1. These writ petitions filed under Art. 226 of the Constitution of India seek to quash the order of the Estates Abolition Tribunal, Krishna dated 10-1-1968 by the issue of a writ of certiorari. The Tribunal's order is a common order passed in several Tribunal appeal suits. The writ petitions confine the attack on this order to the items in regard to which decision has been given by the tribunal against the petitioner.
2. The estate of Devarakota was notified under the Estates Abolition Act and taken over by the State Government on 7-9-1949. The petitioner, who is a landholder, applied for the grant of patta under Section 12(a) of the act in respect of several items of lanka lands situate in seven villages within the ambit of Deverakota estate on the ground that these lanka lands are his private lands. The claim was based on three grounds. It was firstly contended that the lands in dispute are situate in the river bed of Krishna and since the petitioner is a riparian owner, he is entitled to the river bed up to the middle thread of the stream. He is entitled to the villages on both sides of the river which abut the lanka lands. Thus he is entitled to the whole bed of the river. It was secondly contended that the grant made by the Government at the time of the permanent settlement included these lands and therefore he is entitled to the entire area comprised within the villages named in the grant which area extends upto the middle thread of the Krishna river. The third ground was that since the petitioner and his predecessors have been in enjoyment for over the statutory period, even if it is held that these lanka lands were not part of the grant, they have become by adverse possession owners of the said lands.
3. Broadly stated the Assistant Settlement Officer dismissed the petitions mainly on the ground that the evidence put forth by the petitioner did not satisfy the test laid down for the private land.
4. On appeals by the petitioner in all these cases to the Estates Abolition Tribunal, the tribunal remanded the cases to the Assistant Settlement Officer with a direction that he should first decide as to whether Krishna river at the points where these lanka lands are situate is a tidal and navigable river as it thought that the claim of the petitioner to these lanka lands can be decided mostly on that ground.
5. After the matter thus went back to the Assistant Settlement Officer, he made enquiries. He reached the conclusion that the river Krishna running at the points where lanka lands have formed and in regard to which patta is claimed is navigable and tidal. He therefore held that the river bed belongs to the Government. Rejecting the other contentions of the petitioner, the Assistant Settlement Officer granted patta for some lands and rejected with regard to others.
6. When the matter again came up on appeals to the Estates Abolition Tribunal, the tribunal in an elaborate judgment considered the various points advanced before it. For our purpose it would perhaps be enough to mention that the petitioner wanted a patta both in respect of lanka lands known as Seethapeda lanka of an extent of 237 acres and 35 cents and the lanka land known as river lanka of an extent of 12 acres. These two items are situate in Nimmagadda Village. The application was numbered as S. R. 15 (1)- 2/53 by the Assistant Settlement Officer, Nuzvid. The Assistant Settlement Officer granted ryotwari patta in respect of a portion of Seethapeda lanka situate in the north of the red marked line in the sketch attached to the order. He disallowed rest of the claim. That order was set aside and the case was remanded. The Assistant Settlement Officer after remand disallowed the claim in respect of Seethapeda lanka. The petitioner gave up his claim in regard to the river lanka. He however, preferred T. A. S. No. 47 of 1959. The Tribunal allowing the appeal held that the petitioner is entitled to ryotwari patta in respect of Seethapeda lanka situate in Nimmagadda and Cheedepudi to the extent of the lanka to be delivered by the authorities charged with the duty of granting pattas on the lines suggested by it. It was further held that the land on which there are babul or other trees should be excluded.
7. The petitioner applied for patta in respect of 56 items of lanka lands situate in Gajula lanka. It was S. R. 15/35/53.
8. The Assistant Settlement Officer originally disallowed the claim in respect of Items 13, 55, 2 and 10. Separate proceedings were directed to be taken in respect of Items 11, 3 and 9. The petitioner gave up his claim for items 1, 12, 14, 17 to 56. The Tribunal remanded the case. After remand the Assistant Settlement Officer allowed the claim of the petitioner in respect of Items 2 to 7 and a portion of Item 8. The petitioner preferred appeal in regard to Items 8, 10, 11, 13, 15 and 16. He, however, gave up his claim regarding items 15 and 16. The State Government also preferred appeal against items 2 to 7 and a portion of Item 8 The Tribunal allowed the appeal of the petitioner in so far as Item 11, Vallabhamanikyam lanka lands, and his appeal regarding items 8, 10 and 13 was dismissed. The Government's appeal was dismissed. The petitioner prays in the writ petition to quash order of the Tribunal regarding Items 8, 10 and 13.
9. The petitioner also applied for the lanka land known as Lankapalli Dari Lanka. The extent is 60 acres and is situate within the limits of Gajulalanka. It was S. R. 15/77-53. After remand the Assistant Settlement Officer disallowed the petitioner's claim. He preferred an appeal to the tribunal. The tribunal held that the claim of accretion put forward by the petitioner was not correct. The appeal was therefore dismissed . That part of the decision is sought to be quashed.
10. The petitioner claimed seven items of Nadakuduru village, which was S. R. No. 15/8-53. After remand the petitioner gave up his claim in respect of Items 1 and 7. The Assistant Settlement Officer disallowed the claim in respect of Items 2 to 6. On appeal to the tribunal it was allowed in so far as Letha Lanka ( Item 2 ) Pottilanka ( Item 3 ) and Lachigani Lanka ( Item 5 ). The appeal in so far as it related to Items 4 and 6, Isuka Lanka, Singi lanka and Sukanivani lanka all comprised in Item 4 and Amudala lanka ( Item 6 ) was dismissed. A direction was given by the tribunal to separate these lands.
