1. This appeal arises in a suit filed by the appellant, who is the Thakor Saheb of Amod in the District of Broach, against the Secretary of State for India in Council. The reliefs prayed for were a declaration that the plaintiff was the full and absolute proprietor of all the roads, tanks and other waste and unoccupied areas within the limits of his estate, and an in-junction restraining the defendant from interfering with his rights.
2. The grounds on which the reliefs were sought are shortly these:--The talukdari estate of Amod was a very ancient one descendible according to the rule of primogeniture. Once upon a time the Thakor's ancestors held the gadi of Amod as independent kings but afterwards the Mahomedan and Maratha invasions in Gujarat reduced the size of that kingdom and tributes were exacted from the Thakors of Amod. Before 1817, when the British conquered the territories, the Thakors were paying; to the Peshwa a tribute called the annual jama, which was fixed at about Rs. 8,506, as well as a triennial payment of Rs. 3,000 as peshkush. By the treaty of Poona in 1817 the Thakor's estate as well as the other parts of Gujarat came under the British rule, and the Thakor made to the British Government the same payment which he did to the former Government. After the introduction of the British rule various surveys were made of the Amod Taluka in Broach. But in all of them the Thakor's lands, which consisted of contiguous blocks of lands in twenty-two villages in the district, were kept intact and the Thakor was admitted to be the sole owner and full proprietor of the whole area of the lands in his possession subject only to the payment of the jama and the peshkush. At no time was it suggested that the roads, tanks and other waste lands in these areas belonged to the Government and the Thakor's proprietary rights over them were not disputed. In 1871 when the Broach Talukdars' Relief Act (XV of 1871) was passed, the Amod estate was put under the management of a Talukdari Settlement Officer, and during that management the first regular survey came to be made. At that time the suit lands had been distributed in three different talukas in the Broach District, and although Government officers tried to assert the rights of the Crown on all the unoccupied areas in the Thakor's estate, those contentions were ultimately given up. After the passing of the Gujarat Talukdars' Act in 1888 a regular detailed survey of all the lands of the Thakor's estate was made and concluded in about 1914. Some time after that, the revenue authorities took steps to cancel the entries in the survey records relating to waste areas in his estate. The plaintiff made several representations to the Government, which appointed a committee and finally decided by a Government Resolution of the Revenue Department dated August 25, 1926, that Government did not admit the plaintiff's claim to the proprietary rights over the roads and tanks in his estate. This Government Resolution, according to the plaint, afforded the cause of action for the present suit for a declaration of the plaintiff's title to roads, tanks and all the waste areas in his estate.
3. The defendant in his written statement denied the plaintiff's allegations that the suit lands were of the plaintiff's ownership and that they were in his possession or enjoyment. It was contended that the roads and tanks in dispute vested in the public and that all the lands in dispute belonged to the Government, It was further stated that the suit was barred by limitation.
4. On these pleadings the material issues raised were whether the plaintiff proved that he was the owner of the suit lands except those which were admitted by the defendant; whether the orders passed in the Government Resolution of August 25, 1926, relating to the suit lands were legal and proper; and whether the suit was in time.
5. Voluminous evidence, oral as well as documentary, has been led by both the parties. Before dealing with the evidence it is necessary to describe the nature of the estate held by the Thakors of Amod. There is no doubt that the Amod gadi was one of the old estates enjoyed by the Thakors of Amod since several centuries. The first authentic record to which we have been referred is the treaty of Surat in 1775 between the East India Company and Raghoba Peshwa of Poona printed in volume VII of Aitchison's Treaties. By Article 9 of this treaty Raghoba Peshwa assigned the revenues of Amod and all its districts, among other territories, to the East India Company for meeting the charges of military forces with which he was to be assisted. Thereupon Raghoba ordered the Zamindar of Amod to pay his revenues to the Company. Thereafter in 1782 by a subsequent treaty the East India Company re-transferred those territories to the Peshwa. Just before the Government of the Peshwa was overthrown, some of the territories belonging to that Government including Amod were transferred by the treaty of Poona in 1817 to the East India Company, and the Thakor once more came under the suzerainty of the East India Company and thereafter of the British Crown. At the date of this transfer the Thakor of Amod was paying a tribute for his lands which were known as the lands of wanta tenure. (For a judicial exposition of this tenure see Dolasang Bhavsang v. The Collector of Kmra I.L.R. (1879) 4 Bom 367 The nature of this tenure is very important for the purpose of deciding the questions involved in this litigation. It is, therefore, necessary to see before proceeding further what exactly is meant by the term 'wanta'. 'Wanta' means a, share and a 'wantadar' means a sharer. The term was applied to a part of the lands held in absolute proprietorship by old Rajput Chiefs of Gujarat. The Mahomedans, after their invasion, deprived them of all but one-fourth share in their lands. That one-fourth share was allowed to be retained by them in consideration of keeping peace and order in their villages. These lands, which were retained by the former chiefs, became their wanta and continued to remain their absolute property, while the remaining three-fourths share called talpad became the property of the then Government. This proportion of shares, however, was not long preserved. A powerful wantadar would from time to time seize talpad lands and add them to his own wanta; a weak wantadar might lose a part of his wanta by encroachments of the holders of talpad lands; while a needy wantadar might part with his lands by alienation to others. In a majority of cases, the wantadars, or the Thakors as they were called, paid quit rent or salami as it was called to the Government. After the introduction of the British Government some wantadars allowed their wanta lands to be numbered and assessed for the payment of salami under the Summary Settlement Act (VII of 1863), while others continued to make a payment in lump for all their wanta lands. This payment was called udhad jalmabandi, i.e. payment of revenue in lump, and the wanta was called udhad salami wanto. It is important to note that wanta is a characteristic of lands and not of the person who holds them. There is a class of landholders in Gujarat who are known from early British;' times as talukdars (the name seems to have been borrowed from the description of landed proprietors in Upper India who were called talukdars) and the lands held by them as such are known as lands of talukdari tenure. According to the Bombay Survey and Settlement Manual, Vol. I, 'the leading characteristic of talukdari tenure is that a talukdar's estate is held neither in gift from the Crown (i.e. alienated), nor in occupancy (i.e. unalienated), but with full proprietary rights antedating the advent of the British rule and including the ownership of lands, minerals and trees.' This description would also apply to wanta lands, but a talukdar and a wantadar are not convertible terms, as wanta holders are generally but not invariably talukdars. The Thakor of Amod is a wantadar as well as a talukdar. His holdings were originally in one taluka of the Broach District, but later on.they were distributed in three talukas of Amod, Jarnbusar and Wagra of the same District. The total area of the Amod wanta estate is 14,567 acres and thirty-one gunthas for which the Thakor is paying to the Government Rs. 9,451-13-5 as udhad jama with peshkush. The lands in dispute in the suit are roalds, tanks, village sites, creeks, river beds and other waste lands, all known as kharaba in the revenue phraseology. They comprise 244 items with a total area of 758 acres and 15 gunthas distributed in twenty-two villages. The largest compact area out of the suit lands is one big survey No. 354 which is sub-divided into 201 numbers and comprises an area of 5711 acres, 22 gunthas.
6. It is clear that whatever rights the Thakors of Amod might have enjoyed in pre-British days, they would not enjoy them under the British rule unless they were regranted to them after the commencement of the British rule in 1817: Secretary of State for India v. Bai Rajbai (1915) L.R. 42 IndAp 229 and Vajesingji v. Secretary of State for India I.L.R. (1924) 48 Bom. 613. It is clear on the evidence that the British Government did not recognize the Thakor of Amod as a chief paying tribute and holding his lands under a political tenure. The payment was regarded as of a civil nature, and under the judgment of the civil Court (exhibit No. 40) in 1819 the peshkush paid by the Thakor of Amod was treated as payment of a civil and not of a political nature and therefore enforceable in a civil Court. The status of the Thakor since 1817 can be described as that of a talukdar holding lands from the Government, neither as alienated or unalienated but of a peculiar type by which wanta lands were held in proprietorship for which a lump payment by way of revenue for all the lands was made to the Government. It appears that in 1863 an attempt was made by Government officers to realize this lump payment proportionately on the several lands held by the Thakor in different villages, but it was subsequently given up and the Thakor continued to pay his jama in a fixed lump sum for the whole of his estate. From 1865 the payment of peshkush, which was formerly triennial, was made annual. One important fact may be mentioned here that the lands of the Thakor, which were shown as wanta in the Government records since the advent of the British rule, were in 1867 entered in the revenue records under the heading of ''Government lands appertaining to lump jamabandi'. The Thakor protested against the change in nomenclature, and requested that they should be shown as wanta The Government did not grant the Thakor's request but expressly stated that the Thakor's right of ownership of those lands did not stand to suffer thereby (exhibit No. 178).
