SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF TRICHINOPOLY Vs. RAGHUNATHA TATHACHARIAR

JUDGEMENT

(1.) The appellant is the Secretary of State for India in Council. The suit as amended was for possession of padugai land on the banks of the Cauvery from the defendant (appellant). The District Munsif found that the whole village of Kadiakurichi in the Trichinopoly taluk belonged to the plaintiff as inamdar, that the grant to the plaintiff included poramboke land and the plaint land bounded on the north by the Cauvery stream bed was included in the "poramboke granted to the plaintiff and that the plaintiff s title was therefore established. But he dismissed the suit on the ground that the Government by occasionally cutting branches from the trees standing on the ground, had been in adverse possession as against the plaintiff for twelve years before suit, and the plaintiff s suit was therefore barred. On appeal the learned District Judge confirmed the Munsif s finding as to title but differed on the question of adverse possession and holding that the plaintiff was exercising acts of ownership while allowing the Government merely to exercise the easement of cutting branches of trees for putting twigbunds occasionally, decreed the suit for possession. Hence this appeal. On the question of possession which is a question of fact there is no ground for interference in Second Appeal. The land was jungle land. Most of the trees growing on it were not timber or fruit trees and the fruit of the two tamarind trees growing on the land used to be eaten up by wild monkeys. There is evidence showing that the plaintiff was cutting branches of the trees for fuel and gathering leaves for manure. The really important question is therefore the question of title which both Courts have found in the plaintiff s favour. The Inam title-deed, Exhibit C, is quite clear, and it grants not only the cultivated dry area in the village and the cultivated wet area but it acknowledges the inamdar s title to the whole village of Kadiakurichi (both wet and dry areas)" besides poramboke." The meaning of this term" besides poramboke" has been the subject of consideration in two recent cases in this Court. In Narayanasami v. Kanniappa Second Appeal No. 1445 of 1910, a case from the Chingleput district, decided by Benson and Bakewell, JJ., the learned Judges said: "These words besides poramboke would indicate a right to poramboke land, such as unassessed waste, but it could not include all porambokes since that word includes all kinds of communal property such as burying grounds, temple sites, threshing floors and so forth, and also public roads (called road poramboke) and rivers (called river poramboke)." It is unreasonable to suppose that in a grant such as is evidenced by Exhibits F and" H, Government by describing the grant as the grant of the village in Exhibit F, or by using the words besides poramboke in Exhibit H, intended by such general terms to assign away a portion of the river bed and thus introduce a divided ownership and control over it and deprive themselves of the power of properly discharging their duties in connection with the irrigation dependent on the river. There is no specific grant of the river-bed and we do not think that the general terms used should be construed as involving such a grant. "It is clear to us that all that was decided in this case is that the grant of poramboke should not be held to include grant of river-beds and the like communal property such as channel beds, burying grounds, temple sites, etc. That the grant of poramboke land must include the grant of unassessed waste which is not communal property and which has nothing to do with the control of irrigation sources is admitted by the learned Judges. The other case is that of Secretary of State v. Kannapallee Venkataratnammah (1912) 23 M.L.J., 109 and was decided by Benson and Sundara Ayyar, JJ. There the question was whether certain channel beds and tanks in a village granted as a whole inam in the Ganjam district belonged to the inamdar as included in the title-deed which used the words" besides poramboke "after describing the areas of the dry and wet lands in the village. The learned Judges say: "The effect to be given to the insertion of the words besides poramboke must depend on the evidence available in each case and the circumstances attending the grant. In this case it is extremely unlikely that when the whole of the village was granted in 1767 by Sitaramraz it was not intended to convey to the grantee all the waste and porambokes in the village. The British Government accepted that grant and recognised the inamdar s title under it. The channel was not one which passed through any Government property before it reached the village of Lakkimdiddi.... Both the learned District Judges who dealt with the case proceeded on the footing that the channel and other poramboke in the village belonged to the inamdar. On the whole we see no reason to dissent from that conclusion." It will be seen that one of the learned Judges who decided Narayanasami v. Kanniappa Second Appeal No. 1445 of 1910, was also a party to this later decision and on the facts of the latter case, held that even channels and tanks did pass by the grant of poramboke under the title-deed. The respondent s (plaintiff s) learned vakil in this case did not contend that if the plaint land was part of the bed of the river Cauvery he could claim title to it as part of the village granted to him. Assuming for the moment that it is not part of the river-bed but waste land on the bank of the river occasionally liable to have water standing on it when there are high floods, is it included in the poramboke granted to the plaintiff? The word poramboke is loosely used in many senses. Whatever land does not yield revenue to Government is usually known as poramboke, though several kinds of lands may be included in it. That ordinary unassessed waste though overgrown with grass or trees must be included in the grant of poramboke seems to us to be clear even after giving the largest scope possible to the decision in Narayanasami v. Kanniappa Second Appeal No. 1445 of 1910. The question has thus become narrowed down to this question of fact: whether the plaint land: (a) is part of the river-bed of the Cauvery and not ordinary uncultivated poramboke; (b) is an island enclosed by two streams of the Cauvery river dividing at the western extremity of the island and rejoining at the eastern extremity; or (c) is poramboke waste just south of the river-bed which bounds it on the north, its southern boundary being the flood bank.