11. In yet another application, the petitioner had claimed six items of lanka in Cheedepudi, Nimmagadda and Srikakulam villages. Part of item 6 is situate in Nimmagadda. Item 4 Venkidibba is situate in Srikakulam village. The application was S R. No .. 15/3/53. After remand, the Assistant Settlement Officer disallowed the claim of the petitioner in respect of all six items. The tribunal allowed the appeal in regard to Items 4 and 6. In regard to Item 7 the tribunal found that it was in existence in 1951 but was submerged subsequently. The actual extent of the land was directed to be ascertained. The tribunal disallowed the claim in respect of Kaki Dibba, Subbaiah Dibba, Jellala Dibba and Venkaiah Dibba, Items 1, 2, 3 and 5 respectively. The writ petition seeks to quash that part of the order.
12. Another application was filed claiming patta in respect of five items of lanka lands situate in Kokkiligadda village. The Assistant Settlement Officer after remand disallowed the claim in respect of Items 1, 4 and 5. The petitioner gave up his claim in respect of Items 2 and 3. He, however, preferred an appeal in regard to Items 1, 4 and 5. The Tribunal allowed the appeal regarding Item 5 Lachigani Lanka. The appeal was dismissed relating to Items 1 and 4, Ravi Lanka and Padaka lanka. The writ petition concerned seeks to quash the order of the tribunal relating to items 1 and 4.
13. Yet another application was filed claiming patta in respect of ten items of lanka lands situate in Srikakulam village. After remand the Assistant Settlement Officer rejected the claim in respect of Items 2 to 8. The petitioner gave up his claim in respect of Items 9 and 10. He, however, preferred appeal regarding Items 2 to 8. The tribunal allowed the appeal in regard to Items 1 (a) and 1 (b) Mangala Lanka and Venkdibba and Vallabhamanikyam lanka. The appeal relating to Letha lanka, Maladibba, Gogula Dibba and Ummala dibba was dismissed. That part of the order is sought to be quashed.
14. In another application registered as S. N. No. 15/31, on remand the Assistant Settlement Officer allowed the claim of the petitioner in respect of 10 acres of land comprised in Potharajudibba, items 3, 4, 5 and 6 excluding an extent of 25 acres granted by the landholder in favour of Mohammedans, item 7 and rejected the claim in respect of other items. On appeal, the tribunal allowed the appeal as regards items 8, 9, 12 to 14 and dismissed the appeal as regards Item 2 northern Rellu lanka and Items 10, 11 and 15 to 18. To that extent the petition seeks to quash the order of the tribunal.
15. It is, in our view, unnecessary to mention as to in what writ petition the above mentioned items are in dispute since nothing turns upon them.
16. The first contention, which is common to all these writ petitions, urged before us was that the tribunal was wrong in holding that the river Krishna is a tidal and navigable river at the points where the lands in dispute are situated.
17. We should have noticed earlier that the grant was made in 1802. The grant amongst others consisted of the seven villages with which we are concerned. The lands re-referred to above now in dispute are situate abutting these villages. The islands are formed often because of floods in the river Krishna. Sometimes they disappear and new lankas are formed. The lankas on the date of the abolition which existed were claimed by the petitioner as his private property. The contention now is that since he river Krishna is not navigable or tidal at the points where those lanka lands are situate, the accretion forms part of the petitioner's land which abuts the river. The argument therefore was that we should hold that these lankas were part of the grant made in 1802. Even otherwise, they were owned by the petitioner and not by the Crown.
18. It was a common ground that although the seven villages referred to above have been named in the grant, the boundaries of the villages are not mentioned. The contention however, was that since the villages abut the river Krishna the landholder is the owner upto the mid-stream of the river and wherever lankas are formed , they become his property. It was disputed that river krishna at those points is navigable or tidal.
19. Now, the law in regard to river bed in so far as India is concerned is not in doubt. In ordinary language the bed of a river is that portion of its soil which is alternatively covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain at its average and mean stage during the entire year without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn. In other words, the bed is the channel of the river between its banks which accommodates the flow of water when the river is neither dry nor overflowing.
20. Since the grant does not expressly mention the river-bed which depends upon the tidality or navigability of this river at the relevant points, if it is found that river Krishna at those points is tidal or navigable, then the presumption is that the river-bed belongs to the Government and not to the owner of the abutting village. The burden then shifts on him to show how he has become the owner of the river bed lankas. That he can prove either by right of prescription or by grant.
21. Now the river Krishna is the second largest of the east-flowing rivers of peninsular India. It rises in the Western Ghats in Maharashtra, Mysore and Andhra Pradesh. This river flows for near 800 miles across the peninsula before it reaches the sea in the east.