7. We will now deal with the lands in dispute as they were treated since the British rule in the chronological order. In 1819 there was a survey of the Amod area which at that time included the three villages of Amod, Wadia and Ranipura, by an officer named Monier Williams, and the survey is known by his name. It was a detailed survey of the talpad lands in Amod area, but the wanta lands of the Thakor in Amod and another village named Buva were shown only by their boundaries in what is known as gol mapni or round survey. Exhibit No. 41 is the register prepared according to that survey. The area of the arable as well as non-arable lands of talpad was shown as 1051 kumbhas and 98 malas (100 kumbhas = 95 acres roughly). This area comprises 864 kumbhas and 55 malas arable, and 187 kumbhas and 45 malas non-arable or waste lands. The wanta of the Thakor was shown as 5,300 kumbhas and four malas. The arable and non-arable portions in the wanta were not separately shown, but only the total area was shown as including cultivable lands, village sites, roads, ponds, ditches, hollow lands, etc, and they were all said to form part of the wanta. They were not shown as belonging to the talpad, i.e. to the Government. Some other villages, where the Thakor's wanta lands were also situated, were surveyed in detail. But in Amod and Buva the wanta lands were only indicated by boundaries, and some big roads and kharabas, which came to notice, were mentioned therein (see the deposition of Gordhandas, exhibit 446).
8. Under Section 5 of Regulation II of 1814 a revenue register known as kayam kharda was required to be kept by the authorities. Exhibits Nos. 43, 44 and 46 are abstracts from these registers for 1829, 1831 and 1832. In 1829 the arable lands in the talpad portion are shown as 887 kumbhas and 96 malas and the talpad waste lands as 176 kumbhas and 46 malas both totalling 1064 kumbhas and 96 malas. The arable and non-arable portions of the wanta were not mentioned separately as was done for talpad or sarkari lands, but the total wanta was shown as 5300 kumbhas and 4 malas, i.e. the same area as appeared in the survey register of 1819. In 1832 the area of wanta lands seems to have increased as it is shown in lump as 6,033 kumbhas and 50 malas including waste lands. The details of the kharaba lands in talpad were given but not of the wanta. The next document is the kharda register of Amod of the year 1852-53. It is an important Government record in which for the first time we have got a detailed statement of all the arable and kharaba lands in the talpad as well as the wanta portions of Amod. Exhibit No. 45 is an extract from; that register showing the non-arable lands in the talpad and the wanta. Column 2 contains the description of the lands, and column 3 states whether it is Government land belonging to the village, or wanta land having its assessment fixed in lump. Column 4 contains a description of the purpose for which the land was used in the case of talpad land, while it simply shows the name of the Thakor in the case of wanta lands. Roads in the talpad portions were shown as passage or public passage while roads in wanta are simply mentioned as in the wanta of the Thakor. The total kharaba in the talpad comes to 91 kumbhas and 40?? malas while that in wanta is 1873 kumbhas and 43 malas, which is subsequently corrected as 1846 kumbhas and 35 malas as 27 kumbhas and 8 malas were removed in arable portion. This register is from time to time corrected and made up to date till about 1874. Its importance for our purpose is that roads, ponds and all other non-arable lands constituting the kharaba in the wanta were shown in detail under the name of the Thakor of Amod and as part of the wanta as contrasted with roads, etc. belonging to the Government. Another important thing to note about this exhibit is the endorsement made by the talati in the register on March 16, 1871, that land measuring seven kumbhas and eighteen malas was taken for road from the Thakor's land. The compensation thereof having been paid, the land was deleted from the wanta kharaj (waste) land and entered as Government land.
9. As stated above, the area of Amod included the villages of Amod, Wadia and Ranipura and only a boundary survey thereof was made in 1819. In 1865 the Thakor requested the survey authorities to make a detailed survey of the same by showing the three villages separately and deducting the kharaba portion of the wanta from its arable portion. Exhibit No. 493 is a reply of the survey officer stating that the survey department was willing to undertake the work if the expenses were paid by the Thakor. But nothing further seems to have been done in the matter.
10. In the same year the Bombay Survey and Settlement Act (I of 1865) was enacted. Section 4 empowered the Government to direct extension of a survey to any part of the Presidency for the settlement of land revenue and also to record and preserve proprietary and other rights connected with the soil. Under s, 34 the revenue management of an estate not belonging to the Government may be temporarily taken over by the Government. By Section 49 a survey could be extended to alienated villages for defining the village boundaries and for other purposes on the application of the holder. This Act did not strictly apply to wanta lands paying revenue in a fixed lump sum, its object being as stated in the preamble to equalise the assessment of lands. But it appears that in 1871 when the Broach Talukdars' Relief Act (India Act XV of 1871) was passed, the Thakor's estate was placed, and it remained from 1872 to 1896, under the management of a Talukdari Settlement Officer who asked the survey department to undertake a: survey of that estate under the Act of 1865. The survey was then being conducted in the Broach District by Mr. Beyts, who was the Superintendent of Survey and Revenue Assessment in Gujarat, and it is called Beyts Survey after him. He enquired into the assessment rates in the Amod taluka and made a long report, an extract of which is exhibit No. 409. He expressed his opinion that roads in the wanta undoubtedly belonged to the State and that it was unnecessary to enquire about it. As to village sites and tanks, he expressed his opinion as follows:--
My impression is, and I would advance it with much deference, that no desire to oblige these Thakors will be found an adequate motive for a retrogressive step of the nature which the Talukdari Settlement Officer is inclined to support. It is one thing to treat ancient rights that have never been laid aside with tenderness, and another to create antiquated privileges of which no public necessity can be advanced as the excuse.
The wantadars, big and small, should be told, briefly and firmly, that they as well as their cultivators will not be disturbed in what they possess. The usufruct of the village site, its temple, its field of ease, and tank, belongs undoubtedly to the whole community, and the property is by the common law of the land vested in the Sovereign.
11. It is pertinent to note here that his view about the village site in the wanta was not accepted by Government which directed that the right or otherwise of the Thakor to village sites should not be in any way taken up or decided by the revenue survey.
12. Exhibit 516 is the summary and description of the talpad as well as wanta lands at Amod in 1878 according to the revenue survey conducted by Mr. Beyts. Exhibit 512 is a similar summary in the same year of the compact and big wanta survey No. 354 of the Thakor in Amod. The areas of the lands in this and subsequent records are henceforth entered in acres and gunthas. In exhibit No. 516 the total area of the numbered lands (362), both arable and kharaba portions in the talpad and wanta was shown as 6748 acres and 4 gunthas, out of which 287 acres and 16 gunthas is the kharaba of the whole village, the remaining 6460 acres and 20 gunthas being the cultivable portion. To this total of 6748 acres and 4 gunthas is added the area of 370 acres and 28 gunthas which comprised unnumbered waste lands like village sites, creek and roads. The grand total of all the lands is 7118 acres and 32 gunthas. Survey No. 354 of the Thakor is included in the numbered lands shown in exhibit 516, and its total area is separately shown in exhibit 512 as 5711 acres and 22 gunthas out of which 238 acres and 6 gunthas is the kharaba area of that number. This latter area included roads, ponds, wells, creek, cemetery, building site (of the village of Wadia) etc. Thus the roads and other non-arable portions of survey No. 354 were shown not as part of any unnumbered talpad kharaba lands measuring 370 acres and 28 gunthas in exhibit 516 but as part of the wanta owned by the Thakor. Another material point to note is that the village site of 64 acres and 6 gunthas, which is the site of the town of Amod, was shown in 1878 as the unnumbered Government land on the opinion of Mr. Beyts that village sites did not belong to the Thakor. But as stated above, that opinion was not accepted by the Government, and the claim of the Thakor to that village site, which was put forth by him in a petition to the Government in 1883, was at last accepted in 1897, and an endorsement was, therefore, made in exhibit 516 on December 23, 1903, entering the order of the Government to separate that area from the talpad portion and to include it in the Thakor's wanta. Since then the Thakor's right to the village site of Amod town has been accepted, and it is not, therefore, questioned in this suit. The decision of the Government stating the grounds on which the village site was held to be Thakor's is not on the record of this suit. It is, however, referred to in exhibit No. 66 as having been made in 1897. The Thakor's petitions in 1883 and 1894 are on the record as Appendix 2 to a printed memorial to the Government (exhibit 184) in which he pressed his claim for the village site of Amod and contested the Government demand for an additional salami of two annas in a rupee on his lands. Exhibit No. 185 is also the application by the Thakor in which the history of the dispute is given. Both requests were temporarily turned down by a Government Resolution of December 15, 1883, which contained, however, two important statements that the Thakor's title to the waste lands held by his ancestors in 1818 and 1819 must be admitted and the excess lands should be subjected to a quit rent of two annas in a rupee and that the question of the proprietorship of wanta sites was not between Government and the Thakor but between the Thakor and the villagers who disputed his claim.
