A VENKATASAMI NAIDU-PLAINTIFF Vs. AGARAM CHENGA REDDI

JUDGEMENT

(1.) The original suit was for ejectment of the defendants and for a permanent injunction restraining them from interfering with the plaintiff's possession of the suit land. The suit land is in the ryotwari village of Machampattu. It was registered in the Government village registers as channel poramboke. In 1922 it was transferred by Government to assessed waste and assigned to the plaintiff on darkhast. The plaintiff alleges that he was put in possession at the time of the darkhast and that the defendants subsequently trespassed on it and dug a channel in it. The defence was that the darkhast of what was channel poramboke was fraudulent and invalid, and that the channel has been in use all along for taking water from the river Palar to irrigate the defendant's lands. The trial Court held that the darkhast was valid and binding on the defendants and decreed the plaintiff's suit. The lower appellate Court in not a very clear judgment has decided that the "ryots" have acquired a right to preserve the channel as against the Government, and that the grant on darkhast in derogation of the defendant's rights is invalid. It therefore dismissed the suit; and the plaintiff appeals.

(2.) Both the Courts agree that the allegation of fraud has not been made out. That part of the defendant's case is therefore concluded and has not been (sic) here. The decision of the lower appellate Court is based on the consideration that because the land has been registered all along as channel poramboke and because the revenue authorities who inspected it in 1911 and other years, who say that the land was overgrown with prickly pears which the ryots said they would clear away, did not say that it had ceased to be a channel or was entirely unfit to be used as such, it must have been registered at the resettlement in 1916 as channel poramboke because the ryots wanted it to be reserved for channel. The Subordinate Judge concludes that the ryots have acquired a right as against Government to have the land reserved for a channel because the Government registry was a recognition of the fact that the ryots 4 are entitled to make use of the land as channel. He admits that the channel is not a recognised source of irrigation to any lands in the village but holds that the defendants have, what he calls a "customary right or a right by prescription" to make use of the suit land as a channel. He also finds that the land has not been used as channel since 1903 when it was silted up by an overflow of the river Palar, but he decides that the non-user in the period between 1903 and the suit (1922) does not amount to an abandonment of the right of user.

(3.) It is contended for the defendants that this is a finding of fact not to be canvassed in second appeal. It seems to me a mixed question of fact and law, and in any case, as the Subordinate Judge has based his finding entirely on the settlement registry of the land as channel, it appears to me that even if the finding be taken to be one of fact, it rests upon no evidence. The mere registry of the land as poramboke is no evidence which can be used for the purpose of establishing a case of immemorial user as channel. In the first place, such registry does not necessarily imply that the channel is an irrigation channel, although the lower appellate Court assumes so. There are obviously other kinds of channels in a village than irrigation channels; for example, supply channels to tanks or surplus channels from tanks. But apart from that it is now well settled law that the mere registry of land in a village as a particular kind of poramboke creates no vested right in the villagers to hold it as such against Government. Such registry implies no kind of dedication or trust or any recognition of a vested right or user. I have lately considered the law on this subject at some length in my judgment in S.A. No. 692 of 1926, a case of grazing ground poramboke, and I need not repeat here what I have said there. The latest reported case on the subject is Secy. of State v. Trustees of Sri Kuthalanathaswami Temple A.I.R. 1928 Mad. 1176, wherein (at p. 31 of 52 Mad.), it is laid down that the classification of porambokes, including channel, in village registers is merely by way of description and confers no title. The defendants seek to make out that the registry of this channel in the Settlement of 1916 was a special kind of registry, because in 1911, the special Revenue Inspector took a statement from the ryots (Ex. 11-A) that they would dig up the channel soon. It is contended that this was a sort of recognition of the immemorial user of the land for an irrigation channel. With that I am unable to agree. The statement itself does not even claim any such user. I see nothing special in the entry of the land as poramboke in 1916 settlement register. No records of the settlement itself are produced to support this view.