M P MANICKAM PILLAI Vs. KAILASAKONE

JUDGEMENT

(1.) The subject-matter of this appeal is the right to catch fish in a certain tank, to take the grass which grows on the banks of the tank and the usufruct of certain trees. The appellant was the plaintiff in the Court of first instance. He is admittedly an inamdar of the village and the owner of the tank. He sued the defendants as representatives of all the ryots of his village. The defendants claimed that by long-established custom they had a right to the fish and the usufruct of the trees and the grass. This right has been upheld by both the Court of first instance and in appeal by the learned Subordinate Judge of Madura. The learned District Munsiff clearly finds that there must have been a grant by the predecessor of the inamdar of the right in question and the learned Subordinate Judge says that he agrees with the learned District Munsiff.

(2.) The point which is raised in second appeal is that such a grant cannot be presumed, because it is in law impossible. The ryots of a village represent a fluctuating body of persons and as such are incapable of being grantees. Certain English authorities have been quoted in support of this proposition, as they were quoted before the learned Subordinate Judge. But as has been pointed out by the Privy Council in Bhola Nath Nundi V/s. Midnapore zamindary Co. (1904) 14 M.L.J. 152 : L.R. 31 I.A. 75 : I.L.R. 31 Cal. 503 at 509 (P.C.) issues of this kind can be in some measure obscured by copious reference to English authorities, and by the application of principles or doctrines more or less refined founded on legal principles not altogether in harmony with Eastern notions. The proposition appears to have been Followed on more than one occasion in the Calcutta High Court; but in Madras it has been:recognised in Subramaniah Chetti V/s. Vijia Raghunatha Pillai (1917) 6 L.W. 769 that a village community can act as such and can be validly the subject of presumed grant. It seems to me that I am bound by the decision in Subramanian Ghetti V/s. Vijia Raghunatha Pillai (1917) 6 L.W. 769 and that in the face of it, it is impossible to rely either upon the English decisions or those of other High Courts in India. If there is no legal impediment to the finding by the Court that there must have been a grant given to the villagers as a whole; then that finding becomes a finding of fact which cannot be disturbed.

(3.) In these circumstances the appeal fails and is dismissed with costs.