SREE BATCHU VENKATARATNAM Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF EAST GODAVARI

JUDGEMENT

(1.) The question raised in this Letters Patent Appeal is whether the suit tank belongs to the Zamindar or to the Government. The immediate cause of this litigation, as pointed out by Cornish, J., was the action of the Local Taluk Board in auctioning in the year 1926 the right to fish in the tank. Both the Taluk Board and the Government were made defendants and their contentions were rejected by the District Munsiff as well as the Subordinate Judge. A second appeal was filed in this Court, only by the Government whose plea was that the tank was communal property. Cornish, J., reversing the concurrent decision of the lower Courts, has held that the title of the Government has been proved.

(2.) Should the tank be held to be communal property as pleaded, it stands to reason that the Government cannot be presumed to have included in the grant property which belonged to the villagers in common (see the judgment of this Bench in Appa Rao V/s. Secretary of Stated A.I.R. 1938 Mad. 193. But both the lower Courts have concurrently given first, a negative finding that the tank is not communal property and secondly, a positive finding that it is an irrigation tank. If the tank is an irrigation tank as has been found, "it would be meaningless" in the words of the Subordinate judge: To hold that the Government had given the lands forming the ayacut of this tank to the Zamindar but reserved to themselves the tank itself.

(3.) The lower Courts advert to two further circumstances to show that the tank is the property of the Zamindar; (i) that it is within the territorial boundaries of the Zamindari; and (ii) that the Government during a period of over a century never exercised any acts of ownership over the tank. For the first time in 1926 the Taluk Board, as already mentioned, purported to sell the fishing in the tank; but that the Zamindar considered himself entitled to the right to fi&h, is evident from two prior transactions of the years 1904 and 1909 (Exs. C and D).