1. This appeal involves a question of considerable interest, with regard to the legal consequences of a right to property whichincludes the foreshore of the sea as one of its boundaries. The facts are as follows:
2. The plaintiffs instituted a suit in the court of the District Munsif of Ramanathapuram for a declaration of title, possession and future mesne profits. The defendants appear to be fishermen who own properties to the east and west of the particular item, which is the subject-matter of the present dispute (item 3). This item 3 has, according to the title advanced by the plaintiffs, in the trial court, the seashore as its southern boundary. As far as this item was concerned, the defendants allege that they had been using the area which is the subject of dispute for drying fish and for keeping their, nets and the boats used for fishing. They also allege that they had planted some coconut trees, in a small portion of this area. On this aspect, the trial court framed three issues, first two of which related to the title of the plaintiffs and possession within the statutory period, and the third to adverse possession pleaded by the defendants. There was also the fourth issue on the same aspect, namely, whether the encroachment in item 3 is true.
3. The trial court dealt with the facts and evidence elaborately. A Commissioner was also appointed in the suit, and his plan and report were adduced in evidence. Finally, the trial court pointed out that the plaintiffs could not sustain their claim of ownership of the plot south of the fence erected by them, which is practically the foreshore of the sea. Further, the learned District Munsif also emphasised the prior statements of the plaintiff, (D. W. 1) to the effect that item 3 (suit property) was really
'ten bagams away from the seashore'. Hence, the suit was dismissed with regard to this extent of controversy.
4. The matter went up in appeal to the learned Subordinate Judge of Ramanathapuram at Madurai. The learned Subordinate Judge held that the defendants (including the appellant, first defendant) had not established title to the extent in dispute, by adverse possession for over the statutory period. The evidence shows that the cocoanut trees had been planted by the defendants only within recent years. Such isolated acts of user, which were also interrupted and not continuous, as drying fish and exposing fishing nets to the sun etc, could not constitute the kind of continuous possession with the necessary animus, which is adverse possession in law.
5. As far as that title of the plaintiffs was concerned, they relied on certain documents of title, Ex. A.4 of the year 1941 and Exs. A.5 to A.8. One difficulty here is that there is a marked variation in the extent of the suit property, as between the earlier title deed and the subsequent title deed. But the later title deed upon which the plaintiff relied, would normally take in the extent south of the fence, which is the suit property now in dispute. That is not disputed by the learned counsel for the appellant (Sri M. Natesan), but what he urges is that we cannot forget that the earlier title deed related to a more restricted extent, which prima facie is not inclusive of the suit property. Also, according to him, where the southern boundary has been indicated in as the foreshore of the sea, the plaintiffs cannot claim title in the actual foreshore.At any rate, the plaintiffs cannot obtain possession of this part of the property from the defendants, disentitling the defendants to their customary user of drying fish, drying their nets and keeping their boats in this plot etc.
6. The problem is somewhat complicated, because of the indisputable fact that the earlier sale deed and the subsequent sale deed differ as to the total area of the property. But, even assuming that the later sale deed is the basis of the title of the plaintiffs, the question remains to be considered whether the plaintiffs could obtain possession of the foreshore area, depriving the defendants altogether of their customary rights to dry fish at the spot, and of keeping their fishing nets and boats etc. 1 may take it as practically concluded by the findings of the first appellate court, which on issues of fact would be ordinarily binding on this court, that defendants failed to establish their title through adverse possession. As the learned Subordinate Judge rightly emphasised, such isolated acts of user as drying fish, or fishing nets etc., cannot constitute adverse possession in law. I may also take it that but for the fact that, this foreshore adjoins the sea, the property is also within the area which the plaintiffs could claim on the basis of the later sale deed. Even so, the question remains whether the nature of the property does not require some modification of the decree granted in this case by the appellate court.
7. A very similar question arose for consideration, as between the grantor and the grantee, in Mellor v. Walmsley, 1905 2 Ch 164. Delivering the judgment of the court, Vaughan Williams, L. J. (sic) (Romer, L. J., ?) stated, quoting from Lord Chief Justice Hale's treatise, De Jure Maris
'The shore is that ground that is between the ordinary high water and low water mark. This doth prima facie and of common right belong to the King, both in the shore of the sea, and the shore of the arms of the sea.'
It was held by the court of appeal that the grantee was entitled to free and unrestricted access to the sea from every part of his western frontage, over every part of the strip of land lying between that frontage and the sea. In the present case, as far as I can judge from the plan and report filed by the Commissioner, the area in dispute is definitely part of the seashore, immediately adjacent to the actual ocean. It is not clear whether this strip of land is really between the high water mark and the low water mark. There is no evidence on that point. But it is at least doubtful if the plaintiffs would really claim the shore proper, as defined in Mellor v. Walmesley, 1905 2 Ch 164 cited above, as their property, even if there is a document of title in support. As was pointed out in one context in that very decision, the sea itself is liable both to flow and cover the land, and also to ebb or recede and make the land available for occupation by man.
8. I do not think it is necessary to substantially alter the decree of the lower court as it stands, for the simple reason that the facts are lacking on the vital aspect whether suit property is within the limits of the legally defined foreshore. But I must add that, if it is within those limits, the plaintiffs may not be entitled to claim that part of the property as against the State, which is not a party to the present action.
9. The decree, as passed by the first appellatecourt may, therefore, stand. But it will be subjectto the modification or refinement that the southernmost area now in controversy cannot be fenced in,or otherwise enclosed, by the plaintiffs, and thatthe defendants are at liberty to exercise their customary rights therein, in regard to drying fish, keepingboats and fishing nets without let or hindrance.Those rights must be regarded as a kind of easement, limiting the title of the plaintiffs to this partof the suit property. Possession of this propertycan hence be only subject to these conditions, and,in that sense, has to be more symbolical than actual.With these modifications, the decree of the firstappellate court is confirmed, and the second appealdismissed. The parties will bear their own costshere. No leave.