22. In the District Manual of Krishna compiled by Gordon Mackenzine, the Krishna is described as follows :--
'The river Krishna has a course of 800 miles and the area which it drains is computed at 97-050 square miles. The average fall of the river in the 259 miles above Bezwada is 3.5 feet per mile, but after the stream quits its narrow rocky bed among the hills at Chintapalle and widens out past the Kondapalle range of hills, the average fall is only 1.5 feet per mile. When it reaches Bezwada it is confined between two gneissic hills, the width of the gorge being about 1300 yards. At this point, the velocity of the river current in flood is rather more than 61/2 miles an hour and the maximum flood discharge attains the enormous figure of 761,000 cubic feet per second. The silt carried by the flood water is 1/432 of the entire bulk. Bezwada is about 47 miles distant in a direct line from the sea, but the river tends southward and has a course of 60 miles below Bezwada before it disembogues into the Bay of Bengal. ( vide also the Imperial Gazetteer of India Vol. XV at page 334, and the Times Gazettee of the World edited by G. G. Chisholm ( 1889 ) page 821. '
23. In Secretary of State v. Venkatanarasimha, ( AIR 1920 Mad 295 ) at p. 296 Sadasiva Aiyar, J. Gives the following description .
'The river Krishna is tidal and navigable for a distance of eight miles from above the place where it falls into the sea. Beyond the said eight miles it ceases to be tidal but it is navigable for about five months in the year between June and November for a length of about fifty-eight miles upto the Bezwada anicut. '
24. In (AIR 1920 Mad 295) the villages with which the case was concerned related to Vallur estate. It appears that the said villages were situated with the reach of 3 1/2 miles from Bezwada.
25. In State of Andhra Pradesh v. Suryanarayana, : AIR1963AP94 Seshachalapathi, J. Observed:
'There is, therefore, no question that Krishna is a mighty river and belongs to the class of great rivers of India to which the presumptions applicable to English rivers, cannot be applied in their entirety.'
The lands with which the learned Judge was concerned were situate 44 1/2 miles from Bezwada. We are, however, concerned in this case with seven villages which are situate within a range of 24 to 32 miles as stated by the learned Advocate for the petitioners from Bezwada but as contended by the learned Government Pleader from the sea. That dispute need not detain us because in our view not much turns upon that.
26. Whatever might have been the legal position in America or in England, it is now fairly settled that in so far as India is concerned, tidality is not an essential basis to decided the ownership of the river bed. It is firmly held that if the river is either tidal or navigable, at the relevant point, a presumption would arise that the river bed at those points vests in the Government. It is of course true that if it is found that the river was either tidal or navigable at the points, with which we are concerned then the Government becomes the owner. The navigability must of course be throughout the year and must be for the purpose. If this test is satisfied, then it is the Government which would be considered as the owner of the river bed. That this is so is seen from not only AIR 1920 Mad 295 but also from S. Subbarayudu v. Secretary of State, ( AIR 1927 Mad 988 ) and Madras Province v. Jagannadha Raju, ( AIR 1945 Mad 396 ). In the last mentioned decision it is held that the bed of a tidal and continuously navigable river belongs to the Crown. It is further observed that :--
'The bed of a river is the area over which the river will follow in a normal condition and which will sometimes be covered and sometimes left bare according to the quantity of water coming down the river. The question whether any particular piece of land or is not to be held part of the bed of a river at any particular spot, at any particular time, is one of fact, often of considerable difficulty to be determined, not by any hard and fast rule, but by regarding all the material circumstances of the case, including the fluctuations to which the river has been and is subject, the nature of the land, and its growth and its user. '
27. The question then is whether this test has been accepted by the tribunal. After going through the judgment of the tribunal we are satisfied that the tribunal has correctly laid down the test to find out the ownership of the river bed on the lines indicated above. No fault therefore can be found with regard to the test which the tribunal kept in view for the purpose of its application to the facts of the present case.
28. The next question is whether the test has been properly applied to the facts of the present case. Considering the order and hearing the arguments of both the learned advocates, we have no hesitation in reaching the conclusion, that the test has been properly applied by the tribunal by reaching this conclusion. The tribunal considered the evidence of P. W. 1 and R. W. 4 who are Engineers produced by the parties. The tribunal observed :
'As already stated the evidence regarding the navigability of the river based on the available flow of water in the consists of the oral testimony of these engineers and as the relevant records, I. E., the Anicut registers are not on record it is not possible to rely on the oral evidence which is contradictory to R. Ws. 2 and 4 asserting that the discharging would be about 100 cusecs during summer. Therefore, the only reliable basis available is the statement in Ex. B-12 which must have been made on the basis of the investigations carried on for the purpose of ascertaining the navigability and tidality of the river. So far as Ex. B-12 is concerned, there cannot be any doubt as to its authenticity, because even P. W. 1, admits that it is prepared under the authority of the Government. '
The tribunal further observed :--
'In view of the fact that R. W. 4 does not base his evidence on readings and satistics collected by any departmental authorities, P. W. 1's evidence on this aspect which is based on some data which is available appears to be more reliable than the evidence of R. W. 4 but it would not outweigh the circumstance that Ex. B-12 is entitled to acceptance. The data considered by P. W. 1 consists of the following documents Exs. A-16, A-17, A-18, A-20, A-22 and other documents referred to by him at pages 20 to 24 of his deposition. Thus, both as regards the tidality and navigability of the river Ex. B-12 can be taken as a satisfactory basis. As regards the tidality Exs. B-8 to B-10 may be acted upon. '
29. What becomes immediately plain is that not only the Assistant Settlement Officer but also the tribunal considered the oral as well as documentary evidence, and placing reliance mostly on Exs. B-8, B-10 and B-12 and on a consideration of the circumstances, reached the conclusion that at the relevant spots the river Krishna is both tidal as well as navigable. If once it is realised that this conclusion is a conclusion of fact arrived at by both the tribunals, it would not be open to this Court in a proceeding under Art. 226 of the Constitution to re-appreciate the oral as well as the documentary evidence in order to find out whether the conclusion has been rightly arrived at. The conclusion was not attacked on any permissible ground. It was finally attacked on the ground that in AIR 1920 Mad 295 when it was found that the river at the points where Vallur is situated was neither tidal nor navigable and when in AIR 1963 Andh Pra it was found that at the point at which that case was concerned it was navigable and since the point with which we are concerned lies between the two points considered in these two decisions, we should hold that the river Krishna at those points is neither available nor tidal. We do not think there is any logic or substance in this contention. Those cases were decided in regard to different points on different evidence. Because of the conclusion reached in those cases, we fail to see how only one conclusion in the present case in regard to altogether different points is even possible. One has therefore, to necessarily consider the points of navigability or tidality at the relevant points on the basis of the material available in the present case. Since the tribunals have reached the conclusion after a fair consideration of the relevant materials, we fail to see how it is possible for this Court to take a different view.
