JUDGMENT :- The plaintiff in a suit for partition, which has been dismissed, by both the lower courts, is the appellant and the 1st defendant the contesting respondent. The short question for decision is whether the appellant is entitled to any share in the suit property.

2. The suit property was originally kumki land and it was granted on darkhast to the 1st respondent. The appellant claims a share in the property on the strength of a recital in Ex. A1 of 17th April 1944, which is a partition agreement in his family, to which both the appellant and the 1st respondent were parties. The suit property did not belong to the family, but there is some recital regarding that in the document. The recital is to the effect that the sharers under Ex. A1 have a right to take water from a tank in the suit property, whereon the appellant and the 1st respondent had effected improvements. Barring this recital there is no other evidence to support the case of the appellant that he has right in the suit property. Therefore, both the lower courts have dismissed the suit.

3. The learned advocate of the appellant argues that the recital in Ex. A1 is an admission and therefore it has to be given its due weight and should not be brushed aside lightly, when the exclusive right claimed by the 1st respondent is considered. Putting in that form the argument probably may have some force. But, the circumstances of the case, which will come out presently, will not support this contention.

4. As already stated, the property was given on darkhast by the Government to the 1st respondent. Ex. B3 is the statement given by the 1st respondent before the Tahsildar in connection with the darkhast enquiry, wherein he states that he made all the improvements on the land and was therefore entitled to the darkhast grant. It is admitted by the appellant when he is examined that at the time when the 1st respondent gave Ex. B3, the appellant was present and that he did not raise any objection to the statement. It was only in pursuance of this statement and after due enquiry that the Tahsildar recommended the grant of darkhast in the name of the 1st respondent and ultimately the Government granted it also.

5. The effect of a grant on darkhast of kumki land in South Kanara is laid down by a series of decisions of the Madras High Court. In M. Rama Rao v. Appu. AIR 1925 Mad 1226, the Madras High Court reviewed some of the earlier decisions and held that when the Government granted kumki land on darkhast, any right previously granted by the wargdar in favour of a tenant regarding the kumki land came to an end and even if there was a mortgage right on the kumki land created by the wargdar, it also came to an end as soon as the grant of darkhast was made. In the case before me the disputed land was kumki land; and the Government granted darkhast in favour of the 1st respondent. The result is that all previous rights subsisting on the said laud in favour of anybody came to an end and the grantee under the darkhast obtained his right free of all such previous rights. Naturally, if the appellant had any right on the land previously, that right must have come to an end on the grant

of darkhast.

6. Appellant's learned counsel then invites my attention to the earlier case in Kodi Shankara Bhatta v. Moidin, 8 Mad LW 100 : (AIR 1919 Mad 121) relied upon in the case cited above. An argument was advanced in the earlier decision that Section 90 of the Trusts Act would apply to the facts of that case; and in disposing of that question the learned Judges made an observation, to which my pointed attention is drawn by the counsel of the appellant. The passage is to the effect that if it was the mortgagee instead of the mortgagor that obtained the grant of the neighbouring waste land from the Government, there might have been some force in the contention that Section 90 of the Trusts Act applied. The counsel argues from this that if in that case it was the mortgagee who claimed the right rather tha

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