OLAPPAMANANNA NANAKAL NEELAKANDAM NAMBUDRIPAD, KARNAVAN AND MANAGER Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL

JUDGEMENT

(1.) This suit was brought by a Jenmi or landowner of South Malabar to obtain a declaration that the suit land forming the bed of a Thodu or stream, called Pulliyampalli Puzha or Thcdu, and the lands on both sides of it belong in Jenm to him and that Government has no Jenm right over the suit plots, and to recover the same, The District Munsif of Ootapalam who tried the suit gave the plaintiff a decree accordingly, but the Subordinate Judge of South Malabar at Calicut who heard the appeal modified the judgment of the District Munsif and dismissed the plaintiff s claim in respect of the items now in dispute with costs.

(2.) The items now in dispute are items Nos. 1 to 4 forming the old bed of the stream and items Nos. 6 to 8 which are part of the present bed. Item No. 5 is not subject to appeal. The 1st defendant in the suit is the Secretary of State for India in Council. This defendant adduced a large quantity of documentary evidence to show that from 1855 till 1880, the Government laid claim to the beds of all rivers in Palghat and was levying a Jenmabhogam on persons who occupied the beds, and in some cases was selling Jenm right to the occupiers. In a similar case, Original Suit No. 330 of 1892, the appeal in which was heard by Mr. Benson, (afterwards Sir Ralph Benson, a puisne Judge of this Court) similar evidence was produced of the Government having granted Cowles and collected Jenmabhog for river accretions in certain rivers in the Palghal Taluk between 1859 and 1892, and that between 1863 and 1885 the Government sold Jenm titles in a number of such accretions in the Palghat Taluk, and private persons purchased titles from Government in such cases. The District Judge s judgment was not brought up to the High Court in second appeal, but as it stands, it is cartainlya recognition by a judicial tribunal of the existence of the custom which has been sought to bo proved in the present case. The Subordinate Judge was evidently influenced by this judgment, Exhibit DL, and relying on the evidence as to the assertion of title by Government to river-beds in Palghat Taluk, he found that a local usage prevailed in that Taluk by which non-navigable and non-tidal rivers belonged to Government in Jenm. He qualified this finding by saving that it is not supported by the general law of the Presidency or by any general custom prevailing in the Malabar District.

(3.) Now the proof of custom arising out of the facts found in this case appears to me to be defective in the following particulars: (a) It is not a custom or usage of great antiquity, seeing that it is not proved to have existed before 1855. In this connection see the observations of Sankaran Nair, J., in Meenakshi Amma v. Secretary of State for India 24 Ind. Cas. 517 : 26 M.L.J. 385 : 15 M.L.T. 847 : 1 L.W. 307 : (1914) M.W.N. 521. (b) Its value is diminished by the fact that in 1855 when a question arose about the levying of Jenmabhogam in several parts of the District, notably Walluvanad Taluk, the then Collector, Mr. Logan, decided not to levy Jenuiabhogam for the reason that in non-navigable and non-tidal rivers, the accretions belonged to the riparian landlords, see Exhibit FF. This decision by the Collector was taken in consequence of a reference to the Government Pleader whose reply has bean filed as Exhibit DCC XII, in which he expressed his opinion that in dealing with the respective rights of Government and of private parsons to accretions in rivers the general principles of English law might be applied as a guide, except where a well established local usage to the contrary was proved. (c) As regards Palghat Taluk the custom or usage found by the Subordinate Judge to exist has not been traced to any definite local origin.