30. However, the ground of attack on that conclusion, was that Ex. B-12 does not support the conclusion in any manner. In other words, it was sought to be made out that the conclusion is arrived at on the basis of no evidence. We do not think that the argument is valid. Ex. B-12 was admittedly a valid document. Its authenticity was not doubted even before us. It is true that it was prepared in 1935, and we are concerned in the case in finding out whether the river was tidal or navigable at the time of the grant. Even then it cannot be doubted that, Ex. B-12 was prepared on the basis of investigation carried out during a period which was really relevant. That document reads :
'Inland waterways in the Madras Presidency. Page 7 -- Chapter III the Kistna Delta Canals System.
3. Krishna river below the anicut :
From Bezwada to Adavipalem lock at the tail end of the Krishna western bank canal, the river is navigable for light river steamers, launches and heavy cargo boats during the flood season from July to the end of November. Thereafter the navigation is difficult in this reach till the next arrival of floods in July. For the rest of the year, i. e., December to June, the river is navigable up to fourteen miles above Adavipalem for light crafts of 30 tons drawing 3 to 4 feet of water.
The reach from Adavipalem lock to the sea is about 16 miles. It is tidal and navigable at all seasons of the year for light steamers, launches and cargo boats. '
31. Some doubt was felt in appreciating the correct meaning of Ex. B-12. After some discussion however, it was soon realised that between 24 and 32 miles throughout the year, the river is navigable although during the flood season, that is to say from July to the end of November heavy boats can be plied whereas during the lean period light crafts of 30 tons drawing 3 to 4 feet of water can be plied, 16 miles from the sea is both tidal as well as navigable, and on all seasons of the year. At the relevant points, therefore, this document clearly makes out that it is navigable throughout the year. Particularly it mentions launches and heavy cargo boats in one season and light crafts of 30 tons drawing 3 to 4 feet of water during the lean season. What is therefore plain is that at the relevant points, the river is not only navigable but it is so throughout the year. It is also plain that cargo boats throughout the year can be plied.
32. We do not find any attempt made before the tribunal to pin-point the issue on the question whether firstly it is a requirement of navigability that the navigation should be for commercial purposes. The stress was laid more on navigability throughout the year. Before us, however, both these points were sought to be made out. Whether the navigability was used for commercial purposes or not was not specifically raised before the tribunal and that is why we do not find any discussion on that point. It cannot be doubted that it is a pure question of fact and cannot be allowed for the first time to be raised in the Writ Petition. Even otherwise as pointed out Ex. B-12 speaks of navigability for the purpose of commerce also. It is also in the evidence to which reference has been made by the tribunals that the navigability is used both for the purpose of ferrying as well as inspection and for the purpose of commerce. We are therefore, satisfied that the tribunal was right in reaching the conclusion that at the relevant point, the river Krishna was navigable throughout the year and the navigability also included for purposes of commerce.
33. We do not consider any portion of Newill's report or the report of Walsh or the Imperial Gazetteer of India ( Krishna District ) in any manner helps in contradicting the conclusion reached by the tribunal. The acceptance of the report by the Government would not, in our opinion, mean that at the points in question the river is not navigable or that the Government admitted in any manner the specific claim of the petitioner now under consideration. Nor that the survey of 1816 nor the Newill's report can be the basis of any claim. Likewise the point that the navigation should in fact exist does not appear to have been specifically raised before the Tribunal. In any case, there is nothing to show that although the river was navigable there was in fact no navigation at that point of time.
34. Whether the evidence on record was sufficient or not is not the point with which we are concerned, nor have we jurisdiction to reappreciate the evidence. What all is required in a proceeding under Art. 226 is to find out whether there was any material on the basis of which a reasonable man can come to the conclusion which it has reached. We are satisfied that there is enough satisfactory material for any reasonable man to reach that conclusion.
35. Exhibits B-8 and B-10 referred to by the tribunal are also relevant in that behalf. In these circumstances, it cannot be said that there was no evidence whatsoever on the basis of which the tribunal could reach the conclusion to which it has reached. We do not therefore experience any difficulty in rejecting the first contention that the tribunal has erred in reaching the conclusion that the river at the relevant points was navigable and therefore the Government had become the owner.