13. It may be noted here that this added assessment of two annas per rupee, which was levied according to the recommendation of Mr. Beyts and the Thakor's request about which was turned down, was abolished in 1888, and the amount levied was refunded to the Thakor (exhibit 182). Thus the opinion of Mr. Beyts about the ownership of the village site as well as the liability of the Thakor to pay additional assessment for the alleged: encroachment of Government lands and their inclusion in the wanta was not accepted, and the Thakor was allowed to rerriain in possession of all his wanta lands held by him at that time without any addition in his udhad jamabandi. The same exhibit in Appendix 4 contains an order by the Collector in 1885 in a dispute about the ownership of a road in the wanta. It was held that the road belonged to the Thakor who could close it altogether if he liked.
14. We now come to two enactments which have a material bearing on the questions before us. In 1879, the previous laws relating to the land revenue administration were codified in the Bombay Land Revenue Code, and in 1888 the Gujarat Talukdars' Act was passed for the revenue administration of the estates held by talukdars in Gujarat. The term 'talukdar' was described as including, among other persons, a Thakor, and it was further described to include any class of holders of unalienated estates upon which the land revenue is fixed by a lump assessment to whom the Government extends the provisions of part II of the Act, That part in Section 4 authorised the Government to direct a revenue or a revised revenue survey of any talukdari estate under the provisions of the Bombay Land Revenue Code applicable to such surveys. Section 5 authorised the preparation by the survey officer of a settlement register containing several specified particulars. Under Sections 6 and 7 disputes concerning matters to be entered in the settlement register were to be determined by the survey officer. The register was to be corrected from time to time by that officer or the Collector, but no order or decision by the survey officer or Collector was conclusive in a civil suit between the parties. Under Section 8 no suit lay against the Government to set aside any decision or order of the survey officer or Collector. Then, by Section 33 certain sections of the Bombay Land Revenue Code were excluded from application to an estate to which this Act applied. Section 37 of the Bombay Land Revenue Code is not one of the excluded sections, and it, therefore, applies, and is mainly relied on by the defendant in this suit. The word 'talukdar' was to be substituted for the word 'occupant', and the words 'talukdari holding' for the word 'occupancy' in the Bombay Land Revenue Code in so far as it applied to talukdari estates.
15. To resume the thread of the narrative, a detailed crop register (pahani patrak) of cultivated as well as uncultivated lands of the Thakor's estate in Amod was prepared in 1886-90 when it was under the management of the Talukdari Settlement Officer. It was not prepared by the Government Officers but by the officers of the estate. It is exhibit 160 and it contains a description of the nature of the lands, their area, names of tenants, and the nature of the crops. The area of the cultivated and waste portions of each number is separately given. The cultivated portion is described as either darbari, i.e. belonging to the Thakor, or inami, i.e. given to a person in gift by the Thakor. The uncultivated portion is described as waste land in column 4. At the end of the register all the roads situated in the wanta portion were described with their area. Exhibits 168 and 172 are similar registers for the other two villages of Wadia and Ranipura. Between 1898 and 1904 the survey department conducted a revision survey of Government] lands in which the old measurements were mostly confirmed. In 1904 there was correspondence (exhibit 559) between the Thakor and the Mamlatdar of Amod about a road through the Thakor's wanta land from the town of Amod to the burning ground outside. The Mamlatdar thanked the Thakor for giving his thirty feet land for the road and assured him that when the road was diverted and the land fell into disuse, the Thakor would have the right over the same. It stated further that so long as the road existed, it would be used for public purposes and there should be no obstruction from the Thakor in the thirty feet road. In 1911, 2 acres and 38 gunthas out of the roads of the wanta in the Thakor's survey No. 354 were acquired for constructing a railway and compensation at the rate of Rs. 160 per acre was given to him (exhibit 173). Witness Gordhandas (exhibit 446) speaks of the area acquired as gochar or pasture land, but exhibit 173 describes it as a part of road. In the same year the Government granted the Thakor's request to separate the villages of Wadia and Ranipura from the Amod area, and since then they are shown separately from Amod.
16. In 1912, the survey department began the preparation of a detailed survey of the Thakor's estate under the provisions of Section 4 of the Gujarat Talukdars' Act for the purpose of compilation of the settlement register. The Thakor was unwilling to have his estate surveyed as he was afraid that if his wanta measured more than what it was in the survey of 1874, he would be deprived of the excess, but the Survey Settlement Officer assured him that he would not be deprived of any excess over the recorded area (exhibit 424). Soon after the survey began, the question arose as to how the roads and tanks in the wantas of the talukdars were to be shown. The Assistant Survey Settlement Officer, Khan Bahadur P.R. Mehta, in his letter of April 26, 1913, (exhibit 71), expressed his opinion thus:--In the previous kayam kharda the tanks were shown at the end of the general summary of the village lands and, therefore, they appeared as Government unassessed unalienated lands. However, small tanks when they are situated in the middle of the wantas or do not adjoin unalienated lands were the property of the wantadars and should be shown as such. As to roads, he divided them in three classes, (a) a small road beginning and ending in wanta, (b) a public road passing from one village to another, and (c) a road running on the boundary of a wanta. He was of opinion that the roads of class (a) should be included in the wanta. The other roads should not be included but the trees growing on half of these roads on the wanta side should be shown as the property of the wantadars because of the past practice. Roads passing through wantas should not be shown as of wantadars as otherwise they would obstruct and try to close them. In the next year, registers known as Jamabandi Feisal Patraks for Wadia, Ranipura and the village site of Amod were prepared (exhibits 208 to 211). The settlement registers were not ready for nearly ten years, and were completed in 1923. Exhibit 395 is the settlement register pertaining to the whole area comprised in the big survey No. 354 which included Wadia, Ranipura and Amod. In the Wadia register 1726 acres and 34 gunthas and 44 acres and 23 gunthas were shown as darbari, i.e. Thakor's, arable and kharaba lands, respectively, while the village site (16 acres and 8 gunthas), river (93 acres and 4 gunthas) and roads (50 acres and 22 gunthas) were not shown as darbari. In the Ranipura register 830 acres and 32 gunthas and 8 acres and 34 gunthas were shown as darbari arable and kharaba lands, while the village site (4 acres and 17 gunthas), (river 29 acres and 11 gunthas), small roads (36 acres and 22 gunthas) and big roads (10 acres and 29 gunthas) were not shown as darbari. Lastly in the Amod register 1631 acres and 13 gunthas and 113 acres and 13 gunthas were shown as darbari arable and kharaba lands, and the village site (63 acres and 35 gunthas), creek called Batrisi Khadi (13 acres and 5 gunthas) and roads (36 acres and 33 gunthas) were not shown as darbari. It is not explained why the village site of Amod, which was held to be of the Thakor's proprietorship in 1897, was not shown as darbari.
