1. These Appeals and Second Appeals arise out of decisions of the Forest Settlement Officer rejecting the claims made by certain wargdars in South Canara to tracts of forest land which Government proposed to reserve as Government Reserved Forest under the Forest Act of 1882.
2. The important question of principle that is raised is with regard to the right of Government in the forest and other waste lands of the District. Is it similar to that which is now well established in the other Districts of the Presidency, omitting Malabar; that is to say, is there a general presumption that forest and waste land not exclusively occupied by any person or body of persons, is the property of Government? Or, is the presumption similar to that which is now established in Malabar, viz., that such lands, like all other lands, are presumed to belong to some private person or family Or, is the true position that there is no presumption at all either one way or the other, and that the onus of establishing the claim lies in each case on the Government or the person who makes the claim;
3. The British Government took over the administration of the country in 1799 after the defeat and death of Tippu Sultan at Seringapatam, and Munro was sent to report on its condition and to administer it in 1800. In the course of that year he made three most valuable reports which are the chief source of the information, and often of the opinions, of succeeding administrators. It is certain that Munro and some of the early British administrators who took their opinions from him refer to 'all land' in Canara as being 'private land' held on ancient and indefeasible titles. But it is equally certain that they were not thinking of the great tracts of immemorial forest on the Western Ghats and elsewhere in the District and there is not a single expression in their reports which specially refers to these tracts which form so large a portion and so important a feature of the District as a whole. Writing in 1894 Mr. Sturrock says: 'South Canara is essentially a Forest District. The slopes of the Western Ghats from north to south are clothed with dense forests of magnificent timber and the forest growth, stimulated by the heavy rainfall, approaches to within a few miles of the coast' in two specified places, but 'generally the heavy forest begins from 20 to 30 miles from the coast * * Even on the plains, however, a large portion, of the Uppinangadi Taluq is covered with heavy forest, and jungle varying from moderate forest to mere scrub is to be found everywhere throughout an exceptionally largo area of waste land' (Manual of the South Canara District, p. 15).
4. Munro and the early administrators were specially concerned with the land revenue assessment of the District, and their reports in regard to it must be read as referring to the occupied land which yielded revenue, not to the great tracts of immemorial forests which yielded none. We know that ' Tippu introduced rules of draconic severity for the conservancy of sandalwood for his revenue and teak for his navy' (Sturrock's Manual of South Canara District, p. 16). The Madras Government almost immediately after the conquest of the country was complete, that is to say, on the 25th April 1807, issued a proclamation announcing that the Court of Directors had resolved to assume the sovereignty of the forests in Canara and that an officer (Captain Johnston) had been appointed to see that no injury was done to them and that all persons were 'prohibited from cutting or destroying trees in the teak forests.... or from taking away the young plants.'
5. As regards this proclamation the Bombay High Court justly observes ' The resolution of the Court of Directors could not, of course, give it a sovereignty which it did not possess already; it was in virtue of a sovereignty already existing that the proclamation was made. What it obviously meant was that the Court being sovereign by delegation and thus vested with the eminent domain, intended in future to exercise it for the preservation of forests over which public rights subsisted. It has been urged for the plaintiff that the prohibition extends only to the cutting of teak; but though this was held chiefly in view, the prohibition must be taken as general, since injury' might be done by destroying timber of other kinds I.L.R. 3 B. 727.'
6. In his minute of the 26th November 1822 Munro refers at length to this proclamation and the action of the Madras and Bombay Governments subsequent thereto. He protests vehemently against the interference of the Conservator of Forests with the rights of the land-holders to the trees growing on their private lands, but throughout the minute he also refers to other forests as 'undoubtedly public property' and explains that 'the line between public and private forests had not been ascertained' and urges that a survey should be made 'in order to protect the the property of the public and of individuals in the forests.' The extent of the forests which ho referred to as public was, evidently, very great, for he protests against its conservancy as checking the extension of cultivation to a dangerous extent. He says ' the complete preservation of the public forests would of itself be a serious injury to the country. If no part of a hill where teak or poor is now growing, is to be cultivated, it would stop the progress of cultivation over all hills belonging to Government. Arbuthnot's life and Minutes of Munro, p. 187, Vol, I,' It is clear that Munro was very far from thinking that all forests in Canara were private property. His protest evidently was effectual, for in 1823 Mr. Harris issued a proclamation in pursuance of the orders of Government that the prohibition extended only to the Government jungles not to timber trees on private lands I.L.R. 3 B. 728, and he drew up lists of the Government Forests as they then stood. This was followed by Blair's proclamation in 1843 (Exhibit D in A.S. No. 26), and by the proclamation of the Government of Madras of the 8th November 1847 (Exhibit F, ibid.) in which the Collector is instructed ' to assert the rights of Government to all forest lands to which a title cannot be clearly established by private individuals' and by Maltby's proclamation in 1854 (Exhibit H, ibid) and by others subsequently, all maintaining the rights of Government in the forests. On the 15th February 1864, the Board of Revenue wrote that the right of Government in the Forests ' was asserted by the Bednore Government as far back as 1660 when theshist or original Government demand on the land is said to have been settled and forest lands were excluded from the area liable to land tax as the property of the State. The Board are satisfied that no claim to Forest land as a portion of warg needs to be admitted unless unquestionable evidence is forthcoming of a State grant of the land or locality' and this view was fully accepted by the Madras Government in G. 0., dated 20th May 1865, No. 359 (Exhibit 0). In 1884 when Mr. Sturrock made an exhaustive enquiry into the actual state of the Government forests at that time, he found that of the forests found to be Government forest by Mr. Harris in 1823 only 67 could then be identified as the original lists had been burned by the Coorgs in 1837, but these 67 forests contained an area of no lens than 250 square miles. He also found that there were no less than 394 Government forests which were ' remote from cultivation' and to which ' no private claims of any kind had been made good.' Looking to these considerations we may safely say that in the case of the large tracts of immemorial forest on the ghats and elsewhere in the District there is a presumption of fact that they are Government forests, though, of course, such presumption may be rebutted by proof of private ownership in regard to any particular part of the forest.
7. On the other hand, many of the early reports indicate that patches of woodland and waste were not infrequently regarded as included with the cultivated land in the holdings of the wargdars or land-holders, It cannot, therefore, be held that such patches of woodland or waste when interspersed with, or adjacent to, the cultivation of a warg, may not be a part of the warg. In a warm, moist climate like that of Canara, land which has once been forest and has been cleared for cultivation very rapidly reverts to forest if it is left uncultivated. Such forest is for many years easily distinguishable from primeval forest and is known as secondary growth. In the case of secondary growth the presumption will usually be that it belongs to some private owner, but this again may be rebutted, as for instance, by showing that it is part of a warg that was abandoned or forfeited or escheated to Government or by showing that it was not part of a warg but was cultivated as 'Kumri' 'Kumri' is cultivation of land outside a warg by felling and burning a patch of the forest, the ashes acting as manure. After one or two crops are raised the plot is abandoned and a fresh patch treated in the same way. The wasteful and injurious character of this kind of cultivation was recognised before the middle of the last century and by the Government proclamation of 1847 already referred to, the Collector was authorized to prohibit it wherever it was found desirable to do so. In 1860 after an exhaustive enquiry it was decided by Government (G. 0., dated 23rd May I860 R. D.) that the entry of ' Kumri shist (i. e., assessment for Kumri cultivation) in the patta (or account) of an estate or warg gave no validity to a claim to proprietary right over the forest in which the 'Kumri' was carried on, or even over the spots which had been actually cultivated. 'Wargdar Kumri' was, therefore, abolished in 1860 and the assessment on account of it was remitted throughout the District, except in a few places where special permission was given (Sturrock's Manual, p. 123). The whole question as to whether Kumri cultivation could give a proprietary title to land was examined exhaustively in the case of Bhaskarappa v. Collector of North Canara I.L.R. 3 B. 452 and was decided in the negative. We are not aware that the correctness of that decision has ever been judicially doubted, and though it was given inrefeference to a case which arose in the northern part of North Canara where the land tenures are in some respects different from those of the rest of Canara, yet the grounds on which it is based are of general validity and, in our opinion, the decision is applicable to South Canara also.
