Judgment

WANCHOO, J. : This is an appeal on a certificate granted by the former High Court of Hyderabad. A suit was brought by the respondent in 1920 with respect to village Timmapet. The case of the respondent was that the village had been granted to his ancestor Harinarayan alias Raja Nemiwant Bahadur by the Nizam in 1787. On the death of Raja Harinarayan, the village was conferred by another sanad on his son Raja Govind Narayan in 1811. Ever since then the village had continued in the possession of the descendants of Raja Govind Narayan. In 1817. Raja Govind Narayan granted this village on Tahud (i.e. lease) to Raja Rama Krishna Rao, ancestor of the defendants. Inam inquiries with respect to this village started in 1901 and then an objection was made on behalf of the appellants that the village had been granted to their ancestors by the Nizam and the respondent was only entitled to the pan mukta of the village and no more Pan mukta means a fixed sum which is payable in perpetuity for any land granted by the Ruler or the jagirdar to any person. The respondent s case further was that the lease money was being regularly paid, though sometime before the suit there was some default. The respondent had to file a suit to recover the lease money which was decreed and the decretal amount was recovered. In 1917 disputes arose between the parties and consequently in 1918 the respondent asked the appellants to vacate the village. They, however, refused to do so. Thereupon the present suit was filed in 1920 and the respondent s case was that the lease granted to the appellants was not a permanent lease and could only ensure for the lifetime of the grantor and therefore the respondent was entitled to possession of the village, particularly as the appellants had begun to assert a title adverse to the respondent.

2. The suit was resisted by the appellants and their main defence was that the village had been granted as bilmakta with a fixed pan makta in their favour by the Nizam and therefore the respondent was only entitled to the fixed pan makta per year and could not claim to dispossess them from the village. As an alternative, defence of limitation was also pleaded, though the written statements did not make it clear whether the bar of limitation was under Art. 142 or Art. 144 of the Limitation Act. There were other defences also with which we are however not concerned in the present appeal.

3. The trial court framed a large number of issues, which were answered in favour of the respondent and the suit was decreed and the plaintiff was held entitled to obtain possession of the village as well as to recover mesne profits at the rate of Rs. 931/12/- O. S. per year. On the two main defences, the trial court held that the village had not been granted by the Nizam to the appellants as claimed by them and the appellants were liable to ejectment as they could not claim the rights of a permanent lessee under the lease granted to their ancestor by the respondent s ancestor. Further on the question of limitation, the trial court held that the suit was not barred by Art. 142. It does not appear that the case of adverse possession was put forward in the trial court.

4. There were two appeals to the High Court; one of them was by the appellants and the other by the respondent. The respondent s appeal was confined only to the rate of mesne profits while the appellants reiterated their two main contentions as to the nature of their right and limitation. The appeals were heard by a Division Bench of the High Court, the Judges composing which however differed. Schripat Rau, J., agreed with the trial court as to the nature of the rights of the respondents as well as on the question of limitation and was of the opinion that the appeal of the appellants should be dismissed. It appears that in the High Court a plea of adverse possession was also raised in the matter of limitation : but that plea was also negatived by Schripat Rau, J. Further Schripat Rau, J., w