17. In the meanwhile, the Settlement Commissioner started correspondence at the end of 1922 for re-opening the question about the ownership of the roads in wantas (exhibit 73.) He questioned Khan Bahadur Mehta's opinion about the roads in class (a) being regarded as the property of the Thakor. In the Commissioner's opinion when a road was used by the public for the prescribed term of years, the right of the public became indefeasible. That was also, according to him, the effect of Section 37 of the Bombay Land Revenue Code, where the word 'Government' was used as equivalent to the public, So that a public road vested in the Government as trustee for the public. He did not think it necessary to consider whether it was or was not private property at some period in the past. In his opinion all roads used by the public in the wanta should be shown as Government property. As to trees standing on these roads also there was no reason why they should not belong to Government if the roads did. The Revenue Commissioner, N.D., accepted this opinion and cancelled Khan Bahadur Mehta's directions about the roads of class (a) and the trees (exhibit 70). Thereafter, the Collector reported that Khan Bahadur Mehta's directions about the tanks should also be cancelled on the same grounds as those about the trees (except in Amod) and that the previous order of his predecessor in 1915 about the trees be also cancelled. The Commissioner accepted that view and directed that tanks should also be shown as Government property (exhibit 69). The Thakor and other talukdars thereupon raised an agitation against these orders and ultimately Government published a Resolution in 1923 appointing a Committee to consider whether the entries made in village forms lately introduced were detrimental to the rights of talukdars (exhibit 75). The Commissioner, N.D., however, in 1924 recommended to the Government to accept the Collector's view that roads which were not through roads but merely afforded access to none but wanta lands along with the trees thereon should be regarded as the talukdar's. The rest must be held to be Government property (exhibit 74). Finally, on August 25, 1926, Government issued a Resolution giving its decision on the questions before us to this effect:--The Government recognized the Thakor of Amod as the hereditary proprietor of those portions of his wanta estates which were on the udhad tenure and as such subject to the payment of udhad jama and peshkush, but the Government was not prepared to admit the claims of the Thakor to proprietary rights over roads and tanks in his estate. It is this Resolution which is stated by the plaintiff Thakor as his cause of action in the ' present suit for a declaration and injunction against the Government.
18. Before beginning the discussion of the evidence it is necessary to deal with the provisions of law which bear on it. The main point of law arising in this suit is the application of Section 37 of the Bombay Land Revenue Code to the suit lands. Sub-section (1) of that section runs thus:--
All public roads, lanes and paths, the bridges, ditches, dikes, and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below high-watermark, and of rivers, streams, 'nallas, lakes, and tanks, and all canals, and watercourses, and all standing and flowing water, and all lands wherever situated, which are not the property of individuals, or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights) in or over the same, or appertaining thereto, the property of Government; and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as he may deem fit, or as may be authorized by general rules sanctioned by Government, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.
19. The plaintiff's contention is that the suit lands being his property and his rights over it having been established since ancient times, it is covered by the exception in that section. On the other hand, the defendant's contention is that whatever lands are used by the public are Government lands under Section 37, and that the exception does not apply to such lands. It is necessary, therefore, to construe that section, and in doing so, it would be useful to trace the history of its enactment. The earliest enactment in Bombay with regard to waste lands was Section 59 of Regulation I of 1808 which refers to the practice of making general grants to individuals for bringing waste lands into cultivation. This provision, however, applied to the Island of Salsette alone. Subsequent to that, there was an enactment of a general nature in Bombay Regulation III of 1814. The preamble to that Regulation stated, among other things, that 'the Ruling Power of the provinces now subject to the Government of Bombay has, in conformity to the ancient usages of the country, reserved to itself, and has exercised the actual proprietary right of lands of every description.' Previous to that there was an enactment in the Madras Presidency, Regulation XXXI of 1802, the preamble of which was to the same effect as this Bombay Regulation. The preamble in the Madras Regulation was discussed by the Privy Council in The Collector of Trichinopoly v. Lekkamasni . It was observed (p. 309):--
The object of the Reg. XXXI of 1802 was merely the protection of the revenue from invalid lakiraj grants, and to provide for the mode of trying the validity of the titles of persons claiming to hold their lands exempt from the payment of revenue; it was not intended to confer upon Government any title which did not then exist.
20. The preamble in the Bombay Regulation has been considered in two cases of our High Court. Referring to this preamble it has been observed in The Collector of Thama v. Dadabhai Bomanji I.L.R. (1876) 1 Bom. 352 (p. 361):--
The correctness of this statement is very questionable. The reports of Elphinstone, Chaplin, Grant Duff, Robertson, and others, indicate very clearly that a large portion of the ryots, and especially the mirasdars, are, according to the ancient usage of the country, proprietors of their estates, subject to the payment of a fixed land-tax to Government. The subject will be found discussed at considerable length in Sooryabhan v. Bukajee and Anr. (1855) 2 Morris 189. But, at any rate, the statement in the preamble of Regulation III of 1814 is consistent with the1 alienation of its proprietory rights by Government, or with its recognition of the existence of proprietory rights in individuals, in particular instances, whether before or subsequently to the Regulation.
21. In Baban Mayacha v. Nagu Shravucha I.L.R. (1876) 2 Bom. 19, the history of legislation about Government rights over waste lands in the Bombay Presidency is given at pages 37-39, and reference is made to this preamble as a more ambitious assertion of the proprietary right of the State in lands. It is held that that preamble should receive the same construction as that given to the similar preamble in Madras Regulation 'XXXI of 1802 by the Privy Council in The Collector of Trichinopoly v. Lekkamani , and the opinion is expressed that 'the more moderate proposition (that the proprietary right to waste land is prima facie vested in Government), contained or implied in Bombay Regulaitions I of 1808, Section 59, and XVII of 1827, Section 7, is reasonable and founded upon truth.'
22. The next provision is contained in Section 7 of Bombay Regulation XVII of 1827. It is as follows:--
Uncultivated land not exempt from assessment may be disposed of, with the Collector's sanction, for the benefit of the revenue.
Provided, however, that such disposal shall not in any way affect the claim to preference, the right of occupation, or any other rights which individuals may have over such land, as the same may, when contested, be established in a Court of justice.
23. Thereafter in 1868, so far as the lands in towns and cities were concerned, it was provided by Section 11 of the City Survey Act (IV of 1868) that 'in towns and cities all roads and lanes, and all open spaces not in the occupation of any person, and not proved to be the property of any person, vest in Government.'
24. Lastly comes Section 37 of the Bombay Land Revenue Code in 1879 which embodies almost the same idea in different language. It has been contended on behalf of the defendant that the words 'which are not the property of individuals' etc. refer only to 'all lands wherever situated', and have no reference to all the previous expressions. That construction seems to us to be erroneous. The words 'which are not the property of individuals' etc. would, in our opinion, apply to roads, bridges, beds of the sea, lakes, tanks etc. We do not think that the Legislature could have intended that only lands are capable of being owned by individuals and not roads, bridges, ditches, nallas, lakes, tanks, canals etc. The words 'except in so far as any rights of such persons may be established' will also similarly govern all the previous expressions and not merely lands. It is next contended, however, that in any case the words 'which are not the property of individuals' etc. do not apply to the opening words of the section, viz., 'All public roads, lanes and paths,' because the adjective 'public' would be inconsistent with private ownership in them. This contention is urged on the basis that roads etc. which are used by the public must be taken to be Government property. But that construction, in our opinion, is based on the erroneous view that there cannot be any public right over private property.
25. That the existence of a highway or a public road is consistent with the ownership of a private person in the soil can be deduced from the English as well as the Indian law. It is held in Sir John Lede v. Shepherd (1795) 2 Str. 1004 that by setting out a highway the owner does not part with the property of the soil. In Harrison v. Duke of Rutland  1 Q.B. 142 it is held as follows (p. 155):--
The soil of a highway belongs prima facie to the owner of the land adjoining it. If the land on either side is the property of different owners,, each is owner of the soil on his side ad medium filum of the highway. But this ownership is subject to the right of the public to use the highway. Any) use of the soil of the highway other than the legitimate use of it for the purposes of a highway is a trespass upon that soil as against the owner to whom it still belongs. These propositions are amply established by judicial decisions.
26. See also City of London Land Tax Commissioners v. Central London Railway.  A.C. 364. It is observed in The Law relating to Highways by Glen at page 30:--
The owner of the land who dedicates part of it as a public way may enjoy all rights not inconsistent with the dedication,
27. For distinction between a right of easement and the ownership of a highway see Pratt and Mackenzie's Law of Highways, 18th Edn., p. 2. The law is also summarized in volume XVI of Halsbury's Laws of England, Hailsham Edition, at pages 240-241, paragraphs 290-291, as follows:--
The public right in a highway being a right of passage only, an owner who expressly dedicates, or is presumed to have dedicated, land as a public highway retains at common law his property in the soil, and can transfer it by conveyance or lease to others.
There is a general presumption that the owner of land of whatever tenure adjoining a highway is owner also of the sail of one half of the highway, ... and a similar presumption arises in the case of a private or occupation road.
28. Under the Indian law also there is a presumption that a highway, or waste land adjoining thereto, belongs to the owners of the soil of the adjoining land [Nihal Chand v. Azmat Ali Khan I.L.R. (1885) 7 All. 362 The site of the road must be presumed to belong to the adjoining proprietors half to one and half to the other up to the middle of the road. Where the property is bounded by a road or a river, the boundary, even if given as the road or the river, is the middle of the road or the river, as the case may be.