36. What follows from the abovesaid finding is that since the river-bed belonged to the Government and since it has not been specifically granted, the petitioner cannot claim these lanka lands on the basis of express or implied grants. It is difficult to agree in these circumstances with the contention that proprietary right was intended to be conveyed under the Sanad in respect of the bed of the river adjoining the villages granted to the petitioner.
37. The contention then was that the petitioner has perfected his right by adverse possession on all these lanka lands against the Government. It is true that this contention was raised before the Tribunal and the tribunal has dealt with it at page 55 of its judgment. The tribunal reached the conclusion that the petitioner cannot be said to have completed ( title ) because there is no evidence to prove continuous adverse possession. The lanka lands were subjected to fluctuations by the course of the river. The identity of the particular plot of land was lost. Since there is no evidence in reference to each item of continuity of adverse possession in regard to specific lands submerged or re-formed, adverse possession cannot be said to have created a title in the petitioner.
38. It is however seen from the grounds of attack that the petitioner has not claimed in the Writ Petitions that he has completed the title over these lands by remaining in adverse possession for over 60 years as against the Government. On the other hand, in para 8 of the Writ Petition No. 2748 of 1968 what is contained is that ' the question of prescriptive title by adverse possession for over 60 years does not arise in view of the fact that the Government itself recognised the tittle of the landholder as is clear from the report and the plan of Mr. Newill.'
39. The learned Advocate for the petitioner was not in a position to show us to where the contention has been raised in the writ petition. We were therefore not inclined to permit the advocate to deal with this question. In deference, however to the argument advanced we will express our opinion on that question also.
40. In the absence of an express grant, evidence of acts of ownership by the claimant may be regarded as acts of possession taken into account along with other acts and circumstances in determining whether the claimant and his predecessors-in-title to the abutting lands have been in prescriptive proprietary possession of the lanka lands. It is however necessary to put forward a very strong case of prescription to induce the Court to think that the title has thus been completed. It is not in doubt that at the relevant time it was 60 years' adverse possession that was required to finalise such a title.
41. Now the law in regard to adverse possession of lands which are liable to be submerged is not in doubt. A person who has a title to such land does not lose it by reason of the fact that it becomes submerged and thus becomes incapable of use and enjoyment. What most follow is that where land which was submerged is reformed and can be identified as part of the ownership, the owner would be entitled to it.
42. In Felix Lopez v. Muddun Mohun Thakoor, ( 13 Moore's Ind App 467 at pp. 472 and 473 ) their Lordships of the Privy Council referred to certain passages from Hale's Jure Maris, pages 15 and 17. It is unnecessary to reproduce them in order to apply the doctrine of Lope's case it is necessary that the person claiming the reformed land should have been before submersion entitled to it and the onus will be on him to show that he had a subsisting title to the property on the date of submersion. It is equally plain that where a person acquires a title by adverse possession to land reformed after submersion and thereafter the land is again submerged and again reformed, the title to it will be that of the person who had acquired title by adverse possession and not of the original owner. What follows therefore is that before a land is submerged, the title to it by adverse possession must have been completed.
43. It cannot be in doubt that not only will the title continue in the owner during the period of submersion, but the provision in law will be considered to be in the true owner during such period. That would be so whether the true owner was or was not in possession before the date of submergence, provided he had a subsisting title to the land on that date. If he was in possession on that date, his possession would not terminate by reason of submergence, but will be deemed to continue during the period of submersion. If however he was not in possession on that date but had a subsisting title to the land, the possession of any person who was occupying the land at that time wrongfully, would of course terminate and the true owner would be deemed to be constructively in possession. The reason assigned for such a proposition always is that constructive possession cannot impliedly vest in a wrong doer or a trespasser, nor will such possession enable a wrong doer to acquire a title by adverse possession as in order to acquire a title by adverse possession actual possession on the part of the wrong doer or trespasser is necessary during the whole period of 60 years.
44. The principle that constructive possession is in the true owner during the period of submergence of the land is based really on the fact that the land is incapable of actual enjoyment during the period of submergence and that the adverse possession of the wrong doer or the trespasser which ought to be actual is thereby terminated.
45. It is in the background of this position of law that one has to examine the present case. What was contended before us that although the lands used to be submerged as and when there was flood, the petitioner continued to be in possession after these lanka lands were again brought into existence by recession of the flood. What this argument necessarily implies is that the petitioner was not in continuous possession of every bit of lanka land for 60 years. Whenever these lanka lands used to be submerged, it was clear that the possession of the petitioner would be deemed to have voluntarily abandoned or relinquished. On all such occasions the possession automatically revests in the owner i.e., Government. No particular Act of the owner is necessary to bring about such revesting. Every submergence of every bit of land would amount to abandonment or relinquishment and the limitation ceases to run against the true owner i.e., Government of the bed of river out of which these lanka lands are formed. There is absolutely no evidence in reference to each item which would convincingly show that in each item continuous and open possession of the petitioner was for over 60 years which alone would vest title in him for that land. When once it is conceded that these lanka lands were liable to be submerged and were in fact submerged, unless clear-cut and satisfactory evidence is produced to show the continuous possession over an identified item for over 60 years the petitioner cannot be said to have perfected his title by adverse possession.