8. The learned Advocate-Ganeral contends that the wargs contain no land except what is now or was formerly cultivated. Mr. Sankaran Nair, on the other hand, contends that Munro's expression that ' all land' is ' private land' is to be taken literally, except in regard to some lands which have escheated to Government and to which their title can thus be referred to former private owners. We do not think that either of these extreme views is correct, or is in accordance with Munro's own views if rightly understood. With his report of the 31st May 1800 (printed in full at page 71 of Selections from the Records of the Collector of South Canara, 1879, and extracted with a statement at page 447 of Vol. 2 of the Fifth Report) Munro gives a statemet of the land rent of Canara and Soonda showing the changes it had undergono from 1660 down to 1799-1800, and explains the statement at great length. He states that the settlement of Hurryhur Roy, the Rajah of Bijanaggar, made in 1334-47 was the foundation of all subsequent assessments and that it was made on an estimate of the yield of the land, the produce being divided in certain fixed proportions between the labourer, the landlord and the Sirkar (Government). This assessment was increased by 50 per cent by the Raja of Biddenoro (Bednore) 1618-60; and this enhanced assessment, Munro says, 'has been more than a century considered as the Rekah, or standard rent of all the lands in the country cultivated and waste.' This manifestly means all the occupied lands, or at least the cultivable lands in the inhabited parts of the district as it would be absurd to assess great areas of immemorial waste, in the mountains which were uninhabited and unoccupied and not likely to be occupied within any period that could be foreseen. This rekah or standard rent of all such lands, cultivated and waste is given as Rs. 5,80,000. Then follow four large sums which have to be deducted from this gross standard rent. Munro explains : ' The deductions in the four following columns are made in order to show the amount of the standard rent of the Sarkar lands actually occupied and paying rent at the end of the Biddenore Government.' The expression ' Sarkar lands' is important as showing that Munro regarded the Government as the ultimate owner of the lands in Canara, subject of course, to the private, or saleable, interest which had grown up in them owing to the lightness and fixity of the assessment. The expression ' actually occupied and paying rent' is also important since it shows that Munro was giving an account of such land as opposed to other land which was not actually occupied and which was not paying rent. The deductions are' (3) for 'Enaums' Rs. 1,44,000' '(4) deficiencies of rekah or standard rent Rs. 1,23,000' '(5) Waste lands Rs. 58,000' '(6) Tunkahs to peony Rs. 8,000.' The total of [these four deductions is Rs. 2,34,000,This is obviously a mistake. The total deductions according to the judgment come to Rs. 3,33,000. Apparently the figures are taken roughly. The correct figures as appearing from the Fifth Report, Vol. II, p. 458, are Deductions:-Enaums 1,43,866-12-20; deficiencies of reka 1,23,194-16-78; waste 58,561-28-14; tunkahs 8,513-22-51. Total deductions 33,413-8-3 or roughly 3,34,000 ag apparently intended by their Lordshipe and this being deducted from the gross Bednore assessment of Rs. 5,80,000 leaves Rs. 2,46,000 as the shist or balance of standard rent, as Munro says, 'of the Sarkar lands actually occupied and paying rent at the end of the Bednore Government.' Munro explains these four deductions. It is unnecessary to refer to the ' Enaums' or the ' tunkahs for Peons.' But his explanation of the other two deductions is of much importance. He says : ' The waste lands in Col. 5 are all supposed to be fit for cultivation, because the whole or the greater part of them had been cultivated at different periods under the Bednore Government'; and again : ' The deficiences of Rekah or standard rent in Col. 4 are composed of uncultivated lands and reduction of rent. The first of these heads comprehends all lands overflowed by the sea, or torn up or washed away by rivers and nullahs, and ancient waste lands which had been in that state ever since the Byjanuggur Government, and which, from their situation among the hills and jungles, being deemed unlikely to be ever again cultivated, were withdrawn from the sum of the general assessment of the country.'
9. Thus the ancient waste lands which had never been cultivated for a century or more and which were never likely to be again cultivated were treated in the same way as 'lands overflowed by the sea' and were withdrawn from the category of assessed lands from the year 1660.
10. Again he writes (para 15) : ' The sums entered in Cols. 8, 44 and 72 exhibit the standard rent of the lands in cultivation under the Rani of Biddenore, Hyder and Tippoo; and had all these lands been actually cultivated, they would likewise show exactly the comparative rates of assessment of those three periods. But this was not the case, for a small portion of the land in occupancy, even under the Rani was waste. More of it was waste under Hyder, particularly in the latter years of his Government; and a far greater-share under Tippoo. It never was the practice under any one of those Governments to keep an account of waste lands, unless of such as, from the failure of heirs or other accidents, had reverted to the Sirkar. The accounts contained a register of the number of land-holders and the fixed assessment of their respective estates, the total of which formed the Jumma; but they took no notice of waste lands, when there was a proprietor in existence. As long as he was present, he was responsible for the full rent, whether he cultivated or not. This was little felt under the Biddenore Government when there were very few proprietors who had not the means of cultivating the whole of their estates, but it became a serious evil under Hyder and Tippoo when the increase of rent diminished cultivation, and by being thrown upon a narrower space (share ?) pressed harder upon the land-holders. Both their assessments must therefore be reckoned higher than they appear to be from the statement. There is no method of ascertaining with accuracy what in either of them, was the quantity of waste in those estates which composed the jumma, and which, of course, was subjected to the full rent in the same manner as if it had been cultivated.'
11. These explanations by Munro show that the lands 'with which he was dealing were lands which were cultivable and which, with only small exceptions, were actually under cultivation in the Rani's time. He certainly was not dealing with great tracts of immemorial forest on the ghats, miles away from any cultivation or with rocky and uncultivable areas such as often exist on the slopes of the lower hills above the cultivated villages. Further on, wo find that Rs. 3,330 was added to the rent roll on account of the ' cultivation of ancient waste in Hyder Ali's time and a smaller sum on a like account in Tippu's time. In Col. 82 we find an entry ' deductions from Tippu's assessment on account of waste lands, &c.;, Us. 1,50,940.' As regards this Munro explains that this large deduction was made by him in the year then current (1799- 1800) and was 'principally composed of waste lands of which the proprietors are extinct; and which though they have been in that state for a long time past, had been permitted to swell the jumma at the beginning, and outstanding balances at the close of the year.' As Es. 2,46,000 represented ' the balance of standard rent of the sarcar lands actually occupied and paying rent at the end of the Biddenore Government,' and as Rs. 1,50,940 represented lands of which the proprietors were extinct, it will be seen that some two-fifths of the land which had once been occupied by private persons had reverted to Government, and was in their hands as waste land which they were as free to deal with as land which had never been in private occupation ab all. As Munro. himself says ' From these and other causes there were in many parts of the country tracts of waste land which paid no rent, and which could not be sold ' (para 17).
12. It is necessary to bear in mind these facts and statements made, by Munro himself in order to correctly understand statements made by him later on in the same letter and in his letter of the 9th November 1800, when dealing with the proposals of Government to introduce the Bengal (or Cornwallis) Zemindari system into Canara. So when in para. 27 he says 'the only land in Canara that can in any way come under the description of Sirkar land is unclaimed waste,' it is evident that he means not ' unclaimed,' but unoccupied waste, for it is obvious that a mere claim to land could not give, or even evidence, a title to it. Again in para. 28 he says ' all public documents convincingly testify that Sirkar land was altogether unknown,' and gives as a proof of this the fact that Inams were given in the form of grants of land revenue, not in the form of grants of land. That, no doubt, was the usual, but not the universal form, for Mr. Sturrock shows that waste and forest were sometimes granted (Exhibit U of printed documents in A. Section 26). But even if it were the universal form, it is clear that the conclusion does not follow from the premises. Whether an Inam be given in the one form or the other is a matter of convenience or custom. If the cultivable land is already completely, or almost completely, occupied, as it was from early times in Canara, and nothing remained but forests or unprofitable waste land, it is clear that the grant of the latter would be useless, and the only convenient way was to make a grant of the revenue payable by existing occupants. But, indeed, it is manifest from what Munro says later on that he is not denying the existence in Canara of waste lands at the disposal of Government, for he expressly says (para. 22 of the letter of 9th November 1800) that the Zemindars, if created, 'ought to be vested with the proprietary right of all waste lands to which there are no owners' and again in the same para : 'If we restrict the division of lands to the original estate and determine that all subsequent acquisitions whether from the reversion of inferior estates or the cultivation of Sarkar waste lands, etc.' When, therefore, he says ' Government in reforming the revenue system of this Province have no new rights to private property in land to create'' he is referring to Government rights in occupied land, not in waste land, for he goes on to say that Government ' may augment the value of the property by diminishing the assessment, but the right itself is already as strong as purchase or prescription can make it and is as well understood as it is in Great Britain.' So in para. 17 of the same letter Munro describes Canara as a province ' where almost all land is private property derived from gift, purchase or descent from an antiquity too remote to be traced.' In this passage Munro is discussing and opposing the introduction of a Permanent Settlement of the type just established in Bengal by Lord Cornwallis which was understood to imply the creation of a class of great landed gentry or Zemindars, a recognition of them as proprietors of the soil, and the fixing with them in perpetuity of the revenue payable to Government; an arrangement, which, if carried into effect on the Bengal model, would have been irreconcilable with a recognition of the existing rayats, or wargdars, as owners of the soil occupied by them and paying revenue direct to Government. As he himself points out at the end of the sentence 'great proprietors cannot be established without annihilating all the rights of the present landlords.'