29. It would follow, therefore, that the use of the road by the public for passage as of right is not inconsistent with the proprietorship of a private individual to the soil of road, and that, therefore, a road cannot be said to be the property of the Government because it is used by the public. Moreover, Section 37 uses the words 'are hereby declared to be the property of Government.' This expression is construed in Secretary of State v. Wasudeo I.L.R. (1907) 31 Bom. 456and the relevant remarks are as follows (pp. 460-61):--
But it was said that section 37 of the Land Revenue Code was a bar to the right claimed by the respondents. That section, however, has been held by this Court in Hanmantrav v. The Secretary of State for India I.L.R. (1900) 25 Bom. 287 and in Surannanna v. Secretary of State for India I.L.R. (1900) 24 Bom. 435 not to take away rights; which existed when it became law. No doubt the words in the section are ' are and are hereby declared to be ... the property of Government;' and there are authorities, according to which, in the case of a law; which is in its nature declaratory, ' the argument that it must not be construed so as to take away previous rights is not applicable.' See the judgment of Pollock, C.B., in Attorney-General v. Theo-bald (1890) 24 Q.B.D. 557 citing Att. Gen. v. Marquis of Hertford (1849) 3 Ex 670. But in Harding v. Commissioners of Stamp for Queensland  A.C. 769 the Judicial Committee of the Privy Council, in dealing with the argument that the expression ' it is declared' in an enactment is prima facia retrospective, observed that ' the use of the expression 'it is declared' to introduce new rules of law is not incorrect, and is far from uncommon. The nature of the Act must be determined from its provisions.' Section 37 itself provides that the ownership of Government, thereby declared, is subject ' to the rights of individuals legally existing.' Before the Land Revenue Code came into force, the law relating to the ownership of such lands was presumably the common law, according to which, ' where the soil is covered by the water forming a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land; and there is no case or book of authority to shew that the Crown is, of common right entitled to land covered by water, where the water is not running water forming a river, but still water forming a lake' (Per Lord Blackburn in Bristow v. Cormican (1878) 3 A. C. 641 .. Such appropriation to the Khots of the soil must be held to have been made when they were constituted hereditary farmers of the whole village, with the right to bring into cultivation all waste or uncultivated land in the village. Section 37 of the Land Revenue Code declares that Government are the owners of such lands. So they had been before that section became law, and so they are now. But that is not decisive of the right now claimed by Government so as to deprive the respondent Khots of the right acquired by them in virtue of the khotship to cultivate the lands.
30. In our opinion, these remarks would apply with greater force to the wanta lands of the plaintiff. In this connection we may lastly refer to a decision of our Court in Vinayakrao v. The Secretary of State for India I.L.R. 1897 23 Bom. 39, which is useful for two purposes, namely, the interpretation of Section 37 and the effect of a survey on title to lands. The dispute there was, among other things, about two plots of land, which were part of a village granted in inam to the inamdar. At the time when the village was surveyed, those plots were not given survey numbers, and the lower Court held that they had become part of the village site and belonged to the Government. It was held that Section 61 of the Bombay Land Revenue Code did not empower Government to confiscate any land belonging to an inamdar and confer it on another person, and the mere omission to number a land could not convert it into a village site or take away any existing rights. It was observed by Ranade J. (p. 45):--
If at a survey certain lands are not numbered or assessed by reason of their being kharab, it does not follow that the ownership of such land is thereby injuriously affected or curtailed. Numbering or surveying do not by themselves create or destroy rights.
31. On similar grounds it was held that the bed of a stream in the village also, belonged to the inamdar and that the owners of land on both sides were proprietors of the bed of the stream. Parsons J. observed (p. 44):--
Section 37 deals only with what is not the property of individuals, and can have no application to; the bed of a rivulet which flows through the land of any individual, for it would be the property of that individual who owned the land upon its banks.
32. This decision has an important bearing on the questions involved in this appeal, as the lower Court has based its finding on the entries in the various survey and revenue registers and held that the roads, tanks, etc. in dispute did not belong to the plaintiff, as the survey officers had not given them survey numbers at the various surveys and thereby decided that they did not belong to the plaintiff's estate.
33. We will now deal with the appreciation of the evidence by the lower Court and the reasons given by it for holding that the plaintiff is not entitled to the declaration sought except as to the items admitted by the defendant.
34. The learned Judge below seems to be of the opinion that the British Government never accepted the title of the Thakors to the lands in suit from the beginning. He observes that from 1819 the Bombay Government refused to recognize the alleged proprietary rights of the plaintiff's ancestors and their claims as tributary chiefs. That is no doubt true with regard to the Thakor's status as a tributary chief, but there is nothing to show that the Government from the beginning refused to recognize the Thakor as proprietor of all the lands contained in his wanta in the various villages in the Broach District, According to the learned Judge, the fact that the wanta portion of Amod was measured by a round survey only in 1819 by Monier Williams, whereas the rest of the lands at Amod were measured by a detailed survey did not show that the Thakor's title to the wanta was accepted. It is true that that survey was not meant to determine title to any estate. In fact it was not conducted under any legal enactment. But the fact remains that the lands in dispute were shown as forming part of the, wanta lands and were comprised in the total area of 5,300 kumbhas and 4 malas forming the wanta portion. It is the plaintiff's case that in all subsequent surveys they have been continued to be shown as part of the wanta although the area of the wanta has somewhat varied from time to time, and that, therefore, the title which his ancestors had from, the beginning over them had not been legally taken away by the Government at any time. Exhibit 41 does not say, either expressly or impliedly, that there was any refusal by the Government to recognize the Thakor's title to these lands. The learned Judge further observes that if the plaintiff had been recognized as a tributary chief, his lands in other villages except Amod and Buva would not have been surveyed in detail in 1819. But the plaintiff's claim in the present suit is not based upon his status as a tributary chief. It is admitted that his ancestors ceased to be tributary chiefs holding a political tenure under the British Crown, whatever might have been their status before. The plaintiff, however, relies upon the provisions of Sections 3 and 27 of Bombay Regulation I of 1823 which was enacted for defining the circumstances that constitute a title to hold land exempt, either wholly or partially, from the payment of revenue, and prescribing the rules of limitation in regard to actions of various descriptions. It is provided in Clause (2) of Section 3 that--
Whenever land has been enjoyed, but not under a deed or writing, wholly or partially exempt from the payment of the public revenue, for more than sixty years in succession by any person, his heirs or others, deriving right from him, such enjoyment, provided it has been under some tenure recognised by the custom of the country in which the land is situated; and more particularly under any of those specified in appendix A (wanta is the first to be included in the list' of tenures ire appendix A), shall be considered as a sufficient title to the exemption.
Then it is provided in Clause (3) that--
enjoyment of such exemption for twelve years, antecedent to the date when the territory in which the land is situated, came into the possession of the British Government, shall be considered as equivalent to enjoyment for 60 years, in terms; of the preceding clause.
Section 27 provides that--
Whenever lands, houses, hereditary offices or other immoveable property, have been held without interruption for a longer period than thirty years, whether by any person as proprietor, or by him, his heirs, or others deriving right from him, such possession shall be received as proof of a sufficient right of property in the same.
35. These provisions were reaffirmed in the subsequent Regulations V and XVII of 1827. Relying upon them the plaintiff contends that all the suit lands being part of the wanta, which was in existence before the Regulation of 1823 came into force, and the wanta having been enjoyed by him from ancient times, his title to all the lands included in the wanta has been affirmed by this Regulation, and since then he has not been legally deprived of his rights to these lands. It may be stated here that the plaintiff accepts the position that if the public has acquired any rights over the suit lands by long user, his rights in them will be subject to the rights in favour of the public, but that, subject: to these rights of the public, he continues to be the proprietor of the lands, The learned Judge below refers to the various surveys from time to time as not supporting the plaintiff's case, and he principally relies upon the remarks of Mr. Beyts in exhibit 409 as clearly repudiating the Thakor's right to the ownership of roads, tanks, etc. But as remarked above, these were only Mr. Beyts's opinions as opposed in some respects to the opinion of the Talukdari Settlement Officer, and his opinions were not wholly accepted by the Government. There is nothing to show that acting upon his opinion the Government decided that the suit lands did not belong to the Thakor. As we have seen above, exhibit 45, which is a Government record of the lands from 1852 to 1874, showed all the wanta lands in detail as of the Thakor. A clear distinction is there made with regard to roads, tanks, etc. in the talpad and in the wanta, and the latter are shown in the name of the Thakor.