(2.) As regards the second contention (b) this is not mentioned in the three grounds of the memorandum of Second Appeal. It is clear from the Munsif s judgment that the plaint land was not contended to be surrounded on all sides by the Cauvery river but only on one side of it. The contention there was that the high level ground south of the sandy bed of the river but north of the flood bank and called the padugai must also be treated as part; of the river-bed. See paragraph 6 of the Munsif s judgment. The contention that the plaint land was bounded on both sides by the river was advanced at the hearing of this appeal before us on the basis of the rather obscure language used by the District Judge in the first sentence of his judgment, where he says that "the suit relates to padugai or island in the Cauvery." The plaint land may be loosely called an island because though the Cauvery river is only on the northern side of it there is a small irrigation channel called the Elantha Voithalai channel running south of it close to the flood bank. Padugai land in the Trichinopoly and Tanjore taluks means land on the lower-level bank breadth of the river between the edge of the sandy stream bed and the high flood-level bank. It is known as padugai poramboke, padugai waste, padugai punjah, padugai garden or merely padugai, while the sandy riverbed is known as the Neerodi; very occasionally the high island made of alluvial deposits formed by two branches of a river dividing and rejoining within a few yards distance might be called padugai and such land if of small area may no doubt be treated as part of the river-bed poramboke and may not be ordinary poramboke waste. The plaint land is not of such a character. The only remaining question for disposal is whether the plaint land as ordinary padugai land is waste poramboke or must be treated as river-bed poramboke. The contention of the Government that not only the sandy riverbed but also the higher level padugai waste up to the flood bank is part of the river-bed poramboke was unhesitatingly rejected by the learned District Judge who has had also long experience as a revenue officer. As he says, "the flood bank is an artificial construction not proved to exist in its present position at the time when the (inam) register was prepared and is liable to be shifted according to the requirements of the river conservancy." Further, Exhibits V, VI and VIII which are reports submitted by revenue officers, negative the defendant s contention on this point. In Exhibit V, it is said: "The inamdars will have to improve their own padugais within their limits" and padugais are described as padugai waste. In Exhibit VI it is said, "the karnam of Kadiakurichi states that padugai land in his village is shown in the accounts as waste and quit-rent on the taram assessment of the land at As. 6 per acre is included in the quit-rent collected from the inamdar." If padugai was river-bed, bow could the quit-rent be charged or any taram assessment calculated as imposed upon it? In Exhibit VIII in describing the boundaries of several padugais, they are described as south of the Cauvery. If the padugai is part of the Cauvery riverbed, it cannot be described as south of the Cauvery. Exhibit F prepared in 1877 in accordance with the inam preliminary statement prepared before 1864 shows the plaint land as poramboke immemorial tharisu waste padugai. Poramboke No. 8 in Exhibit I? is described as the Cauvery Neerodi north of the plaint padugai, while the Elantha Voithalai channel is stated to be situated south of this padugai. The Revenue Inspector examined as the ninth witness for the Government says, "there was a padugai between the flood bank and the Cauvery." This is almost conclusive to show that the padugai is not part of the Cauvery river-bed but it is the alluvial strip of land between the flood bank and the Cauvery river-bed. This strip of land is, of course, distinctly higher in level than the sandy river-bed, though lower in level than the flood bank and can never be mistaken for the river-bed itself. We have no hesitation therefore in finding that the limits of the Cauvery river- bed poramboke are the limits of the sandy neerodi river-bed and that the padugai rising up from the river-bed and up to the flood bank is not part of the river-bed; and, if it has been lying waste, is included in those poramboke lands which, even according to the decision in Narayanasami v. Kanniappa Second Appeal No. 1445 of 1910 must pass to the grantee under the expression "besides poramboke" in the inam title-deed. The result is that the Second Appeal is dismissed with costs. Sankaran Nair, J.

(3.) I concur. The land in suit lies between the flood bank and the sandy bed of the stream. I have no doubt it is included in the Government grant. I express no opinion on the question whether the inamdar is entitled to any portion of the bed proper or the sandy river-bed. We fix a period of two months for the satisfaction of the decree for costs under Section 82, Civil Procedure Code.