46. By merely showing that in 1816 there was first survey or that in 1849 there has been another survey, or that in 1853 Newill submitted his report wherein it was pointed out that the lanka lands were part of the adjoining villages and belonged to the Zamindar, or even the fact that the Government accepted the report of Newill in 1854, or the fact that the Government carried on conservation of rivers according to the river conservancy, 1884 and handed over the lanka lands back to the petitioner it would not make out his case of adverse possession. The essential requirements of perfection of title by adverse possession, as pointed out above will have to be clearly made out. The petitioner neither was in a position before the tribunal to point that out nor was in a position before us even to point out that position in reference to each and every item. Thus, apart from the identity of the land submerged and again reformed continuity in possession for over 60 years has not been established. Wherever the lanka lands were submerged the possession would be deemed to have again revested in the Crown because we have already held that the river-bed belonged to the Crown and before any submergence the petitioner had not perfected his title by adverse possession. We are therefore satisfied that the tribunal in conclusion was right in holding that the petitioner has failed to prove his title to any of these lanka lands by adverse possession. The next contention based almost on the same material was that the Government was estopped from contending that the petitioner is not the owner of the lanka lands in dispute. The argument was that right from the day when the first survey was carried on in 1816 and although Newill in his report of 1853 had pointed out that the lanka lands were part of the petitioner's estate, even then the Government did not do anything. In fact the Government handed over the lands, which it had obtained for conservancy purposes back to the petitioner. It was on this basis contended that the government is now estopped from disputing the title of the petitioner. In other words, it was contended that the Government by its conduct admitted the title of the petitioner and therefore is estopped from contending otherwise.
47. In Maddannappa v. Chandramma, : 3SCR283 it was held that the Law of estopped by representation is confined to the provisions of Section 115 of the Evidence Act and apart from the provisions of this Section there is nothing like what is called ' equitable estoppel ' evolved by the English Judges and the provision of Section 115 are in a sense a rule of evidence and they are founded upon the well-known doctrine laid down in Pickard v. Sears, ( 1837 ) 6 Ad and El 469. Their Lordships further held :
'The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, where one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel, if that person knew the true state of facts and must consequently not have been misled by the misrepresentation.
................the person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that even the general principles of estoppel cannot be invoked by him. '
What becomes thus plain is that it is Section 115 of the evidence act that one has to look to in order to find out whether estoppel operates against the Government in the circumstances of this case. According to that provision a person must have made a declaration or committed an act or omitted to do certain thing. These things amount to representation. Thus, representation may be made by a declaration or by an act or even by omission. Such a representation must have intentionally caused another person to believe a thing to be true. It is also evident that the person to whom such representation was made not only must have believed a thing to be true, but must have acted upon that belief. It is only when all these things exist that the person making the representation shall not be allowed in any proceeding between himself and such person to deny the truth of such representation.
48. Let us see in the background of this provision of law what is the representation which the Government has made to the petitioner, which he believed to be true and acted upon it which now operates as estoppel against the Government.
49. If the assertion is that the Government has been negligent in not setting up its claim, then it is obvious that mere negligence to take action against the petitioner would not make the principle of estoppel applicable. There must be something more than mere negligence which would amount to representation, within the meaning of the said section. If on the other hand some positive acts are asserted against the Government which amount representation, then they must specifically pleaded and proved. No such thing is asserted except what has been stated above. We do not consider that those acts amount to representation to the petitioner by the Government. The conduct of the Government in not raising any objection or accepting the report of Newill or even handing over the lands after conservancy operations to the petitioner cannot amount, in our opinion to representation to the petitioner that the Government accepts him as the owner.
50. The petitioner in any case knew the position of law in regard to river beds very well. He knew perfectly well that the river bed has not been granted to him expressly by the Sanad. Nor has he reason to doubt that the river bed has not been impliedly granted to him. In these circumstances merely because of the Newill's report or of the handing over of the lands back to the petitioner after the conservancy operations, it would not amount to representation and if it so amounts what is it all about ?
51. More important than that is that if by representation belief was created in the mind of the petitioner that he is the owner of the lanka lands, then what are the acts or what is the conduct of the petitioner showing that he acted upon such belief and altered his position in reference to these lands. Except some vague evidence of leasing out or carrying out some small insignificant operations in regard to certain lanka lands, there is absolutely no evidence to show either that the petitioner put faith in what was represented to him by the Government or that he actually acted upon it altering his position because of such acting. The principles of Sec. 115 of the Evidence Act therefore, in our opinion, are not attracted. We are satisfied that there was no representation of any kind by the Government as could give rise to an estoppel.
52. It was contended on behalf of the Government that the question of estoppel was not raised before the tribunal and that therefore the petitioner could not have raised that point for the first time in the Writ Petitions.
53. It was next contended that the petitioner's advocate had written a letter to the advocate of the Government asking him to produce certain documents but they were not produced, and as they are important documents, adverse inference ought to have been drawn by the tribunal against the Government. This contention was rejected by the tribunal on the ground that it may be that some letters may have been sent by the petitioner to the Government Pleader but thereafter no steps were taken before the Assistant Settlement Officer at any stage to ask the Government to produce those documents. No application was filed nor even a reference was made to the letters written by the petitioner to the Government pleader. In these circumstances the tribunal thought that no adverse, inference can be drawn against the Government on the ground that it failed to produce certain documents.
54. It is true that in State of Punjab v. Modern Cultivators, : 8SCR273 , which was relied upon by the petitioner, it is held that in an action for negligence, the defendant deliberately failed to produce, in spite an order of the Court, reports and documents kept by the defendant in its canal office which would have thrown light on the question of negligence of the defendant. It was also held that in the circumstances an adverse inference that the defendant was negligent in the management of the canal arose from the non-production of the documents.
