SESHACHALA CHETTY Vs. PARA CHINNASAMI

JUDGEMENT

(1.) The question referred to us is, whether in a mirasi village the mirasidar is entitled to recover possession of a house site held under a patta from Government; and, to show what it involves, it may be well to state at once the circumstances in which it arises in the case under appeal. On the 16th November 1894 Mr. George Stuart Forbes, Acting Collector of Chingleput, passed orders on certain petitions praying for an extension of the cheri nattam, or part of the village site reserved for pariahs, in the village of Mannur in the Saidapet Taluk not far from Madras. He began by observing that out of the whole Survey No. 14A of 23 acres which was classed as village site, 97 cents, or nearly one acre, identical with Survey No 45 in the paimash or old survey, was shown in the paimash account as "Cherial Pizhakkadai" or reserved for pariahs. There had, he went on to say, been no erection on this site by any mirasidar since the date of the paimash (apparently about 1845) and the only building on it was an arrack shop. He did not interfere with this, but stated that the rest of the plot was available for sites in extension of the paracheri or pariahs quarters, and directed it to be laid out in streets and house sites in such a manner as to facilitate sanitation and the convenience of the residents. As regards any claims from mirasidars, ho merely observed that "the short usurpation by the mirasidars in recent times which is supported by the entry in the Adangal of Seshachellam Chetty (plaintiff) and others , is invalid and cannot be recognized." The Adangal (Exhibit G) is described as the village account of lands held in the village according to Survey numbers. The paimash register only contained the names of actual occupiers of sites in the nattam, as appears from Exhibit X, but in 1886 it came to light that at some time or other the names of the mirasidars had been inserted in the Adangal as well the names of the actual occupiers which alone appeared in the paimash register, and had also been inserted as owners of the unoccupied sites as regards which no names appeared in the paimash register; and this was apparently what Mr. Forbes was alluding to in speaking of the recent usurpation. Exhibits I to VIII are applications for sites put in immediately after the Collector s order by residents in the paracheri which, the endorsements show, were granted or refused according to the merits. This was in 1894 and early in 1895, and the present suit was not brought until January 1905 ten years later. The plaint alleges that the plot was the property of the plaintiffs and that they constructed and rented to the 13th defendant a leaf-roofed shop marked B in the annexed plan; that the defendants on 17-10-1903 took wrongful possession of the plot and erected the shed marked C; and that defendants 1 to 12 with the 13th defendant afterwards dismantled the shop B and erected the sheds D and E. Defendants 1 to 12 pleaded that the site was not the property of the plaintiffs but of Government who had granted the sites thereon. They alleged that the buildings C (a mission hall) and E (a sundries bazaar) had always been in existence and that D bad been erected three or four months previously as the shop B was in a ruined state. The 13th defendant pleaded that he was only a servant of the owner of the toddy shop, and the latter was added as 14th defendant but remained ex parte. The District Munsif at first dismissed the suit on the ground that the Secretary of State in Council was not a party, but on appeal the plaintiffs undertook to make him a party, and this having been done, the Collector filed a written statement on his behalf as 15th defendant in which he alleged that the plaintiffs have not and never had any title to the property, and never occupied it in a manner inconsistent with the rights of Government, and that Government had exercised rights of ownership over it to the knowledge of the mirasidars, The entries in the village accounts for some years by officers who were themselves mirasidars were, it was alleged, only paper entries and did not affect the proprietary right of Government. In his judgment the District Muusif observed that in the Settlement Register Exhibit E (1875) the names of the 1st plaintiff and the other mirasidars were not entered against Survey No. 14A, the village site, and thenceforward they had never taken any steps to assort the right to the land and have it included in their pangu lands. The District Judge took the same view and observed that the plaintiffs had never cultivated the land, and had put up the thatched hut B in 1902 long after Government had assigned the sites. They accordingly dismissed the suit but held it was not barred as it was instituted within 12 years of the grants made under Mr. Forbes s orders at the end of 1894. The result of the findings would therefore appear to be that the site in question was waste land over which the plaintiffs never exercised any rights of ownership until some years after it had been allotted by Government in extension of the cheri or pariah s quarters.

