estate acquired by purchase and testamentary disposition by the plaintiff's predecessors. No members of the village community that use these paths in exercise of their communal rights have been made parties to the suit. The inclusion of the Government as a party can only be justified on one of three theories (1) that the pathways were excluded from the permanent settlement and belong to the Government (2) that the Government is the custodian of the communal rights of the public in respect of these paths, vide Venkatarama Sivan V/s. Secretary of State for India (1918) 36 MLJ 203 and (3) that the Government has unauthorisedly levied penal assessment under Act III of 1905.

(2.) The plaintiff (appellant) does not admit the first theory as it would be fatal to his suit to obtain a declaration of title.

(3.) As regards the third theory, the assessment was levied from the occupants in 1914 according to the allegation in the plaint. This circumstance will not give a right of action to the plaintiff who did not pay anything. Moreover the limitation period for persons aggrieved by proceedings taken under that Act is six months under Section 14 and that period was long past when this suit was filed in 1918. It came out in the evidence that the plaintiff's Dewan had been served with a preliminary notice under Section 7 to show cause why he should not be made to pay prohibitory assessment under Section 5 or be summarily evicted under Section 6, but it has been held in Secretary of State V/s. Assan (1915) ILR 39M 737 : 30 MLJ 255(FB) by a Full Bench that notices under Section 7 do not give rise to a cause of action.