LexNEDUNURI KAMESWARAMMA versus SAMPATI SUBBA RAO
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lift a .... ,,;, Jt.J l'e.111'i¥4 •• .J. K. ·1tdl JI ilu C •. -'t4., K•npw H i4~tt.llaA J . llll - 4prtJ 17: 208 SUPREME COURT REPORTS [1963] sought is in reapeot of execution against tbe per- sonal property of Buch partner and the leave that is granted or refused affect only Buch property and not the prop,,rty of the firm. Ordinarily, when the person summoned admits that be is a partner, leave would be granted, unless he alleges coHueion, fraud or the like. No such question has been raised in this case, and the decision given by the High Court connot be disturbed. · The appeal fails, and is dismissed with costa. Appeal dismisat.d. NEDUNVRIKAMESWARAMMA v. SAMPATI SUBBA RAO (S. K. D.a.s, M. HIDAYATULLAH and J . c. SHAH, JJ.) FknJing-WritUn atatement not trat:erred-Rtlnant W..e n,,, railed but material etmknce led by ,,,artiP.a-Efftd-Con1- trudio11 or d,cvmrnl, when involvea ~e of law-Kanai/cam 1erviu inam -Dumbala Dharmila inam-Madraa Fermanent Settk1i.ent Regulation of 1802 ( M odraa Rtgulation 25 of 1802; -Madraa KarnatM Regula.lion 1802 (Madrcu /frgulation 29 of 1802)-MadrlU Hertditar1 Villagt OJJiua Act, 1895 (Mad. III of 1895). TM. MadrtU Proprietary E11taU'1 Village Service Act, 1894 (Jlacl. II of 1894) •· 17. The appellant 6lcd a suit for ejcctment of the respondent from 4·80 acres of jeroyti land and for mcsnc profit, which wa1 based on a kadapa executed by the respondent in 1951, agreeing to pay an annual rent, and to vacate the land pracc- fully at the end of the year of tenancy. Similar kadapaa were executed in earlier yean. The respondent denird that the land was jeroyti land aod alleged that it was a part of Dliar- milca inam \and granted to his predecessors more than I 00 years &JfO though m1"hilaktu were taken every year, and claim- ed hdiK'Of'Om rights for him~lf. He contended that the appellant had only melwaram rights which ahe had lost a1 they ' • -- 2 S.C.R. SUPREME COURT REPORTS 209 became vested in t!,e Government after the Estate Abolition Act. The appellant did not seek permission of the court to file a rejoinder to the pleas of the respondent, and the trial proceeded without raising any issue with regard to the subject of Dharmila inam. The trial court found that the land was originally karnikam service inam, which was resumed by the Zamindar in 1925 and regranted as jeroyti land. On appeal a ·ground wa1 raised that the respondent was prejudiced because the decision was given without any pleas or isst1e that the land was a Karnikam service inam. The first appellate court found against the respondent but the High Court held that the suit deserved to be dismissed , on the short ground that the decision of the two courts below proceeded on a matter not pleaded or raised as an issue; and held further that the 'land was a Karnikam service inam and dismissed the suit. The appellants came up by special leave to the Supreme Court. The questions are : (a) whether the suit should be dismissed on the ground or want or proper plea by the appel- lant in answer to the written statement and (b) whether the decision that this was not a Karnikam service inam is proper in the circumstances of the case. Held, that since each party went to trial fully knowing the rival 'case and Jed all the evidence not only in support of its own contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings, and the case could not be decided on this nanow ground. After the passing of Madras Act II of 1894, Karnamas were to be paid in cash and s. I 7 of the Act enabled the enfranchisement of lands granted on favourable terms to the Karnama&; Such lands could be granted for village service either by the State or by the proprietor. The gist of s. 17 was that lands granted for the rem9neration of the Karnamae were to be restimed by the State if granted by the State, and by the proprietor, if granted by the proprietors and the second proviso to s. 17 was not limited to village artisans or village servants doing· private service but embraced other village servants like Karnamae and others. Held, that from 1903 'to 1925 the suit land was treated as held on Karnam service inam liable to be resumed bv the i, Zamindar, that in all the subsequent documents, it. was -:i.. described as jeroyti land, and that the land was held as
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