13. It will be remembered that the very thing that Munro feared did come to pass. In Section 2 of the Regulation for establishing the Zemindari system in Madras (Reg. XXV of 1802) it was declared that ' an assessment shall be fixed on all lands liable to pay revenue to the Government, and in consequence of such assessment, the proprietary right of the soil shall become vested in the Zemindars' etc. The Regulation was misunderstood as giving Zemindars a proprietary right even in the lands of the old occupants, and it became necessary to correct this false idea by passing Regulation IV of 1822 which, declared that the earlier Regulation was not intended to define, limit, infringe or destroy the actual rights of any description of land-holders or tenants.
14. By 'all land' in the passages quoted above Munro meant all 'occupied land' and by ' private property ' Munro meant land assessed so low as to command a ready sale 12 B.H.C.R. pp. 41 and 66. See too, I.L.R. 3 B. 524,. In para. 38 of his letter of 31st May 1800, speaking of the high assessment in Soonda, he says ' there seems to be nothing else wanting but a reduction of the present assessment in order to constitute the rice lands private property as well as the gardens'; and the Board of Revenue on the 5th August 1813 writes : 'In provinces where the land tax is happily so moderate that private property in the soil is still preserved 12 B.H.C.R. App. 194.' So he states in his minute of 1807 that 'nothing can be plainer than that private landed property has never existed in India except on the Malabar Coast I.L.R. 3 B. 524 and the references there quoted.'. His argument was that you cannot ignore the ancient titles and the valuable proprietary rights which the raiyats here possess by giving their land to Zemindars, as you might in other parts of India, where, owing to heavy assessments, the rayats have no saleable interest, or in other words, no property in the soil.' He certainly did not mean that the immemorial forests, and immemorial waste lands generally, did not belong to Government. It is in a similar sense that the language of the Court of Directors in their despatch of the 17th December 1813, and of the Board of Revenue in their minute of the 5th January 1813, and of Mr. Thackeray in his report of the 4th August 1807 quoted by the District Judge, must be understood. They are referring to the lands which were then occupied or which had been occupied and were then abandoned, and they were not referring to the immemorial forests and uncultivable waste lands. There is no question before us of interference with the admitted holding of any occupant. Government admits the fullest private ownership of such lands, subject only to liability for the land tax assessed by Government. The question before us is with regard to certain waste lands which the raiyats allege form part and parcel of their holdings and over which they claim the same rights as over the land actually cultivated by them; while the Government alleges that these lands are not included in the holdings, but are Government waste lands in which the cultivators of the adjacent lands have been allowed such privileges as the taking of leaves and twigs for manure, the cutting of fuel for domestic use, and the cutting of the less valuable trees for the building of their own houses and for furniture. The difficulty arises from the fact that the holdings of the raiyats have, in most cases, never been defined by boundaries or exact areas, and the Government officials have from time to time admitted claims to forest and waste lands as included in some of the holdings, and this has made it possible for the raiyats generally to advance claims to all the waste adjacent to their cultivation, and now to allege a presumption that such waste land belongs to them and not to the Government. In Canara owing to its heavy rainfall, and the consequent breaking up of the country into hills and level valleys between them, the cultivation is mainly in the level valleys between the hills, while the hill sides are naturally used for the grazing of the cultivators' cattle and for the collection of leaves and fuel. Each ridge or 'netticut' forms a kind of natural boundary, or limit, within which the cultivator of the valley below grazes his cattle etc, and this user up to the ridge gradually led to a claim to the fall proprietary right up to the ridge. The convenience of the ridges, or crests of hills, as boundaries led to their being often adopted in the mulputta title deeds which were in many cases issued prior to 1844, and this strengthened the idea that the warg lands always or usually ran up to the crest of the ridge, and gave colour to the cultivators' claims. In some parts of the District and especially near the coast, owing to the absence of the hills the claims could not be defined by reference to the ridges, but there were generally some jungles or pasture lands over which similar privileges were exercised and to which similar claims were made (District Manual, p. 129).
15. In this connection we may point out that much misconception has arisen from the use of the word ' estate' as the English equivalent of the 'warg' or holding, of a raiyat. Warg is derived from the Sanscrit varga-a leaf-and was applied to the palm leaves on which the revenue official kept an account of the raiyat's holding. A man's warg was simply the account of the assessments payable by him for his lands, which were not necessarily all -adjacent, but might be situated at a distance from each other and even in different villages. The word ' estate ' conveys the idea of a compact property, which is wholly alien to the idea of a warg. The use of this word 'estate' for the raiyat's holding has thus led to the idea that a warg is a more or less compact entity, comprised of cultivated land and of all the uncultivated land and forest lying between the cultivated portions. When once it is understood that the lands of one warg may be intermixed with those of another warg, and may even be in different villages it will be apparent how erroneous this idea is, and how liable the use of the word ' estate' is to lead to an erroneous conception of the rights of the wargdar to waste land adjacent to his cultivated land. So long ago as 1839 Mr. Maltby, the Collector, drew attention to the fact, that extensive tracts of Government jungle and waste had been appropriated in this way by persons who had no title whatever or whose right was at least extremely doubtful, and in 1848 Mr. Blane went very fully into the subject in his report to the Board of Revenue, dated 20th September and quoted in Sturrock's District Manual, p. 125. He wrote : ' (37) The theory at present asserted by the land-holders of Canara and which has been practically acted upon at least since the tharao settlement (1819) is this, that their estates include not only the land which was in cultivation at the time the former settlements were made, but also tracts of waste of two descriptions:-First, the waste lands which had fallen out of cultivation in former times, and, second, immemorial waste lands which never were in cultivation, both of which kinds of waste they allege that they have a right to bring under cultivation without any additional assessment. They assert that the beriz was fixed upon the entire estate, including lands of every description. Of these waste lands, as I have before stated, but cannot too often repeat, there is no account or record whatever.'
(40) Upon the whole I am inclined to the belief that it was the intention, in fixing the tharao beriz, that no account should be taken of increased cultivation within the limits of the estates,
41. With respect to the other class of waste lands claimed as being attached to estates to which I have referred, viz., the immemorial waste, they may be considered to forma distinct question from that of the waste lands just referred to. It is to the claim to these lands which has been incautiously admitted or at least not opposed, that I attribute the absorption of nearly all the rekahnust or Government waste land The claim appears to have recently attracted the notice of Government, for it is apparently respecting these that it called for some information in its Minutes of Consultation, dated 5th August 1845. There are considerable tracts of such kinds of waste land attached to a great part of the estates, some of which is cultivable and some consisting of hilly or stony ground incapable of improvement. They are often termed ' Kumaki' lands or lands allowed to assist in the cultivation, and they were intended to afford to the raiyats the means of procuring leaves from the brushwood or jungles growing on them as manure for their fields and to furnish grass as fodder for their cattle; but they do not appear originally to have differed materially from the waste lands used for similar purposes in other parts of the country except that in place of being common to the whole village, they were divided and enjoyed in separate portions by the individual land-holders. The original terms upon which they were held then I conceive to have been essentially as an adjunct to, and in connection with the cultivated lands and the right to them to have been a modified right, and only to be enjoyed for the purposes for which they were held as above stated. The usufruct of them for such purposes was a necessary concession, but I do not conceive them to have been on that account the less Government lands, but only lands which they were permitted to occupy for particular purposes.
