SREE RAJAH VASIREDDI VENKATA LAKSHMI NARASAMMA BAHADUR MANNE SULTAN GARU, DHARMAKARTHA OF BHAVA NARAYANASWAMY DEVASTANAM Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR

JUDGEMENT

(1.) IN Bengal Regulation XI of 1825, the Legislature, acting, as recited in the preamble, on reports from the law officers as to the provisions of the Muhammadan and Hindu Laws and on a consideration of the decisions of the Sudder Adalut, proceeded in Section 4 to make a distinction as to the ownership of Churs in navigable and non-navigable rivers, which, in the opinion of Sir M.R. Westropp, C.J , in Baban Mayacha v. Nagu Shravucha 2 B. 19 : 1 INd. Dec. (N.S.) 441 raised an inference, though not conclusive, that the beds of non navigable rivers are generally private property. The observation of the Judicial Committee in John Doe v. East INdia Com. 6 M.I.A. 267 at p. 288 : 10 Moo. P.C. 140 : 1 Sar. P.C.J. 540 : 19 E. R. 100 : 110 R.R. 21 appears to proceed upon the same view. The law was laid down in the same way in Rajah Neelanund Sing v. Rajah Teknarain Singh Cal. S.D.A.R. (1862) 160 and by the Calcutta High Court in Hunooman Doss v. Shamchurn Bhutta, 1 Hay 426 and Bhagee-ruttee Dabea v. Greesh Chunder Chowdhry 2 Hay 541 , where the Court held that "by the common law of this country the right to the soil of the bed of a river, when flowing within the estates of different proprietors, belongs to the riparian owners, ad medium filum aquae."

(2.) IN this Presidency the decisions of the Sudder Court in Sree Rajah Ooppalapaty Jogee Jaganadheruze v. Sub-Collector of Rajahmundry S.D.A. (1858) 180 and of the High Court in Subbaya v. Yarlagadda 1 M.H.C.R. 255 were to the same effect. It is only in the case of navigable rivers that the presumption has been laid down the other way by the Judicial Committee in Eckowri Sing v. Heeraloll Seal 2 B.L.R. (P.C.) 171 : 2 Sar. P.C.J. 399 : 20 E.R. 292, Felix Lopez v. Muddun Mohun Thakoor 5 B.L.R. 521 : 13 M.I.A. 467 : 14 W.R. (P.C.) 11 : 2 Suth P.C.J. 336 : 2 Sar P.C.J. 594 : 20 E.R. 625 and Nogender Chunder Ghose v. Mahamed Esoff 10 B.L.R. 406 : 18 W.R. 113, while in Forbes v. Meer Mahomed Hussein 12 B.L.R. 201 : 20 W.R. 44, it appears to be assumed that in the case of non-navigable rivers the ownership of the bed is in the riparian owners. The decision of the Judicial Committee in Kali Kissen Tagore v. Jodoo Lal Mullick 5 C.L.R. 97 : 61 I.A. 190 : 4 Sar. P.C.J. 61 and Khagendra Narain Chowdhry v. Matangini Deli 17 C. 814 : 17 I.A. 62 : 5 Sar. P.C.J. 528 : 8 INd. Dec. (N.S.) 1087 (P.C.) appears to proceed on the same basis. IN Sri Balusu Ramalakshmamma v. Collector of the Godavari District 22 M. 464 : 1 Bom. L.R. 696 ; 3 C.W.N. 777 26 I.A. 107 : Sar P.C.J. 534 : 8 INd. Dec. (N.S.) 332 (P.C.), where the appellant before them sought to base her title to the Lanka in question on the presumption arising from the fact that she was the owner of both banks of the river, their Lordships observed that such a claim was not made by the pleadings or by the issues, and was one about which much evidence might and probably would have been given if it had been raised; and they accordingly declined to discuss the question because it was not relevant to the case made by the plaintiff, and merely observed that, having grave doubts whether the presumption ap-plicable to little English livers applies to great rivers such as the Godavari, they would require to know much more about the rivers in question before deciding as to the presumption or its rebuttal. This reservation, in a case in which the question in their Lordships opinion did not arise and in which the authorities above referred to were apparently not cited, cannot be taken as a ruling that the presumption is generally inapplicable in the case of non-navigable rivers in this part of INdia. Certain dicta as to the ownership of river-beds were also cited from recent cases in this Court, but they are far from uniform and in none of these cases was the present question con- sidered in the light of the authorities. We, therefore, consider it unnecessary to refer to them. The result of the authorities in our opinion is that, as regards a grant of land in INdia described as bounded by a non-navigable river, the onus of showing that the grant did not cover the bed ad medium filum aquae is on the grantor. The presumption may be strong or weak according to the circumstances of the particular case, and the amount of evidence required to rebut it will vary accordingly. We do not think it desirable to attempt to lay down any more definite rule. Reference has been made to The Madras Land Encroachment Act, Act III of 1905, but that Act cannot affect the pre-existing rights, if any, of the grantee in this case.