55. Our attention was drawn to Biltu Ram v. Rainandan Prasad, ( C. A. No. 941 of 1965 published at p. 205 = 1968 SC Notes 290 where it is observed :
'The decision in Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 = ( AIR 1915 PC 96 ) does not support the proposition that unless he is called upon expressly to make an affidavit of documents and inspection and production of document is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with Section 114(g) of the Act and also an impressive body of authority. '
56. Even if it is assumed even without being called upon to produce, it would have been better for the Government to produce those documents, we fail to see how that would have altered the situation in the present case. Exs. B-8, B-9, B-10 and B-12 were the documents on which the tribunal relied on in order to arrive at the conclusion. The authenticity of these documents was not in doubt. When those documents are relied upon, we fail to see how the documents, which were asked to be produced even if an adverse inference in regard to them is drawn, will in any manner affect the conclusion based upon the above said documents. Our attention was drawn to some extracts in the depositions of P. W. 1 and R. W. 4 to point out the necessity of production of such documents. They relate to the measurements taken in the previous years. In spite of their non-production we are satisfied that the tribunal was right in placing reliance upon the above said Exhibits and reaching the conclusion. It cannot in these circumstances be said that even in adverse inference had been drawn, the entire documentary evidence referred to above or the oral evidence produced by the parties could have been rejected on that account.
57. We however feel that it was also the duty of the petitioner to bring to the notice of the Assistant Settlement Officer the necessity of producing the documents. They were all Government documents and nothing prevented the petitioner from filing an application for their production. He did not do anything of that sort. It was open to the Government to choose as to what evidence it should produce and if the petitioner wanted certain documents in possession of the Government to be produced, he should have taken some action in that behalf. We do not therefore experience any difficulty in rejecting this contention.
58. What follows from what we have so far decided is that the lands in question were not expressly granted by Sanad to the petitioner, nor they would be deemed to have been impliedly granted. We also hold that the river-bed because of the navigability of the river Krishna at the relevant points, vested in the Government. The petitioner had not acquired title by adverse possession nor the Government is estopped from setting up its own title or disputing the title of the petitioner. These findings in our opinion should be enough to dispose of the petitions.
59. It was however contended that the test of private land as defined in Section 3 (10) of the Estates Land Act has not been properly applied to individual cases and therefore we should allow certain items on that basis. We do not however think that the tribunal has misunderstood the position of law in that behalf. Whatever may be the position earlier, the Supreme Court has now clearly established what the test is in regard to private land. Vide Chidambaram v. Santanaramaswami, : 2SCR754 it was observed by their Lordships :
'Under Section 3 (10) of the Act, private land comprises of two categories, private land technically so-called and lands deemed to be private lands. In regard to private lands technically so-called it must be the domain or home-farm land of the landholder as understood in law. The mere fact that particular lands are described in popular parlance as pannai, Kumbattam, sir, khas, is not decisive of the question unless the lands so-called partake of the characteristics of domain or home-farm lands. In our opinion the correct test to ascertain whether a land is domain or home-farm is that accepted by the judicial committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, ILR 42 Mad 400 = ( AIR 1918 PC 182 ) that is, whether it is land which a Zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The legislature did not use the words ' domain or home-farm land ' without attaching to them a meaning, and it is reasonable to suppose that the legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause (b) (i) of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or ' home-farm ' that is to say, lands appurtenant to the landholder's residence and kept for his enjoyment and use. The home-farm is land which the landlord cultivates himself, as distinct from land, which he lets out to tenants to be farmed. The first clause is, therefore, meant to include and signify those lands which are in the ordinary sense of the word home-farm lands. The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as home-farm lands in the ordinary usage of the term ; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read as a whole indicates clearly that the ordinary test for ' private land ' is the test of retention by the landholder for his personal use and cultivation by him under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the landholder without losing their distinctive character ; but it is not the intention or the Scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams in the lands and has been letting them out on short term leases. There must, in our opinion, be something in the evidence either by way of proof of direct cultivation or by clear indication of an intent to regard these lands as retained for the personal use of the land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the act cannot acquire occupancy rights. '
Applying this principle to various items which were brought to our notice we are satisfied that the lands cannot be considered to be private lands of the petitioner. In no case the petitioner asserts that he had personally cultivated the lands at any time. In no case again it has been successfully made out that the leases were given on short terms to various persons. In no case again any specific facts have been brought out which indicate the intention of the petitioner to resume the lands for personal cultivation. There are no facts which would give a clear indication of an intent to regard al these lands as having been retained for personal use of the landholder. There is no proof whatsoever, which can be said to be satisfactory, to place all these or some of them in the special category of private lands in which the tenant under the act cannot acquire occupancy rights. Some act of cleansing the lands or growing some grass cannot be said to be such acts as would indicate an intention to cultivate personally the lands sometime or the other.
60. In fact, in regard to certain lands the tribunal has held that those lands were converted as ryoti lands. Reliance was mainly placed on Ex. D-1 to reach the conclusion that those lands were converted as ryoti lands. Ex. D-1 is a letter written by Huzur Head clerk of the petitioner on 25-10-1949 after the estate was taken over in September, 1949. The letter reads as under :--
'Subject :- Lankas -- Leases -- Certain information -- Called for -- Enclousers
Reference :-- Your letter No. Rc. A-13/49, D/- 20-10-1949.