(42). If such were in general terms the nature of the tenure under which they were held it has become entirely altered under our administration. The raiyats now claim the absolute proprietary right in them the same as to their cultivated lands, and as a necessary consequence of such aright, the liberty to bring them under cultivation without the payment of additional assessment and even of selling or letting them, and thus separating then, if they choose, from the cultivation and alienating them from the original purposes for which they were intended. Another effect of such a tenure is, they can prevent others from taking them upon a patta and upon a fixed assessment payable to Government, and the person occupying them pays the rent to the land-lord not to the Government, and is in every respect his tenant. It is necessary to observe, however, that right to cultivate such lands is not admitted in theory, but it is, as a general rule, actually enjoyed in practice, from the simple cause to which I have so often alluded that we do not know the extent of the original estates, and cannot tell, therefore, what is new cultivation and what is old and the ready answer to all questions on the subject is that it is part of the original cultivation.
16. It will thus be seen that Mr. Blane in 1848 admitted the full proprietary right of the wargdar to the waste lands (adjacent to his cultivation) which had formerly been cultivated, but which had fallen out of cultivation (Warg banjar); but as regards land which had never been cultivated he did not admit any proprietary right, though he allowed what he called a modified right, what Mr Sturrock calls an easement, but what is really only a license or privilege, viz., to make use of the leaves and other produce of the land as an aid to the cultivation of the warg lands and for domestic purposes, subject to the full proprietary right of Government. Mr. Sturrock says that this is the view which has been held and acted upon ever since by Government and its Revenue Officers.
17. Land within 'nettikut ' limits has not since 1848 been regarded as attached to any of the adjacent warg lands, while exclusive ' Kumari ' privileges have been conceded in the forests adjacent to the warg lands only to the extent of 00 yards all round each part of warg land. Beyond this limit of 100 yards the cultivators, i. e., all the wargdars of each valley have been allowed ' the common usufruct of the open hill sides up to the water-shed dividing each valley but must not cut down trees growing in this common land ''. (Proceedings of the Board of Revenue, dated 20th January 1865, No. 490.) The limitation of exclusive ' Kumaki 'privileges to 100 yards appears to have originated as far back as 1823, when Mr. Harris allowed Kumaki to that extent in Government jungles to such wargs as had not then any Kumaki lands attached to them, but the general application of the limitation to the old wargs appears to have been made in 1845.
18. Such being the established revenue system and practice in the District for the past half century, it would, we think, require much stronger evidence than has been adduced before us in these cases, to justify us in laying down any rule that the practice is not justified by the revenue history of the District and that on the contrary there is a presumption that immemorial waste land adjacent to what is admittedly warg land must belong to some private owner as contended by the learned vakil for the appellant
19. There is no ground whatever for saying that the land tenures of Canara, and the respective rights of the land-holders and of Government in Canara are on the same footing as in Malabar. We have seen how by repeated proclamations and executive action, the Government asserted its right in the forests of Canara from the earliest times after the acquisition of the Province. As regards immemorial waste lands, we know that Manu founded the right of the cultivator on the fact that he ' had cut away the wood and cleared and tilled the land ' (chap. IX, pl. 44 of Sir W. Jones' translation), a basis that would give him no proprietary rights in waste land which he had never cleared or cultivated. Canara, we know, was under the sway of the Vijanagar and Bednore dynasties for some 400 years and then was ruled by Hyder and Tippu for some 40 years before it was conquered by the British. It is now well established that under the Hindu Common Law the immemorial waste lands of the country generally belonged to the ruling power, and it would be strange indeed if the essential features of the Hindu system were not established during the centuries of Hindu rule which preceded the Mahomedan conquest. The facts that we know with any certainty indicate that that system was, in truth, established. We know that the land assessment was based on an estimate of the grain produce of the land, which was divided in certain proportions between Governsment and the cultivator just as in the East Coast Districts. Mr. Ellis compared the land tenures in Canara to those in the Arudi Karai villages to the south of the Coleroon on the East Coast, where the right of Government to the waste lands has now, after protracted contest, been established as against the Mirasidars. We also find that the Native Government sometimes made endowments by grant of the was et land itself, including forests, though no doubt the usual form of grant was of the Government share to the produce of occupied land. (Mr. Sturroek's report of the 3rd April 1884 printed in Exhibit U, paras. 18 and 19).
20. When the Mahomedan Government succeeded the Hindu Government there can be no doubt that it exercised proprietary rights over waste lands, in accordance with Mahomedan Law. In Munro's account to which we have already referred in detail, we find considerable additions to the revenue in both Hyder's and Tippu's time from the ' cultivation of ancient waste.' The rule as to waste land is laid down in the Hidaya, Vol. IV, p. 129 : ' Whoever cultivates waste lands with the permission of the chief obtains a property in them; whereas if a person cultivates them without such permission, ho does not in that case became proprietor, according to Hanifa * * * Besides all waste lands are plunder, seeing that the Mussalmans acquired possession of them by conquest and hence no person can assume a property in them without the consent of the Imam as holds in all cases of plunder '. At page 91 of his work on the law and constitution of India, published in 1824, General Galloway writes, ' By the Mahomedan Law the land revenue of the Crown was fixed on the arable land only. That alone was given away to the husbandman who became the owner. All other lands remained the property of the State, and were ready to be given away, on application to any one who would undertake to cultivate them. If he did cultivate, well; if not within a reasonable time, which was limited to three years, the land was taken from him, and might be given to another, By law, therefore, it is evident that no right can exist in any individual, or body of individual, to any other description of land than that which is cultivated'. Nothing in fact can be more certain than that under the Mahomedan Law waste land was the property of the State, as shown in great detail in Vyakunta Bapuji's Case 12 B.H.C.R. at p. 53 et seq.
21. The British Government when it took Canara from Tippu Sultan in 1799 succeeded to the rights which he then actually exercises as sovereign, and the rights thus acquired continued in the British Government until given up by it. This was the view of the Madras Government in its letter of the 20th September 1809 quoted at p. 125 of 12 B.H.C. App Speaking of Inams the letter says: ' The Inams having been entirely resumed by the house of Hyder Ali, original grounds on which they were granted have been subverted, and the Company having succeeded to the right actually exercised by Tippu Sultan it cannot be incumbent on them to revert to the original institution of those grants'.
22. We have already shown that it cannot be held that Munro even in 1800 considered that Government had no proprietary right in immemorial waste lands in Canara. But whatever argument may be founded on some passages in his early reports, his minute of the 31st December 1824, in the earlier part of which he more than once referred to Canara, shows that in his later years he had no doubt as to the rights of Government in the immemorial waste lands. As pointed out in Vyakunta Bapuji's case 12 B.H.C. App at p. 58 : ' Both Sir Thomas Munro and Mr. Mountstuart Elphinstone maintained that the waste land now belongs, and has always belonged to Government. The former, in a minute of the 31st December 1824, penned by him as Governor of Madras, when his experience had reached its ripest maturity, after referring to the opinion of Mr. Ellis that the waste land in miras villages in Arcot belonged to the Mirasdars jointly, denied that they had ' the right of ownership. ' He added, ' The Circar (Sarcar) from ancient times has every where, even in Arcot as well as in other provinces, granted waste in inam, free of every rent of claim, public or private, and appears in all such grants to have considered the waste as being exclusively its own property. It may be objected that if this were the case, it might give away the whole waste lands of a village, and injure the inhabitants by depriving them of their pastures. It certainly might give away the whole, but whether the exercise of this right would be injurious to the inhabitants would depend on circumstances.' And again he says : ' In all villages, whether miras or not, the inhabitants reserve to themselves the exclusive use of the waste. But this right is good only against strangers not against the Circar (Sarkar) which possess, I think, by the usage of the country, the absolute right of disposing of the waste as it pleases, in villages which are miras as well as in those which are not. In the Dekkan, in miras villages, the corporation has not the right of disposing unoccupied land, but the Circar has'. And Mr. Elphinstone says : ' The unoccupied waste, as in all other cases where society has assumed a regular form, must, no doubt, have belonged to the State; but the King, instead of transferring this property to the intended cultivators for a price paid once for all, or for a fixed annual rent or quit rent (as is usual in other countries) reserved a certain portion of the produce, which increased or diminished according to the extent and nature of the cultivation. The rest of the produce belonged to the community of settlers.'