36. The lower Court further relies upon the expression 'Government lump Jamabandi' as it appears in various Government records against the plaintiff's lands, but there again, as has been shown above, when the plaintiff protested against the use of that expression, it was pointed out to him that it did not imply that any part of the wanta was taken as Government property. On the other hand, the payment of compensation to the Thakor for acquisition of parts of a road in the wanta in 1871 and in 1911 would suggest that the Thakor's title to the roads in the wanta was not disputed by the Government.]
37. Then the learned Judge relies upon the fact that certain roads in the wanta had been constructed, and some repaired, by the local board from 1908 to 1923 under the Local Boards Act. It is true that some of the roads in the wanta were constructed by the local board while some others were only repaired. The evidence does not show the circumstances in which these roads came to be constructed by the local board, but the plaintiff has admitted before us that the roads constructed by the local board in his wanta would now belong to the local board under Section 48 of the Bombay Local Boards Act of 1923 which says that every road, building or other work constructed by a local board shall vest in such local board. But as to the roads which were only repaired by the local board, there is nothing in the Act to vest the ownership of them in the local board. Such power to repair a private road might be implied in Section 50, Clause (n), of that Act.
38. Then the learned Judge relies upon the contents of a letter, exhibit 493, by the Assistant Survey Superintendent to the plaintiff's ancestors as showing that the latter did not regard kharabas as their property but were anxious to have them separately stated and deducted and to have their estate surveyed. The interpretation put by the learned Judge on this letter is erroneous. What the Thakor really desired was that a survey might be introduced in his villages and the arable lands and the kharabas may be separately shown therein. What he meant was that the former survey was only a round survey and in the new survey the kharaba was to be deducted and separately shown from the arable portion. The letter, exhibit 559 of 1904, has also been erroneously interpreted by the learned Judge. It does not mean that the plaintiff had lost all his right to that road in that year. On the other hand, the letter assures the Thakor that when the road was diverted and the land fell into disuse, the Thakor would have the right over the same, and so long as the road existed, it would be used for public purposes. That rather supports the plaintiff's case than the defendant's.
39. The learned Judge seems to place much reliance upon exhibit 160 and the other pahani patraks of the Thakor's villages for 1886-87. He treats them as if they were a record of the Government. But that is not so. They were prepared by the officers of the plaintiff's estate which was at that time under the management of the Talukdari Settlement Officer. Various lands there were shown under the column 'Darbari or Inami' which meant belonging to the Darbar, i.e. the Thakor, or inami, i.e. given in gift by the Thakor to another person. In the principal register, exhibit 160, which relates mainly to the lands comprised in the big wanta survey No. 354, the area of the cultivated and uncultivated portion of each survey number is separately shown at the end of the register. There is a summary of the various roads, creek, and river bed in that wanta. Simply because of the fact that the word 'Darbari' is not shown in column 4 against these roads etc., the learned Judga comes to the conclusion that they were not meant to be shown as belonging to the plaintiff's estate. But that is really not so. At the end of the summary, the area of these: roads, creeks, etc. is added up as 137 acres and 10 gunthas, and that area is again added to the total area of the lands in that survey number and the grand total is stated as 3904 acres and 34 gunthas, which was the total area of all the lands including the kharaba portions in survey No. 354. There is nothing to show, therefore, that the roads, creek, etc. were admitted as belonging to the Government in this register. On the other hand, the creek known as 'Batrisi creek' covering an area of 17 acres and 7 gunthas comprised in this summary has been now admitted before us by the defendant as belonging to the plaintiff.
40. The learned Judge concludes his appreciation of the evidence as follows (paragraph 76 of the judgment):--
It is clear from all these considerations that the plaintiff has no inherent right to the ownership of the suit items either as a tributary chief of the pre-British period or as holder of the Udhad-Jamabandhi wanta, nor have any such extraordinary rights been recognized by the British Government at the time of the survey by Mr. Monier Williams in A.D. 1819 or by Mr. Beyts in 1864-74 or in the subsequent surveys referred to by plaintiff in his plaint,
41. In our opinion, the learned Judge has appreciated the evidence from a wrong stand-point. It is not the question whether the various survey officers have recognized the Thakor's right to the suit, lands. The real question is whether that right has ever been definitely negatived by any decision of the Government. The opinions and decisions of the survey and revenue officers as well as the entries in the survey records have, as has been shown before, no legal force as decisions of the Government negativing the Thakor's right. The really important point is that the suit lands have been included in the wanta portions as described in the revenue and survey records. It was not till the time of the detailed survey that the question arose as to how the roads, tanks, etc. were to be shown in the settlement registers. Even then Khan Bahadur Mehta was of the opinion that small roads beginning and ending in the wanta should be included in the wanta, and that small tanks situated in the middle of the wanta and not adjoining unalienated lands were also the property of the wantadars. He was also of the opinion that the trees growing on half of the road on the wanta side were the property of the wantadars. In this practice he was supported by the Collector of Broach, but his opinion was later on overruled by the Commissioner, N.D., and it was then that the matter was taken up by the Government which finally issued a Government Resolution negativing the Thakor's right to the roads and tanks in the wanta. That shows that there was difference of opinion even among Government officers themselves as to whether the suit lands should be regalrded as part of the wanta or not, and ultimately the view prevailed that those portions of the wanta which were used by the public should be held as belonging to the Government. But it left out of account the nature of the right which the wanta-holders claimed in their lands from very ancient times and which was accepted by the British Government.
42. It is necessary, therefore, to examine the legal basis of the right of the wanta-holders since the advent of the British rule. A talukdari wanta in Gujarat is neither an alienated nor an unalienated holding. It is a peculiar estate which continues to be the property of its holder under the British rule as it was in pre-British dynasties from ancient times. It was subjected to legislation from time to time. Bombay Regulation I of 1823 recognized the holder of the wanta as having a legal right to the lands comprised therein on payment of the fixed amount of revenue, and under Section 27 of that Regulation the possession of these wanta lands for thirty years was regarded as proof of a sufficient right of property in the same. This would show that the British Government recognized the wanta tenure and the right of its holder to the lands included in it. These land-holders found themselves in very embarrassed circumstances by sales and mortgages of their estates, and at one time their condition became so grave, especially in the Ahmedabad District, that Government in order to save them from extinction thought fit to give legislative protection to this class of very old landed proprietors who had passed through many vicissitudes partly on account of successive conquests of their territories but mostly on account of their own improvidence. The enactment of the Ahmedabad Talukdars Act (Bom. VI of 1862) was the first attempt by the British Government to ameliorate their condition by taking over for a limited period the management of their indebted estates, exempting the holders of such estates from arrests, providing for a scheme for the settlement of their debts and disabling them from incurring fresh debts binding on their estates during the management. It was probably thought that such legislative interference with a class of persons who were really absolute proprietors of their estates could not be justified unless they were described as having a lesser interest than proprietorship, and the preamble of the Act, therefore, began with stating that 'the Talukdari estates are now only held on leasehold tenure determinable at the pleasure of Government.' This recital, besides being incorrect, was inconsistent with the provisions of the Act itself, especially Section 20, under which they were meant to be restored to their position of absolute proprietors of their estates on the termination of the management. An interesting account of how they were purposely described as lease-holders for the purpose of saving them from the clutches of their creditors and thereafter to re-invest them with their real proprietary rights is to be found at pages 11 to 15 of Peile's Account of the Talookdars in the Ahmedabad Zillah (Selection No. CVI--New Series). This part of the preamble was doubted by our High Court in The Collector of Ahmedabad v. Samaldas Bechardas (1872) 9 B.H.C.R. 205. It has also been criticized in a judgment of our High Court quoted at p. 91 in Waghela Rajsanji v. Shekh Masludin as being notoriously contrary to historical truth and not consistent with the concluding portion of Section 7 of the Act. The implied approval with which it is quoted in Nathmam v. Secretary of State (1929) 32 Bom. L R 907 is not justified in view of this criticism.
