KALAYI NARAYANA JOGITHAYA Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF SOUTH CANARA

JUDGEMENT

(1.) The District Judge has found, as a fact, that the plaint plots are encroachments on poramboke. The appellant s Vakil seeks to attack this finding on the ground that it is based on evidence which is legally insufficient, i.e., on the entries and measurements in the survey records. It is not denied that this is relevant evidence under Section 35 of the Indian Evidence Act and it has in many cases been relied on as valuable Vide Sankaran Numbudripad v. Manavikraman 10 Ind. Cas. 653 : (1911) 1 M.W.N. 213 : 9 M.L.T. 415. The appellant relies on the dicta in Krishna Aiyar v. Secretary of State for India in Council 5 Ind. Cas. 121. 33 M. 173 at p. 175 : 6 M.L.T 306 : 20 M.L.T. 71 and Venkatarama Aiyar v. Secretary of State-far India in Council 5 Ind. Cas. 118 : 33 M. 362 at p. 364 : 7 M.L.T. 139 : 20 M.L.J. 74. This (classification of the items as nattam poramboke) at the utmost was an assertion of title, and is not by itself sufficient to prove the title of the defendant:" Krishna Aiyar v. Secretary of State for India in Council 5 Ind. Cas. 121. 33 M. 173 at p. 175 : 6 M.L.T 306 : 20 M.L.T. 71. "Such entry (of a disputed tank in pymash and settlement registers as Government poramboke) is, of course, insufficient to prove that the tank is, in fact, the property of Government:" Venkatarama Aiyar v. Secretary of State for India in Council 5 Ind. Cas. 118 : 33 M. 362 at p. 364 : 7 M.L.T. 139 : 20 M.L.J. 74. We doubt whether the learned Judges in either case meant to lay down a rule of law as to the quantum of evidence requisite to prove a question of fact. But apart from this the cases are quite distinguishable.

(2.) In each reported case the learned Judges were considering to what extent the description of a particular piece of land or a tank in a Government register as poramboke should be accepted as proof that the land or tank was really poramboke. Here the question is different. It is not disputed that a "todu" has been in existence from time immemorial and is Government poramboke. The question is how far it extends : and in determining this the District Judge has relied on the records of and measurements taken by the Survey Department in the course of their ordinary official duties as evidence of the extent of the poramboke at the time of the survey. This he is entitled to do: and it is not within our province, sitting as Judges in second appeal, to determine whether it should be accepted as sufficient, or what weight on the other side should be given to the appearance of the ground at the time of suit or the existence of trees relied: on by the appellant.

(3.) The second appeal must be dismissed with costs.