23. The State, he subsequently, at some length, shows, might grant those waste lands on such terms as it deemed fit and found practicable.
24. With reference to these considerations West, J. in Baskarappa v. Collector of North Canara I.L.R. 3B. 584. lays it down that ' under British rule though its introduction would not extinguish private rights already fully acquired, the principle from which we must start is that waste lands belong to the State'.
25. The British Government having thus succeeded to the full ownership of all forest and immemorial waste lands, has it in Canara ever abandoned those rights generally to any person or sets of persons We do not find any evidence that it has.
26. We have already seen how explicitly and repeatedly the right of the State in the forests was asserted in proclamations issued by, or under the direct orders of Government, and the proclamations were followed by executive action. We also know that the British Government has from the earliest times formed new wargs by grants made from immemorial waste. Such new wargs are locally distinguished by a special name and are known as Hosagame wargs (District Manual, p. 120). They aredistinct from re-grants of escheated or abandoned wargs. Several Hosagame wargs are referred to in the evidence in the cases before us and in some instances (see judgment in App. 28) these new wargs have been formed out of waste land actually contiguous to cultivated warg lands, and the new wargs have sometimes been assigned to strangers having no adjacent warg lands. At pages 122 and 123 of the District Manual Mr. Sturrock gives the rules for the classification and grant of these lands and says: ' There are but few assessed waste lands in this District, except in localities where they are not now much sought after, and consequently the majority of darkhasts are for unassessed waste, and are dealt with as far as possible under the same rules as are in force for applications for assessed waste in other Districts.'
27. The formation of these new wargs as part of the regular revenue system of the District conclusively negatives the contention that all waste lands in the District belonged to the ancient Wargdars. These new wargs are formed out of lands in which previously the old wargdars had enjoyed Kumaki privileges, and this fact goes far to show that the Kumaki privileges were privileges and nothing more, and were similar to the privileges enjoyed by mirasidars in other Districts in the Government waste lands of their villages.
28. No evidence has been adduced before us to show that the wargdars do now, in fact, exercise or have generally in the past, exercised, acts of undoubted ownership in the wastelands adjacent to their cultivation and running up to the Netticut or ridge, such as the granting of leases to tenants for cultivation, the cutting of the more valuable timber trees for sale, and the like. All that they have generally done are such acts as the Government allows to be done in what are admittedly Government forest and waste lands for the benefit of the adjacent cultivation, such as the taking of fuel and of leaves for manure (see Judgment in A. Section 28, infra). As pointed out by West, J., in Baskarappa v. Collector of N. Canata I.L.R. 3 B 586 'In the case of a private owner even, the allowance of acts which do not necessarily involve any denial of his ownership, or a grant from him, does not suffice to create an ownership against him; and the mere non-interference of the State, to which neglect is not to be imputed, is not to be accounted for, if it can be otherwise accounted for, on a presumption of a surrender of its ownership. Such a transaction must be evidenced by an undisguised and effective appropriation assented to or submitted to by some one having due authority, or else fortified by an equivalent law of prescription'. It may be added that 'even though there had been no interference on the part of the revenue officers with the free use of the forest, yet that free use, without an exclusive appropriation, would not in itself constitute an exclusive right as against the public. The right arising from the State's eminent domain is not extinguished by its mere non-exercise; and its exercise was not called for until some public injury or inconvenience arose I.L.R. 3 B. 739 'and' there can be no grant, no acquiescence in possession, unless the essential elements of possession, a fixed, a definable, an exclusive occupation exist and are present to the perception of the parties I.L.R. 3 B. 583'.
29. All these considerations point to the conclusion that the general presumption is in favour of Govenment ownership of any immemorial waste lands to which no private person can show a title by grant, or by such user and occupation as is inconsistent with the proprietary right of Government. What acts prove such user and occupation must be determined according to the circumstances of each case separately. On the other hand, land which has been at any former time cultivated may generally be presumed to be warg land, unless it is shown that it was Kumri or otherwise not included in any warg. As to grants we know that 893 Mulpattas, or title deeds in which the boundaries of the lands were specified, were issued prior to 1844. These grants often include forest and waste lands, and, though at one time, it was thought by some that it was not intended to grant or acknowledge proprietary right in such lands, Government since 1881 has acknowledged the full proprietary right of the grantees to everything within the boundaries in those grants (C.O. dated 7th Decembar 1881, No. 889 R.D.) and no difficulty can now be felt in dealing with these cases except in identifying the boundaries. The fact that forest and waste was included in these title deeds, even if the omission to secure the proprietary rights of Government therein was not unintentional, is only evidence at most that the Revenue officers who issued those title deeds thought that the particular patches of forest and waste included in the deeds belonged to the particular wargdars they were dealing with. It cannot be regarded as proof that any other patch of forest or waste belongs to some other wargdar, especially in view of the fact that when the effect of the terms of these title deeds began to be realized their further issue was, in fact, discontinued in 1844, and finally forbidden in 1859.
30. The conclusions at which we have arrived are in accordance with the decisions of this Court in all the cases in which these questions have hitherto been considered. In the case of Subbaraya v. Krishnayypa I.L.R. 12 M. 442 the Collector granted to another certain land which was included in the Kumaki waste land attached to the warg of the plaintiff. The plaintiff sued to recover possession of the and, but the Court, (Collins, C.J., and Parker, J.) referring to the two Bombay cases quoted above, held that ' the principle to start from is that waste lands belong to the State,' and that as this was waste land not included in the plaintiff's warg, or holding, but only attached to it as Kumaki, that is, as an aid to the cultivation of warg land by supplying leaves and manure, etc., it was open to the Collector to grant it for cultivation to any other person at his discretion. It may be that in that case the general rule was taken for granted and there can be no doubt there was not the elaborate examination into the question from the historical point of view which there has been in the present case. In the present case we have had the advantage of hearing a very full argument, and of considering all the available documentary evidence which can throw any light upon the question. After giving full consideration to the arguments and the documents the conclusion at which we have arrived is that the law as laid down in Subbaraya v. Krishnappa I.L.R. 12 M. 442 is good law. The same view had been taken in an earlier unreported case S.A No. 86 of of 1886, Fernandez v. Madappu in which the Court (Kernan and Parker, JJ. held ' the plaintiff is not entitled to have 100 yards next his warg kept waste, so that he may use the same. The Government are the proprietors of the waste lands and they had the power at any time to give them on darkhast. They have given them to the 1st defendant on darkhast, and before they did so the appellant applied for them on darkhast, and this was refused. According to the custom of Kumaki, a Wargdar is only entitled to an 100 yards waste next to his warg so long as they remain waste.' In S.A. 436 of 1899 the claim was allowed solely upon the ground that a grant had been proved which comprised the whole of the area within the boundaries without any reservation in reference to forest land. In Criminal Revision Case No. 326 of 1901, two members of the present Bench upheld a conviction of a Warg-dar for cutting timber in the Kumaki attached to the warg.
31. We are not aware of any decision of this Court in which doubts as to the correctness of those decisions have been expressed.
32. The decision in the Attapadi Valley case Secretary of State v. Vira Rayan I.L.R. 9 M. 187 is irrelevant since it relates t, Malabar, the revenue history and tenures of which are very different from those of Canara. In that case the Judges considered it of vital importance to determine at the outset whether the land in question appertained to the District of Malabar, and they are careful to limit the statement that there is no presumption that forest lands are the property of the Crown to the District of Malabar. That case was, moreover, one in which Government as plaintiff sued for a declaration of the right of Government to the land, and the suit was dismissed expressly on the ground that the respondents (defendants) ' were in possession of and recognised as proprietors of the lands they claim by Government Officials for a long period,' and on the ground that there was ' no proof of possession on the part of the Crown and no proof that any cause of action has arisen against any of the defendants within 60 years before suit.'