43. In 1871, a similar Act (India Act XV of 1871) with a similar object was passed for the Talukdars of Broach which was, however, repealed by the Broach and Kaira Incumbered Estates Act (India Act XIV of 1877) which was in turn largely repealed by the Broach and Kaira Incumbered Estates Act (XXI of 1881). The object of this Act was also to relieve the im pecunious talukdars by taking over the management of their estates and the settlement of their debts. Finally, the Gujarat Talukdars' Act (Bom. VI of 1888) was enacted and applied to all the talukdars of Gujarat. As their estates could not be strictly regarded either as alienated or unalienated, a doubt arose as to the applicability of the Bombay Land Revenue Code to them, and its preamble, therefore, stated that the Act was enacted to remove those doubts. As the Record of Rights Act did not apply to talukdari lands, a provision similar to that Act was made in Section 5 for the preparation of settlement registers and certain provisions of the Bombay Land Revenue Code were, by Section 33, excluded from application to talukdari lands.
44. This account will make it clear that a talukdar is neither an inamdar nor an occupant of his lands. His wanta is a freehold and not a leasehold. What was paid formerly as tribute and peshkush as a political levy is now converted into a fixed amount in lump as a revenue payment, but his proprietary right over all the lands comprised in the wanta was affirmed at the commencement of the British rule and has not since been taken away by any legal process.
45. In 1878 Mr. Beyts considered it unnecessary to enquire into the claims of the Thakor over roads and grazing grounds in face of alleged wholesale encroachments on Government waste lands. But in 1912 the Survey Settlement Officer assured the Thakor that he would not be deprived of any excess if his vanta measured more than the recorded area (exhibit 424). Thus the recorded area which, as we have shown above, originally included the roads, tanks, etc., had been accepted as the Thakor's property.
46. Conflicting opinions were no doubt held by Government officers from time to time as to the nature of the right. Officers like Mr. Beyts were inclined to treat some of the rights which the talukdars claimed for their wanta lands, for example, rights to village sites, as 'antiquated privileges of which no public necessity can be advanced as an excuse.' Some Talukdari Settlement. Officers were of the opinion that their ancient rights should be respected. But the tendency to treat them more like holders of unalienated lands than absolute proprietors of their wantas was apparent on the part of zealous revenue officers. That whatever was used by the public inside the wantas belonged to the community and therefore to the Government, became a common belief in the revenue department. The distinction between the rights of the public and the rights of the Government and the capacity of the public to acquire rights over private as much as over Government property were not taken into consideration in forming their opinions.
47. We will now deal with the various items in suit in the light of the evidence and the legal position as discussed above. Originally there were 244 items in suit distributed over twenty villages. During the pendency of the suit, however, the defendant admitted the plaintiff's title to several items out of them in the statement, exhibit 198, which was in reply to the plaintiff's statement, exhibit 189, containing the list of the properties claimed by the plaintiffs. One or two more items were admitted by the Government by their statement, exhibit 278. In their statement, exhibit 279, the Government conditioned some of their admissions in some of the former items by stating that those lands were subject to the right of the public to the use of them. But the learned Judge below did not accept the subsequent conditional retraction, and this statement, therefore, may be left out of account. It appears that by their statement, exhibit 198, Government admitted 98 items out of 244. Out of the items 1 to 60 in Amod, Government admitted items 1 and 3 to 46 by exhibit 198. Item No. 2 is a big creek known as Batrisi Khadi, covering an area of 13 acres and 5 gunthas. The lealrned Judge held that the plaintiff] had not proved his title over the same, and relying on the Feisal Patrak, exhibit No. 255, he held that it belonged to the Government. The plaintiff's case is that the area of this creek is included in the originally recorded area of the wanta and that he has also been in possession and enjoyment of it from the beginning. He further points out that the area of 197 acres and 15 gunthas shown in the Feisal Patrak, exhibit No. 255, referred to another creek situated to the south-west and not the Batrisi creek, and that the lower Court was under a clear misapprehension in confusing it with the creek mentioned in that exhibit. He produced evidence to show that the villagers had passed leases to him from time to time for parts of the Batrisi Khadi and that fees were levied by the Thakor from the people for the use of earth, from the Khadi. It is, however, unnecessary to refer to this evidence in detail as during the course of the argument before us the learned Assistant Government Pleader on behalf of the defendant conceded the plaintiff's title to this Khadi. Items Nos. 3 to 46, which have been conceded by the Government in the lower Court, are roads for passage situated inside the survey numbers in the wanta. The reason for making this concession seems to be this:--In the latest survey the survey officers included small roads of passage which ran through the fields in the respective survey numbers themselves, but for big roads they did not give any survey numbers but showed them between the numbered fields. These latter roads were called hade pakadela marag, i.e. boundary roads. As the plaintiff's title to all the roads in the wanta was denied, he prayed for relief for the passages situated in the fields, and the defendant conceded the plaintiff's title to all the small roads for passage through the numbered fields. Such roads in the Amod area are items Nos. 3 to 46. But Government did not concede the plaintiff's right with regard to the boundary roads even though both sides of them were flanked by fields inside the wanta. These latter roads are items Nos. 47 to 59. Item No. 47 is what is known as the Achhod Road situated in survey No. 354. In exhibit No. 45, the Government register of lands for 1852, this road is shown under item No, 643 in the wanta land in the name of the Thakor and not shown for public passage such as the roads in the talpad area were shown. In the plan, exhibit No. 92, which shows Beyts's survey, this road is shown as in survey No. 354, but it is not given any number. In exhibit No. 512, the register for 1878, it is included among the roads of the total area of 50 acres and 22 gunthas situated in the kharaba of the wanta. In exhibit No. 395, the settlement register of 1923, this road is included in the passage, 36 acres and 33 gunthas, but not shown as the plaintiff's. It is conceded on behalf of the plaintiff before us that people have used this road for passage at least from 1852, but he says that it was originally a part of his holding, and therefore, Section 37 of the Bombay Land Revenue Code does not apply to it and make it the property of the Government, even though people might have acquired rights of way over it. There does not seem to be any clear evidence whether this road was repaired by any local body or by Government. But it is contended that even if it were repaired by the local board, it would not vest in the local board for that reason.
48. Item No. 48 is a road from Amod to Khar. The same arguments urged for item No. 47 apply to this road also except that it was not shown in Beyts's survey. Item No. 49 is a road from Khar joining the road in item No. 48, andi item No. 50 is another road. The same arguments apply to these two roads as those urged for item No. 48. Item No. 51 is a narrow passage for going to agricultural area, and it is part of a long old road known as Amod Jambusar road. It is shown as item No. 790 in exhibit No. 45 as belonging to the Thakor's wanta. Items Ncs. 52, 53 and 54 are continuations of the road in item No. 51 and the same arguments apply to them. Item No. 55 is a road between two survey numbers of the wanta, and item No. 56 is also a similar road. The defendant's advocate has admitted the plaintiff's title to these two items, Nos. 55 and 56, during the course of argument before us.
49. As to items Nos. 57, 58 and 59, the plaintiff has not pressed his case before us, as item No. 57 is outside survey No. 354, item, No. 58 is a public road to Broach constructed by the local board, and item No. 59 is the Palej road also constructed by the local board. It may be noted here that it was a part of the road in item No. 58 which was acquired in 1871 and compensation therefor was paid to the Thakor as stated before. Item No. 60 is the railway line and it is not claimed by the plaintiff.
50. We next come to the disputed items in the village of Wadia. This village is a part of the big survey No. 354 and the kharaba area thereof is 204 acres and 17 gunthas. Kharaba, lands out of this area measuring 44 acres and 23 gunthas have been admitted by the defendant as of the plaintiff's ownership in exhibits 198 and 278. The remaining items are the village site, the roads and the river. The village site measures 16 acres and 8 gunthas. The defendant contended in the trial Court that it did not belong to the plaintiff, although, as we have seen above, the plaintiff's title to the village site of Amod had been admitted by the Government long ago and was not put in issue in this suit. The plaintiff's case is that this village site stands on a better footing than the village site of Amod. In exhibit No. 45 of 1852 it is item No. 981 shown as belonging to the Thakor. In Beyts's survey of 1878, its area, which was then 6 acres and 10 gunthas, was shown as situated in the wanta. It was in 1913 that this village was separated from Amod. In the settlement register, exhibit No. 395, however, the village site was not shown as the plaintiff's kharaba. There is no reason why this village site should not belong to the plaintiff just as the village site of Amod. But it is not necessary to pursue this point further as the defendant's advocate finally conceded the plaintiff's title to it before us. As to the roads which cover an area of 50 acres and 20 gunthas, they are items Nos. 938 and 948 in exhibit No. 45 of 1852. They are known as Amod Wadia road and Amod Bozadra road. They are referred to by the plaintiffs witness Purshottam, exhibit No. 389, in paragraphs 79 to 86 of his deposition. These roads would also belong to the plaintiff subject to the rights of the public for passage, if any. The last item in Wadia is the area of the river bed comprising 93 acres and 4 gunthas. This item will be treated separately at the end as the plaintiff does not claim it as part of his wanta but on his rights under the common law.