(2.) The Privy Council have very recently pointed out in Secretary of State for India v. Bai Rajbai (1915) L.R. 42 I.A. 229 : 29 M.L.J. 242 that, as regards lauds such as these which have been ceded by native rulers, the only enforceable rights are those conferred by the Crown by express orimplied agreement or by legislation; but in order rightly to appreciate the action of the Crown or Government, it is necessary to know something of the preexisting state of things. We have not been referred to any critical discussion of the legendary settlement, of Thondamandalam, as this part of the country was called, by 300,000 Vollalas from the west coast of India which is referred to in the judgment of Sankaran Nair, J., and had been dismissed as fabulous by Sir Thomas Munro in his well-known minute. What we do know is that this District was the seat of an ancient civilisation, and that Kanchi or Conjeevaram was the capital of the Pallava dynasty who flourished until their overthrow by the Cholas about the end of the 9th century; and that it was afterwards one of the principal cities in the Chola kingdom, which again was absorbed in the Vijianagar Empire in the 15th century. That Empire had fallen into decay, when in the middle of the 17th century one of its nominal dependents granted the East India Company four mirasi villages on which Fort St. George, and tho adjoining White and Black Towns, as they were then called, were erected. To these was added some years later, the Shrotriem Village of Triplicane; and after the advent of the Mahomedans three more mirasi villages which are now included in the Municipal limits of Madras were granted in 1694 during the reign of Aurangazib. Further grants were made early in the 18th century of villages with what are now within the Municipal limits and beyond; and finally the whole District of Chingleput as it now is was assigned by the Nabob of Carnatic to the Company in return for their services against his enemies and became known as the Jaghir. It was subsequently laid waste by Hyder in his invasion of the Carnatic, and it was only some years after 1784 when peace wa3 restored that the question with which we are now concerned came to the front in connection with the proposed introduction of a permanent settlement on the lines on which Lord Cornwallis had carried out the Permanent Settlement of Bengal, and it became necessary to investigate the position and rights of the mirasidars in relation to the land. If they were the real owners of the land it could not be parcelled out among Zamindars under Regulation XXV of 1802 which reproduced the Bengal Regulation of 1793; and later, when the idea of a permanent settlement was given up and the system, of ryotwari settlement with the individual cultivator was coming into favour, this alleged ownership of the mirasidars was again an obstacle to the introduction of settlements with the actual cultivators. The result of the controversy in the early years of last century was that the settlement was made with the mirasidars and not with Zemindars or with the actual cultivators; but many questions such as those with which we are dealing were left outstanding and, lapse of time has not made it any easier to settle them in spite of the lengthy discussions which are to be found in the Mirasi Papers which go down to 1864 and in the further papers which have been specially printed for this case.

(3.) It is unnecessary to go into old controversies as to ownership of land in India as to whether, as has been sometimes held, the State was the owner of all land which it had not actually alienated and the cultivators were merely tenants under it, or whether the cultivators are the owners subject to the right of the State to share in the produce or whether, as James Mill thought, (Fifth Report Ed. Higginbotham page 816), Government and the cultivators should be regarded as "joint tenants" by which he probably meant co-owners. In 1796 (Mirasi Papers 26) the Madras Government went so far as to assert it to be the great feature in all the Governments of India that the Sovereign is the Lord of the soil. As regards waste lands at any rate it seems clear, as held in The Secretary of State for India v. M. Krishnayya (1905) I.L.R. 28 Mad. 257 that by the Mahomedans waste lands in conquered countries were always held to be the property of the State. It may be taken then that the principle to start with generally is that in India waste or unoccupied lands at any rate belong to the State, and the Madras Legislature has in Madras Act III of 1905, which is modelled on Bombay Act V of 1879, given statutory force to this rule which had previously been held applicable to lands of this character.