33. In Case No. 9 of 1831 in the decrees of the Sadr Adaulat p. 34, to which the District Judge refers, the Collector of Canara claimed to have the right to eject a person from a garden. As the Judgment puts it ' the point maintained is that Government being the landlord and proprietor of the garden in dispute, the principal Collector, as the servant of Government, had a right to oust the plaintiff, she being a tenant-at-will,' and as ' the garden now in dispute always remained in the possession of the Sarkar.' The garden had, in fact, been in possession of the defendant before the British Government took possession of the country, and as the Court pointed out, she had ' continued to occupy the premises on ' Beriz Puttahs' from the Collector, the tenor of which appears to involve an acknowledgment of proprietary rights in the occupant rather than the contrary as contended for by the appellant ' Such being the facts of the case before it, the Sadar Adaulat naturally enough held that the 41st para of the minute of the Board of Revenue, dated the 5th January 1818, was conclusive evidence that Government had no right to the garden in dispute. There is absolutely no decision in the Judgment, nor even any obiter dictum, to the effect that Government in Canara has no title to the forest and immemoral waste to which a private title is not made out.
34. Such being our conclusions on the general questions of principle, we must now consider the particulars of each of the appeals before us.
In Second Appeal No. 1277 of 1900.
35. The learned Advocate-General contends that at the time when the claimant's warg land were surveyed about the year 1890, the claimant made no claim to the forest now claimed, and that consequently the present claim is barred by Section 25 of the Boundary Marks Act (Act XXVIII of 1860, Madras) and relies on the Pull Bench decision in Kamaraju v. The Secretary of State I.L.R. 11 M. 309.
36. It may perhaps, be that the claim is so barred, but the Government has not adduced any proof that the procedure prescribed by the Act was followed, so as to make the survey binding on the claimant. No issue was taken, and the matter was not investigated by the Courts below. We cannot, therefore, in Second Appeal disallow the claim on this ground.
37. On the other hand, the claimant's vakil contends that the District Judge has found that the forest claimed forms part of the claimant's warg, and urges that this is a finding of fact which it is not open to us to review in Second Appeal.
38. We however, think that it is clear from a perusal of the 'District Judge's judgment that he misunderstood the common law of the District and had not present to his mind a correct view of the presumptions in regard to forest land in Canara which we have seen arise from a consideration of its Revenue history and peculiar tenures. For instance, he accepts a brief statement from the Imperial Gazetteer that ' almost all land in South Canara is private property, some unclaimed waste and lands escheated to Government being the only exception. The whole is divided into estates (wargs), &c.;' We have seen how inaccurate and inadequate this whole passage is as a definition of the tenures of the District and the respective position of the Government and of the wargdars quots the forest and immemorial waste lands, and the misconceptions on these fundamental questions of the common law have misled the District Judge in his appreciation of the evidence that has been adduced.
39. It is also clear that the District Judge has attributed to the claimant's witnesses evidence which is not to be found on the record and he has not dealt with the important evidence given by the Village Officers on behalf of Government or the inferences to be drawn against the claimant from his own petitions and from the Revenue receipts filed by him. For instance, in para. 2 of his Judgment he says: 'Three witnesses were examined on behalf of the appellant (claimant), one being his Kariastan and the other two his tenants. Their evidence is to the effect that the forest has from time immemorial been included in warg No. a 32nd that the appellant and his ancestors have exclusively exercised proprietary rights over it.' Not one of these witnesses says that the forest is included in warg No. 32, nor do they say that the claimant has exercised exclusive proprietary rights over it. The Kariastan merely produces Exhibits A to D and says that he ' sends coolies to the forest to bring firewood, leaves, twigs, etc. from the forest', and ' I have prevented many persons from trespassing and collecting produce in the forest. The watchers bring them to me.' These acts, as we have seen, do not by any means prove exclusive proprietary right as against Government. They are precisely the acts done by all wargdars in regard to Government land in which they are allowed ' Kumaki', or Nettikat privileges for the benefit and better enjoyment of their warg lands. The two tenants no doubt say that the claimant has been ' in enjoyment of the forest from time immemorial', one of them says that the forest ' belongs to the claimant', and they give as a reason for this view that no one is allowed to take things from the forest without the claimant's leave, but the effect of this general evidence is rendered comparatively unimportant by the fact that both say that other wargdars similarly enjoy and take produce from the slopes of the hills above their wargs. Thus if the evidence of these witnesses is to be accepted as proof of the claimant's exclusive proprietary right in the forest, it would equally justify the finding of similar rights in all wargdars in the forests stretching from their warg lands to the crests of the hills above them; but we have seen that these Nettikat privileges are something very different from proprietary rights and do not negative the proprietary right of Government.
40. The witnesses also refer to the claimant paying watchers to keep away trespassers and, in Exhibit C we find entries of such payments, from time to time, for many years past, but the District Judge has not noticed that the keeping of such watchmen is not necessarily proof of a possession adverse to Government. They are necessary to prevent trespassers from other villagers taking the produce of lands. As long ago as 1858, the custom of keeping such guards was recognized, and its practice even enjoined by the authorities as a means of preventing violence and theft and the destruction of the forests. Mr. Maltby in his proclamation of August 1854 (printed as Exhibit H in the documents in A.S. No. 20) after re-iterating the rights of Government to the 'forest and hill etc., excepting the lands under cultivation' and informing the people how they were to proceed if they required timber etc., from Government jungles or from Kamaki lands, proceeded as follows:
There is no objection to the ryots guarding and growing the forest situated near their lands or according to custom of the country, as far as the Nettikattu or Niradhare, for the aid of the cultivation of their lands, and to their using the grass, dry leaves, and fuel therefrom. Yet on this pretext the forest should not be cat from the bottom (roots), and sold. If for any good reason it is necessary to cut the forest from the bottom, a petition should be made with regard to it and such orders as the merits of the case deserve shall be given.'
It has been noticed in many proceedings that on account of the ill-will which the ryots bear towards each other, strangers cut leaves, fuel etc., by force from the forest situated near the lands of another and grown by him by keeping guard over it and it is made the subject of a suit. If such things take place, there is reason to fear violence and theft being committed and to the growth of forests being distroyed. Therefore in future each should guard the forest in the neighbourhood of his lands as ordered above, only the leaves, grass, dry leaves and fuel necessary for the aid of cultivation of his lands should be used and other people should not enter that forest. There are lands which have no forest in the neighbourhood. Those that cultivate such lands should remain separate, and make use of leaves and fuel for the aid of their cultivation from the forest enjoyed by the ten people (Hattu Mandi). (Note.-That is, by the villagers generally).
If any one cuts trees and forests contrary to the order given above, the same shall be attached and those that cut the same shall be punished according to law.
41. The acts then, to which these witnesses speak are consistent with the forest being the property of Government in which the claimant enjoyed so called Nettikut privileges. It is remarkable that none of the witnesses speak of the claimant ever felling timber, or giving permits for such felling or for cultivation in the forest. These are the especial acts indicative of ownership which might be looked for if the claimant, in truth, exercised anything more than ' Netticut' privileges.
42. The claimant's petitions show that her original claim on the 16th May 1894 was not to proprietary right, but rather to the continuance of the existing Kumaki or Netticut privileges. She there speaks of the forest as 'adjoining' not as forming part of her warg No. 31 and as being necessary as an aid to its cultivation by supplying manure and leaves etc., and for fuel. In her next petition, dated 18th September 1894, her Kariastan says he will adduce documentary evidence to prove her title to the forest. This it may be noticed, he has not done. In the third petition, dated the 18th October 1894, the Kariastan speaks of the forest as 'abutting' both on wargs Nos. 31 and 32 and adds that 'the chittas of warg No. 32 bring to light another circumstance of the utmost importance,' viz., that a considerable portion of the forest has been held by the house as an integral part of the wag No. 32 itself for which an assessment of Rs. 44 on a distinct heading has been levied for that warg.'
43. Here the forest is no longer only ' adjoining' warg No. 31, but it ' abuts' warg No. 32 also, which is a much larger warg, and a portion (not the whole) is an intergal part of the warg, charged with a separate assessment. In the next and latest petition, though the forest is still spoken of as 'adjoining wargs Nos. 31 and 32' yet the whole is claimed as a portion of the assessed land. It seems unlikely that the claim would have been made in these uncertain terms of progressive comprehensiveness if the lands were really part and parcel of the warg and had been held as such in proprietary right for many years.