51. Then with regard to the plaintiff's lands in the village of Ranipura, the defendant has admitted the plaintiff's title to items Nos. 1, 2, 4 and 6 out of the total area of 8 acres and 34 gunthas. Item No. 6, which is a local board bungalow, has been admitted by the plaintiff as not belonging to him. Items Nos. 3 and 5, which are a road and a burial place, had been conditionally admitted by the defendant in exhibit No. 279, but the learned Judge has held them as unconditionally belonging to the plaintiff. The remaining items are the village site of Ranipura measuring 4 acres and 17 gunthas. This village was populated on its present village site after 1917 when the former village site situated in another place of the wanta was abandoned. It is clear on the evidence that this new village was populated on the plaintiff's fields in the wanta, and during the course of arguments before us the defendant's advocate conceded the plaintiff's ownership over it. There is another item in dispute, namely, the bed of the river measuring 29 acres and 11 gunthas which we will take up separately at the end. The roads in Ranipura, measuring 36 acres and 22 gunthas and 10 acres and 24 gunthas, stand almost on the same footing as the roads in Wadia, with the general condition applying to both of them, namely, that the portions of these roads constructed by the local board have been admitted by the plaintiff as vesting in the local board, and the plaintiff has further admitted the right of the public of passage over them if such right is proved.
52. These three villages comprise the plaintiff's land in the big survey No. 354, The remaining lands in dispute are situated in various villages as shown in paragraph 82 of the lower Court's judgment. It is not necessary to deal with therm in detail. The plaintiff's contention with regard to them is the same as it was with regard to the lands in survey No. 354, namely, that they are his property subject to the right of the public, if any, for passage.
53. I may summarize here the contentions as well as the admissions made by Mr. Munshi on behalf of the plaintiff-appellant with regard to roads, tanks and creeks in general:--
(1) The plaintiff admits that the road from Palej to Jambusar, item No. 59, and the road from Broach to Jambusiar, item No. 58, and the road L to M in the plan, bounded on one side by Ranipura Survey Nos. 11, 12, 30, 31, 32, 27, 23 and on the other by Survey Nos. 10, 41, 40, 39, 38, 37, 33, 34, 35 and 36, vest in the local board as they have been constructed by it and the plaintiff does not claim ownership over them.
(2) Roads passing through wanta lands and going beyond belong to the plaintiff subject to the rights of the public to pass and re-pass over them as highways.
(3) Roads which end in the wanta to the extent to which they are in the wanta land, whether numbered or not, belong to the plaintiff subject to the right of the public, if any.
(4) The plaintiff is the owner of the soil and sub-soil of the road when it is bounded on both sides by his wanta lands, and only to the extent to which it is so bounded.
(5) The plaintiff is the owner of the soil and sub-soil of the road on which the wanta land abuts up to the middle of the road when the property on the other side is not the wanta land of the plaintiff.
54. Then with regard to the tanks, the plaintiff's contention is that if a tank is in a survey number or is, surrounded by wanta land, it belongs to the plaintiff.
55. With regard to the creeks or khadis, the creeks in the other villages are on the same line as the Batrisi Khadi which has been conceded by the defendant as of the plaintiff's ownership.
56. We think that these contentions as well as admissions accord with the view which we have taken of the evidence as well as the legal rights of the plaintiff in the suit property, and that the plaintiff, therefore, would be entitled to a declaration with regard to those items which would be found to be of his ownership according to these tests.
57. There remains now the last item of the bed of the river at two places. The area of the river bed in Wadia is 93 acres and 4 gunthas, and in Ranipura 29 acres and 11 gunthas. It is conceded by the plaintiff that the river is not included in the wanta kharaba at any time but he claims it on his rights under the common law on the ground that the lands of the two villages of Wadia and Ranipura abut on one side of these rivers. It may be stated here that the plaintiff's title to the river, if any, is not negatived by the Government Resolution, exhibit 35, which is the cause of action for the present suit; but the plaintiff has asked for a declaration of his rights with regard to the river-bed as all his rights to roads, tanks, etc. In the wanta were denied. The plaintiff claims half the bed of the river in so far as it touches the plaintiff's wanta on one side of the river, there being Government land on the other side. In the private survey of the plaintiff's estate, exhibit 160, half the river-bed was shown in the area of the estate, but it is not mentioned in the other record of the suit. For his common law rights, the plaintiff relies on the full bench decision of the Madras High Court in Venkata Lakshminarasamma v. The Secretary of State I.L.R. (1918) 41 Mad. 840, F.B.. The decision in that case is that in the case of a grant of land bounded: by a non-navigable river, the presumption is that the grant passes to the grantee the bed of the river ad medium filum aquae, and that the onus of showing the contrary is on the grantor. The decision in Baban Mayacha v. Nagu Shravucha I.L.R. (1876) 2 Bom. 19, 40 has been followed in this case. We think that the presumption referred to in this decision has not been rebutted on behalf of the defendant. There is nothing to show that the plaintiff has been deprived of this right by the Government. As has been observed above, under Section 37 the bed of the river would not belong to Government if it is proved that it is of the plaintiff's ownership. According to the decision in Secretary of State v. Wasudeo I.L.R. (1907) 31 Bom. 456 quoted above, Section 37 saves the common law rights of private persons which existed at the date when it came into force. If, therefore, the plaintiff had the right to the river-bed in common law, there is nothing in Section 37 to deprive him of the same. The decision in Secretary of State for India v. Bijoy Chand Makatap I.L.R. (1918) 46 Cal. 390 is also in the plaintiff's favour. It is held there that by the coimmon law of the country, the right to the soil of a river when flowing within the estates of different proprietors belongs to the riparian owners up to the middle thread. The plaintiff would, therefore, be entitled to a declaration with regard to half the bed of the river in these two villages.
58. The only point that remains now is the defence of limitation, and in view of the discussion of the evidence, it is not necessary to dwell on it at length. The lower Court held that the plaintiff's suit was time-barred under Article 120 of the Indian Limitation Act as his rights to the lands in suit were negatived by the Government long before the suit was filed. In fact, according to the lower Court, they were not recognised at all. We have, however, held on the evidence that the Thakor's title to the suit lands was not definitely denied by the Government till 1926 when the Government Resolution was issued denying the plaintiff's claim to the roads and tanks. Before that, as we have stated above, there were various opinions expressed by Government officers and entries made in the revenue and survey records. We do not think that those entries made before the detailed survey began in 1913 expressly negative the plaintiff's right. But even assuming it to be so, those entries, as held above, cannot be regarded as amounting to decisions about title one way or the other. In our opinion, the plaintiff's cause of action arose only when after the protracted correspondence relating to the manner in which the entries were to be made in the settlement registers it was finally decided by the Government Resolution that those entries should not declare the plaintiff's right to the roads and tanks, etc. The decisions in Surannanna v. Secretary of State for India I.L.R. (1900) 24 Bom. 435 and Sursingji Dajiraj v. Secretary of State : (1926)28BOMLR1213 , are in favour of the plaintiff's contention that the cause of action did not arise before 1926. The suit, therefore, filed in 1927 is in time.
59. We will now ask the learned advocates on both sides to prepare a statement showing the various items which would be found as of the plaintiff's ownership, whether with or without the right of the public over them, in the light of our decision.
60. July 26. The learned advocates on both sides have prepared a statement in the light of our decision and we now proceed to pass the decree in the appeal.
61. The decree of the lower Court is set aside and the following decree is substituted in its place:--
62. The plaintiff is declared to be the full and absolute proprietor of (a) the river-bed ad mid filum in Wadia and Ranipura, (b) all the roads, tanks and other waste areas which are within or bounded by his wanta lands, (c) the roads up to the middle line where wanta lands abut on them on one side, and (d) in particular the items mentioned in the schedule attached, (e) the items regarding which declaration has been granted by the trial Court in the plaintiff's favour, and (f) the items admitted by exhibit 279.
63. The plaintiff is granted an injunction against the defendant restraining the latter and his servants and agents from interfering with the rights of the plaintiff declared above.
64. The defendant should pay the plaintiff's costs of the appeal and the trial Court, including the costs from the date of the filing of the suit to September 29, 1933.