The complaint to the Government by some of the villagers of Potharlanka regarding the Nanal lanka north of the village of Potharlanka is not at all true. The suit referred to in your above communication is O. S. No. 388/47 on the file of the District Munsif, Masulipatnam. True copies of the plaint and the written statement filed by the Contesting defendants are herewith enclosed as required by you in your above communication. The said suit has been decreed and the lanka has been in our possession till now. The leasehold right of the cultivable portion of the lanka and the right to cut the nanal also may be leased out to the highest bidder for this fasli.
The leases of Ravi Lanka, Isukalanka, Goguladibba, Venkayyadibba and Tummaladibba referred to in your above communication have been granted by us for the purpose of cultivation. It might also be mentioned here in this connection that the said lankas have been delivered possession of to the respective ryots after taking premiums from them at varying rates. Hence the rent stipulated is Rs. 6 and Rs. 5 as shown in the Fysalayiti registers taken possession of by you along with the other records handed over to you.
Sitapeda and Ravi Lanka have been in our exclusive possession from time immemorial and portions thereof have been under our cultivation from a very long time. On the Notified date all the lands including lankas were handed over to the Government excepting those to which we were entitled to claim a patta under the provisions of Act XXVI of 1948.
It has been customary to cut and gather the trees from these lankas for domestic consumption and for agricultural implements required by us in the Fort. In accordance with this usual custom and practice some trees were felled for the purpose of using them as fuel in the fort in Ravi Lanka. The wood was cut before the notified date and it could not be brought into the fort owing to the recent floods. As we are claiming a patta for Sitapeda and in pursuance of the above said custom our servants are felling some trees which were on the margin and liable to be washed away for the purposes of domestic consumption as fuel in the fort.
T. V. Gopalrao,
Huzur Headclerk for Zamindar. '
61. Even a casual reading of this letter would indicate that the landholder granted the leases whithout specifying any period to various persons by taking premium. We find considerable force in the contention of the Government Pleader that these leases were granted permanently on obtaining the premium for them. When the landholder himself has been treating these lands as lands granted to the ryots on long leases and on getting premium we fail to see how it can be contended that they were not converted as ryoti lands.
62. Section 25 of the Estates Land Act relates to rent payable on admission to possession of ryoti lands after the commencement of the Act. Para 2 of that section which is relevant reads:
'Nothing in this section precludes the landholder from receiving any premium when the ryot is admitted to possession; but a ryot so admitted shall under no circumstances become liable to make any payment to the landholder after his admission by way of premium or other consideration for such admission nor shall any holding of the ryot be subjected to any charge in respect of any such premium or consideration or part thereof.'
This section brings out in bold relief that the landholder can receive the premium and admit the ryot to possession. It also clearly brings out that ryot thereafter shall be under no obligation to make any payment to the landholder by way of premium or other consideration for such admission. Nor any holding of the ryot shall be subjected to any charge in respect of any such premium or consideration.
63. Section 6 confers occupancy right in ryoti land.
64. What is plain therefore is that while Section 6 of the Estates Land Act confers occupancy right in ryoti lands, Section 25 confers immunity on the ryots in regard to rent or premium. Section 19 of the Act relates to the relations of the ryots and landholders with the tenants. According to that section except otherwise specially provided in the Act, the relations between a landholder and a tenant of his private land are not regulated by the provisions of the Act. In order to however attract the provisions of this Act it must first be established that the land is a private land and the tenant has been inducted by the landholder in such land. Without satisfactorily proving that no case can be taken out of the purview of the act.
65. Section 181 permits the landholder to convert his private land into ryoti land and confer occupancy right in the land so converted. It is only under Section 181 that certain lands even if they are assumed to be private lands were converted by the landholder into ryoti lands by conferring occupancy rights upon those tenants. Ex. D-1 in our view, is a clear piece of admission in that behalf made by a representative of the petitioner. It was not doubted before us that the facts mentioned in the letter are true. Nor it was contended that the person who made that admission was not authorised to so make on behalf of the petitioner. What was however, contended was that Es. D - 1 does not constitute conversion within the meaning of Section 181 of the Estates Land Act. We are afraid we cannot accept that contention. In our view the tribunal was right in holding on the basis of Es. D-1 that the tenants mentioned in the said letter have got occupancy rights relating to the lands given to them on long leases on the basis of premium. The circumstances of the case clearly support that conclusion.
66. Our attention was drawn to several decisions which the test of private land was laid down. We have preferred however to refer only to the Supreme Court decision, because we are clearly bound by it. Without meaning any disrespect to the learned advocates for the parties we do not propose to consider them, as nothing turns upon those decisions after the Supreme Court has given the decision.
67. We should not omit to consider a small point argued before us. The contention was that the direction given in regard to certain items for delimiting the area to an outside agency was not proper. After going through the relevant paragraphs what we feel is that the delimitation would be done only under the supervision of the Assistant Settlement Officer. That is the way to demarcate the lands for which patta was granted. There does not seem to be any other method. We do not therefore find any defect in such a direction because ultimately it is the tribunal which will have a control over it.
68. Fir the reasons which we have given we do not find any merit in these petitions. We would therefore dismiss the writ petitions with costs. Advocate's fee Rs. 100/- in each case.
69. Petitions dismissed.