44. That such was not the true character of the land appears to be almost demonstrated by one fact to which the District Judge has hardly referred. It is this. Exhibits A and B are the Jamabandi chittas, or Revenue accounts, for the years 1819 to 1893 inclusive. The Rs. 44 referred to in the claimant's petition of 18th October 1894 is the 11 (huns) which appear in line 3 page 2 of Exhibit A as the assessment imposed in 1803 as 'Sarkar demand on darkasted land.' There is nothing to suggest that this was a new assessment on forest land already included in the warg. The description of the land as' 'darkasted' i.e., obtained from Government on application to the Revenue authorities, negatives the supposition that the forest or waste land adjacent to the cultivation was then part of the warg, for, if it was, no extra charge would have been made on its cultivation, for the assessment on a warg is a lump sum payable on all the lands in the warg whether they be cultivated or left waste. Moreover, in, the same accounts (page 12) in the fasli 1265 (1855) we find an entry 'Hosagame Rs. 45-3-2 ' and again (page 9) in 1889 we find an entry ' excess on Hosagame for this year Rs. 3-2-5.' Wo have seen that Hosagame is a technical term applied to land newly granted for cultivation out of the Government immemorial waste or forest. If the claimant hold the lands as part of his warg, they would not have been granted as Hosagame and they would not have been charged with assessment. The District Judge evidently did not understand this, for he says that the system under which warg lands left waste and again cultivated are assessed, is referred to at p. 220 of 12 Bom. H. C. R. App and 'explains why the appellant in this case obtained a patta for warg land newly cultivated some years ago.' We can find no such explanation in the passage referred to. We think the District Judge has altogether misunderstood these Hosagame entries and the inferences to be drawn from them.
45. Then turning to the evidence of the three village officers examined as witnesses by Government we find that the District Judge sums it all up in one sentence of three and a half lines and then makes no further reference to it in the judgment. Yet that evidence is very important and deserves consideration. The shan-bogue (karnam) proves that the Warg No. 32 consists of 72 acres- particulars of which are given in the (survey) A Register (produced)-all being cultivated as one, two or three crop land (betta, majal, bail) with the exception of three acres of waste. He distinctly states that this is the full area on which assessment is paid and that there is no other land belonging to or attached to the warg No. 32. There was practically no cross-examination as to this evidence. If it is true, there is an end of the claimant's case, yet the District Judge makes no reference to it. It is not necessary in this Second Appeal to discuss the other evidence of the village officers. It is enough to say that much of it appears to be highly pertinent to the question before the District Judge, viz., whether the forest claimed was part and parcel of the warg or was not included in it, and the District Judge has apparently not considered it Lastly, the District Judge refers to Exhibit D(II) as a genichit executed by a tenant of the claimant. This document has not been proved; nor is it shown to have been acted upon. It is not admissible as evidence.
46. In these circumstances we set aside the decree of the District Judge and remand the appeal for disposal with reference to all the evidence in the case, and with reference to the general principles and presumptions which we have found to be established on a review of the revenue history and tenures of the District. The District Judge may at the hearing of the appeal, if he sees fit, admit further evidence properly admissible in appeal, on behalf of either side, including the petition, dated 26th November 1888, by the grandmother of the claimant applying to Government for land adjoining Warg No. 82. aud the order thereon (printed at pp. 53 and 45 of the documents in S.A. No. 1276.) Costs in this Court will abide and follow the result.
In Second Appeal No. 1276 of 1900.
47. In this case the District Judge has found that the claimant's ancestor had obtained confirmatory grants of the tracts in dispute from the Vital Rajah (Exhibits B, D, E,) prior to the conquest of the country by the British, and that his family had been in continuous possession ever since, such possession being evidenced by such acts of ownership as the making of tanks in the forest, the construction of a boundary wall, the felling of the trees and generally by using the forest as they pleased to the exclusion of all others. This is a finding of fact with which we are not at liberty to interfere in Second Appeal. There are not in this case those special facts which exist in S.A. No. 1277 and which prevent us from accepting the Judge's finding in that case as binding on us. In the present case the title being found to be in the claimant, the acts of possession are naturally referrible to such title. Some of them are, moreover, of a character to indicate proprietary right in the claimant rather than such permissive use as is referrible to Kumaki and Netticut privileges, and such use as is not inconsistent with the proprietary right of Government.
48. We therefore dismiss this Second Appeal with costs.
In Appeal No. 28 of 1902.
49. The appellant claims a large area of forest in the proposed reserved forests known as Halesomeshwar and New Someshwar blocks on the ground that the forest claimed forms part of his Geni warg No. 5 and of his Muli warg No. 16 of Nadpal village. We think that the Forest Settlement Officer rightly rejected his claim, on the evidence before him. That evidence was, however, very meagre-After the appeal was filed, a plan of the locality was prepared by a Commissioner appointed by the Court and further evidence on both sides was admitted.
50. The whole of the evidence now before us makes it clear that the appellant has no proprietary right to the land. He rests his claim mainly on Exhibits H and A, and on oral evidence of enjoyment, Exhibit H is a statement prepared in 1822 for the purpose of showing the boundaries between Mysore and the Company's territories. It shows the crest of the ghats as the boundary and states the distance of this boundary line to be three leagues from the Mursevadur lands of the warg of Nadupal village and from the Arsinamane lands of Halesomeshwar village. It describes the whole of the interval as forest in which teak and jack trees grow and adds that the wargdar of Halesomeshwar (who appears to be the ancestor of the appellant) 'takes deer, boars, etc., and cuts for Kumri.' (Note.-It is agreed before us that the vernacular words which are translated in the printed records 'fells in the forest' ought to be translated ' cuts for Kumri.') It is not clear who prepared this statement, or what authority attached to it. But assuming that the statement is entitled to any weight, it certainly does not support the appellant's claim to proprietary right if the forest was then regarded as part of his warg it would have been so stated. The fact that he captured deer and boar and had Kumri (shifting) cultivation in the forest is in no way inconsistent with the forest being the property of Government, while the fact that these alone are recited as his rights or privileges in connection with this great tract of forest, extending for many miles to the top of the ghats, negatives the idea of his proprietary right.
51. On the other hand it is shown by Exhibit I, read with Exhibits VII to XI, that in this very year, 1822, in which Exhibit H was prepared, these forest tracts were entered in the list of Government forests prepared by the Collector, Mr. Harris. Mr. Webster, the Collector in 1876, in dealing with the appellant's claim to these forests says (Exhibits X)' that Mr. Harris' list was 'signed' by the appellant's grand-father as well as by the village officers. It is not clear from the records before us that the appellant's grantfather actually signed the lists, but Exhibit I Col. 5 shows that the list was 'prepared from information supplied' by the village officers and the appellant's grandfather as well as the actual cultivator of the Melarsinamane lands belonging to the latter (Exhibits VIII and X). Beading Exhibit H and I together, it is clear, that in 1822, the appellant's ancestor, the Collector and the village officers all regarded these ghat forests as the property of Government.
52. Then the appellant relies on Exhibit A. It is a chitta or statement prepared in 1829 by the Monigar (or Revenue Inspector) in obedience to an order from the Collector, showing the profits, boundaries etc., of warg No. 5 of Nadpal village. Its heading shows that it was prepaid ' in the presence of the village officers and ryots of Halesomeshwar for the purpose of issuing a Mulpatta.' The Mulpatta was apparently claimed by the tenants of the appellant's grandfather (Exhibit IV, para. 3.) The statement describes the lands said to be in the possession of each of the tenants of the warg and in many cases forests are entered as part of the tenant's holding. Some of these forests and small patches of which the measurements are given, but in other cases they are said to be so dense and extensive that they cannot be measured. There is nothing to show that this list was ever accepted by the Collector. It is certain that no Mulpatta was ever issued. The mere entry of these forests in an account prepard by a subordinate official from the statements of the parties interested (the appellant's ancestor being the karnam or accountant of the village), but never accepted or acted upon by the Collector, cannot be regarded as establishing the appellant's title as against Government, especially when the inferences to be drawn from Exhibits H and I, prepared only seven years previously, are borne in mind.
