SRI RAJAH SAHEB MEHARBAN-I-DOSTAN SRI RAJAH RAVU VENKATAKUMARA MAHIPATI SURYA RAO BAHADUR GARU SIRDAR, RAJAHMUNDRYCIRCAR AND MAHARAJAH OF PITTAPURAM Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR

JUDGEMENT

(1.) These three appeals arise out of separate suits instituted by the appellant with the object of establishing title to certain lankas, or alluvial islands; in the river Goda-yari. In O.S. No. 52 of 1936, out of which Appeal No. 89 of 1937 arises, the appellant claimed the ownership of eighteen lankas, but only succeeded in respect of two of them. The suits out of which Appeals Nos. 151 and 152 of 1938, arise were dismissed in their entirety. All the suits were tried together by the Subordinate Judge of Cocanada and were decided in one judgment. In Appeal No. 89 of 1937 the respondent has filed a memorandum of cross objections which challenges the correctness of the Subordinate Judge's decision that the appellant had established ownership of two of the lankas. It is common ground that if the questions of law which arise in Appeal No. 89 of 1937, are decided against the appellant, Appeals Nos. 151 and 152 of 1938, must fail. In the circumstances this judgment will be confined to the main appeal until all the questions arising therein have been dealt "with.

(2.) The appellant is the proprietor of the ancient Zamindari of Pittapuram in the Godavari District of the Madras Presidency. The Zamindari was included in the Permanent Settlement of 1801, and on the 5 May, 1803, a sanad was issued by Lord Clive, the Governor in Council of Fort Saint George, confirming the holder's rights in the lands forming the estate. The document, however, did not define the lands, but it is conceded on behalf of the respondent that they must have included the lanka lands of the village of Mulakallanka which was, and still is, situate within the banks of the river. In 1861, the Revenue Department of the Government surveyed this part of the river, and the plan prepared as the result recognised that the appellant was the owner of certain of the lankas then in existence. It is common, ground that the eighteen lankas in dispute in Appeal No. 89 of 1937, were not then in existence. They had, however, all appeared by 1901, when the River Conservancy authorities made, a survey of the river. In a river like the Godavari lankas sometimes appear suddenly, but whether the disputed lankas were formed suddenly or gradually is not to be gathered from the evidence. All that we have is that they were there in 1901. It is also common ground that after their formation the appellant took possession of them and leased to tenants those portions which were fit for cultivation. In 1921, the Lanka Inspector prepared a new. plan, and as the result the appellant was called upon to show cause why he should not be proceeded against under Secs.5 and 6 of the Madras Land Encroachment Act for unauthorised occupation of the disputed lankas. Lengthy correspondence followed between the appellant and the Collector of East Godavari without the appellant being able to convince the Government that his claims were well founded and on the 14 February, 1927, the Collector demanded the sum of Rs. 1,16,229-2-8 as the revenue assessed upon these lands for the years 1917 to 1926, and payment was enforced, On the 26 June, 1927, the appellant was, called upon to vacate the disputed lankas and was informed that in default he would be summarily evicted. Thereupon the appellant filed a suit claiming, (1) a, declaration of his title, (2) the refund of the Rs. 1,16,229-2-8, and (3) an injunction restraining the respondent from evicting him. The suit was originally filed in the Court of the District Judge of East Godavari and numbered O.S. No. 22 of 1927, but in 1929, it was transferred to the Court of the Subordinate Judge of Bajahmundry and in 1936, to the Court of the Subordinate Judge of Cocanada. The reason for the second transfer was that the Principal Subordinate Judge of Rajahmundry had begun the hearing, but had not completed it before he himself was transferred to Cocanada. In the Cocanada Court the suit was re-numbered O.S. No., 52 of 1936.

(3.) In this part of the river there is a large lanka known as the Pedda lanka, the southern portion of which belongs to the Zamindar of Pittapuram and the northern portion to another proprietor. This lanka was in existence in 1874 and in that year a dispute arose between the two proprietors with regard to the boundary. The dispute gave rise to a suit in the Court of the District Judge (O.S. No. 3 of 1874). The dispute was settled by the District Judge drawing a line between a point on the western bank and a point on the eastern bank. In 1896, there was a boundary dispute in respect of a lanka lying some distance south of the Pedda lanka. On this occasion the disputants were the Zamindar of Pittapuram and the Government. This dispute was settled by the Sub-Collector in a similar manner. The lankas now in suit lie within the lines drawn by the District Judge and the Sub-Collector. The appellant claims that he is entitled to all the lankas which fall within the area bounded on the north by the line drawn by the District Judge, in O.S. No. 3 of 1874, on the east by the eastern bank of the river, on the south by the line drawn by the Sub-Collector in 1896, and on the west by the western bank of the river. In the first place, the appellant bases his claim on the fact that he is the owner of the lands on both banks of the river, which is here non-tidal. He points to the fact that the common law only recognises a right in the Crown to the bed of a river where it is both navigable and tidal. In the trial Court the appellant contended that the river was not even navigable in this part, but the Subordinate Judge held that it was, and the appeal has proceeded on the basis that the Godavari is a public navigable river. In the second place, the appellant claims that by the sanad issued in 1803, the Government granted to the Zamindari the bed of the river in so far as it lies within the area already mentioned. He also claims title to the disputed lankas on the ground that they represent lateral accretions to or reformations of lankas which are admittedly his. The respondent denies the validity of all these claims. The Subordinate Judge held that in India the bed of a public navigable river, whether tidal or not, is vested in the Crown, that the sanad confers on the appellant no title to the bed of the river, and that sixteen of the eighteen lankas represent formations unconnected I with the lands of the appellant. Other questions were raised in the trial Court but the appeal, has been confined to those indicated.