1. In this case the plaintiffs prayed for a declaration that they are the owners of the tank described in the plaint; and for recovery of its possession, and for damages against the Secretary of State for India because his agent the Collector had leased out the aloe flowers on the banks of the tank and thus invaded their rights. The Courts below have found against the plaintiffs' title, and they appeal. Their claim is founded on two grounds, viz., (1) that as sole Mirasidars of the village they have by immemorial custom an exclusive right to all the Poramboke lands of the village; and (2) that they have been in exclusive possession and enjoyment of the tank for over the statutory period adversely to the Government and they have thus acquired a title to it by prescription. We think the title of the plaintiffs by adverse possession is established by the evidence. No doubt their enjoyment of the aloe flowers and of the fishery in the tank for the past 35 or 40 years if it stood alone would not indicate ownership, because, in fact, Government every where and especially in mirasi villages, allows the villagers to take fuel and grass, and wild fruits and flowers from the Poramboke and other waste lands of the villages and allows them in many cases to enjoy also the- fish of small tanks. The non-interference of Government with such enjoyment does not imply a denial of the ownership of Government or an abandonment by Government of its ownership--The Secretary of State for India v. M. Krishnayya I.L.R. (1905) M. 257. But in the present case we have much more. It is proved by the evidence that the predecessor in interest of the plaintiffs expended large sums in clearing silt out of the tank and constructed masonry sluices in it for regulating the inflow and outflow of its water. These are acts of a kind which raise a presumption of ownership in the person doing them and are sufficient to shift to the defendant the burden of explaining away the acts and the ordinary inferences arising from such acts, and showing a title in the Government. There is not, however, a shred of evidence, oral or documentary, adduced by Government in this case. There is merely the allegation in the written statement that the tank is entered in the revenue and settlement registers as Government Poramboke. Such entry is, of course, insufficient to prove that the tank is in fact the property of Government. The Collector, examined on interrogatories, admits that the Government has never at any time executed any lepairs to the tank. He does not say that they have ever exercised any act of ownership in regard to it nor does he attempt to explain how it happens that the plaintiffs, if not owners of the tank, have cleared out its silt and have constructed masonry sluices in it. He does not say that these acts were done with the permission of the Revenue authorities, or even that such acts are in that District often allowed by Government at the request of the villagers as the upkeep of the tank is to their advantage. The record gives no idea of the size or character of the tank, but the Government Pleader and Vakil for the plaintiffs state that it is a small village tank about 1 1/2 acres in extent, not used for irrigation, but used for drinking and bathing purposes. Such a tank may well be the property of the villagers in common, or of private persons.
2. We think that the evidence on the record points to the conclusion that the plaintiffs have been in possession and enjoyment of the tank adversely to Government for 30 or 40 years, and this is sufficient to shift to Government the onus of shewing that Government has been in possession at some time within 60 years prior to the suit. There is no evidence that Government was ever in possession if it. We must, therefore, hold that the plaintiffs' possession should be presumed to have continued for more than the statutory period and that they have established their title by prescription--Anangamanjari Chowdrani v. Tripurasundari Chowdram I.L.R.(1887) C. 740 Now reported in (1909) 20 M.L.J. 66 and S.A. 576 of 1906 Now reported in (1909) 20 M.L.J. 71 not yet reported. In this view it is not necessary to go into the question of the plaintiffs' alleged right as Mirasidars.
3. We declare the plaintiffs' right to the tank and its banks as against thedefendants and give them a decree for its recovery and for mesne-profits at the rate claimed, Rs. 8 per annum from 1901 until delivery of possession or 3 years from this date whichever event first occurs, with costs throughout against 1st defendant.
4. Three month's time is allowed to the 1st defendant to satisfy the decree.