53. Then we find from Exhibits XII, XIII and XIV read with the evidence of the Forest Ranger who prepared the plan Exhibit XV, that in 1865 Government made grants of various portion of this forest for cultivation to persons other than appellant. They, in fact, created three Hosagame (or new) wargs in this forest within the boundaries given in Exhibits H and A, and no objection has even been taken by the appellant to this exercise by the Government of the fullest proprietary right.
54. The absence of any proprietary right in the appellant to these forests is also clear from the proceedings in Exhibits II to VI. These show that the lands comprised in the appellant's warg in Nadpal village were from very early times in the possession of tenants under the wargdar. In 1829 the tenants claimed to have permanent occupancy rights and asked for Mulpattas to be issued to them. Exhibit A was apparently prepared in connection with this claim. The Collector, however, appears to have rejected their claim and advised the appellant's father the wargdar, to sue them for possession. He accordingly filed O.S. No. 30 of 1867 on the file of the Karkal District Munsif, obtained a decree and got possession of all the property. Neither in the schedule attached to the plaint (Exhibit II) nor in the list of property delivered by the Court Amin (Exhibit III) is there any mention of forest. It is all described as bail (three Crop) majal (two crop), bett (one crop), garden land or houses or house site. In Exhibit IV, dated 26th March 1872, the appellant prayed the Collector on the strength of this decree to ' enter the warg and Kudtala (revenue registry) of the whole of the property' in his name and added: ' If perchance any land over which the Government has rights is included within the boundaries stated in the decree, it is enough if the warg and Kudtala of the cultivated land only are entered in my name.' The tenants, how-over, objected to the transfer and in his petition Exhibit V of the 28th May 1872 the appellant recited the history of the property and in his statement made to the Deputy Tahsildar on the next day said: ' It appears that about 25 acres of Government lands are included in the boundaries of the decree. I shall not make any improvement on that land without permission. I shall use it for leaves and fuel for the aid of cultivation only. It is enough if the warg and Kudtala are entered in my name only for the cultivated land.' These proceedings are important as they show, firstly that though the whole of the warg lands were in possession of the tenants, no forest lands were included; and, secondly, that when some 25 acres of forest was included in the decree, the appellant admitted that the inclusion was incorrect, that the forest was Government land and that he made no claim to it as part of the warg. It cannot be suggested that the forest now claimed by the appellant remained in, possession of the appellant while the cultivated landalone was in possession of the tenants. The appellant makes no claim to such separate possession. There is no evidence in support of it. The only evidence of possession of the forest land now claimed by the appellant refers to the tenants taking fuel and manure from it for the benefit of their cultivation, but the very language of the appellant in regard to this 25 acres included in the decree shows that the appellant regarded the use of the Government forest land for the taking of fuel and of leaves for manure as an aid to cultivation as a privilege enjoyed by leave of Government and not such as to indicate any proprietary right in the person so using the land. This brings us to the oral evidence of enjoyment relied on by the appellant. It entirely fails to establish his right. The appellant himself, though 52 years of age, gives no evidence of any acts of enjoyment of the forest land by himself or his tenants and he admits that his tenants have not cut and sold timber from it. He called three of the villagers but they merely state in the most general way that the appellant's family ' enjoy the forests' by taking firewood, leaves and twigs and small trees and they admit that precisely the same acts are done in the Government forests (or Revenue jungles as one of the witnesses calls them) All the witnesses say that there has been no cultivation or felling of timber at any time in the forests claimed. As already stated the so-called acts of enjoyment are such as Government permits, or until recently permitted, in its forests, and do not operate to create any proprietary right in the licensees.
55. The whole of the evidence, oral and documentary, shows that the appellant has no such right as he claims, and his appeal must be dismissed with costs, except the costs provided for by the order of this Court, dated 4 th December 1901.
In Appeal No. 27 of 1902.
56. In this case the claimants own wargs 15,16 and 17 of Anantadi. They claim the slopes of the Sulaimalai and Ballamalai hills between their warg lands in the valley and the watershed of the hills on the strength of an alleged Mulpatta, Exhibit A, and by virtue, of the prescriptive title acquired by long occupation, The Forest Settlement Officer disallowed the claim and the claimants appeal. If Exhibit A was, in fact, a Mulpatta granted by the Collector, and if the lands claimed were within the boundaries given in it, we would certainly be unable to accept the Forest Settlement Officer's view that it conferred no title to the forest land within its limits. As already stated the Government has now far many years past accepted the view of the Bombay High Court that the Mulputtas granted by Collectors do convey a title to all lands within their boundaries, subject of course, to the right of Government to assess them.
57. But Exhibit A is not a Mulpatta nor is it admissible as evidence that the claimant ever had such a Mulpatta. It purports to be a copy, not of an original Mulpatta, but of a copy of a Mulpatta. As such it is not admissible even as secondary evidence of the contents of the original (Section 63, Indian Evidence Act).
58. The claimants' vakil when producing the copy said that the original would be produced at the adjourned hearing, but it was not produced. Even if Exhibit A could be looked at as evidence of the alleged grant, the boundaries are so vague that it would be impossible, so far as the evidence before us goes, to say that the forest claimed is within its limits. Indeed the contrary would seem to be the case, as the northern boundary is said to be the rice land (' bail') of a certain warg, and three cocoanut trees, neither of which would be found on the top of a hill. Moreover there is nothing to show that the present claimants are the descendants, or heirs, or transferees of the persons mined in Exhibit A. Exhibit A is in fact, quite worthless as evidence of the claimants' alleged title to the forest.
59. Nor is there any evidence from which a proprietary title by proscription can be found. All that the claimants' witnesses say is that for many years past the claimants have taken from the forest in dispute leaves and manure for the benefit of their cultivated lands and that they have paid watchmen to prevent others from taking the leaves and manure. But, as we have already seen in dealing with S.A. No. 1277, such use of the leaves and manure of the Government forests is permitted by Government in favour of wargs situated close to the forests, and Government not only permitted, but enjoined the wargdars, so long ago as 1854, to employ watchers in order to prevent strangers taking the leaves and manure away from the forest to the injury of the wargs for whose benefit Government allowed it to be used. The evidence adduced by the claimants does not prove or even indicate any proprietary right as against Government. The fact that they adduce no evidence to show that they have ever cultivated the forest, or cut timber trees in it, or sold its produce, or planted up the slopes, suggests that their occupation is not proprietary, but only permissive in accordance with the Kumaki or Netticut privileges allowed by Government, and that such is the real character of their occupation appears from other statements of their own witnesses as well as from the evidence of the village officers. The claimants' first witness says that there are seven wargdars besides the claimants in Anantadi and that each enjoyed the slopes of the hill adjoining his warg just as the claimants did. Claimants' 3rd witness says ' I enjoy the slopes of the Sulaimalai adjoining my land as claimant enjoys those adjoining his.' Claimants' 4th witness says ' Other wargdars enjoy the Sulamalai slopes adjoining their lands. They enjoy the slopes up to the netticut. Claimant owns in the same way.' The Shan-bogue of the village gives the exact area of the claimants' three wargs and says plainly that ' The wargs have Kumaki jungle, but no other forest' and explains that the Kumaki land extends only for 100 yards round the cultivated areas. This is evidently the view also of the Potail of Mudanur who says that the claimants collect manure only from the slopes between the cultivated land and Sirthaguli a distance of a half a furlong (I20 yards). The evidence of the Potail of Anantadi is also distinct. He says that the claimants' wargs consist of ' fields, cocoanut and jack trees &c; The trees are on the bunds of the paddy fields. There is no warg jungle that I know of. There is no assessed jungle. The wargdar collects leaves from Sulaimalai and Ballamalai slopes. Before reservation they collected leaves from the whole slopes. The wargs have a right to 100 yards only margin. Other wargdars before reservation removed leaves, &c.;) from the hill slopes above their wargs for greater distances than 100 yards.'
60. All this evidence shows that the claimants, though using the leaves and manure of the forest for the benefit of their warg lands, did so not by reason of any proprietary right in the forest, but in accordance with the well known Kumaki and Netticut privileges sanctioned by Government in favour of wargs adjacent to the Government forests. The appellants' claim must therefore be disallowed and their appeal be dismissed with costs, except those provided for in the order of this court, dated 4th December 1901.