Sankaran Nair, J.
1. The Judge has now found that the plaintiff has been constructing the dam at the spot across the bed of the stream or thodu for the past 25 or 30 years, but he has also held that in view of the presumption that the stream is Government property it must be held that the plaintiff has failed to establish a right of easement as she is bound to prove uninterrupted user for 60 years. Objection is taken to this finding and it is argued that there is no presumption in Malabar that the riverbeds form Government property. It is contended that they form the property of the riparian owners, as under the English law, and therefore proof of user for 25 or 30 years is sufficient to create a right of easement in plaintiffs favour.
2. I shall first deal with the contention as to the ownership of the bed of the stream. In the case of riverbeds which are not tidal and navigable the law is clear. 'Prima facie every proprietor of land on the banks of a river is entitled to that moiety of the soil of the river which adjoins to his land and the legal expression is that each is entitled to the soil usque filum aquae' Wright v. Howard (1823) 57 F.R. 76. S.C.1 Sim. and St. 190.
3. In America also Story J. has held the same view, Tyler v. Wilkinson IV Mason. U.S.R. 397. 'Prima facie every proprietor upon the bank of a river is entitled to the land covered with water in front of his bank to the middle thread of the stream or as it is commonly expressed ad medium filum aquae.' The Privy Council in Khagendra Narain Chowdry v. Matangani Debi (1890) 17 I.A. 62 recognized the same right in a suit to which the Government was a party. In this Presidency the rule has been always enforced in numerous cases. A very strong case is that reported in the Sadr Court Reports for 1858 p. 188 where the claim of the proprietor to the accretion to his land was upheld though it was formed only as a continuation of an accretion to a Government village Sree Raja Ooppalapaty Jogee Jagannadharauze v. Sub-Collector Rajmundry (1858) MSCR 188. The Malabar Jenmis are undoubtedly proprietors of land under these decisions, Prima facie therefore the same rule applies.
4. But the District Judge refers to the judgment in Appeal Suit 245 of 1894 District Court, and in another, apparently Appeal Suit 500 of 1907 Sub-Court, in support of his view and gives certain other reasons in support of his conclusion. It becomes therefore necessary to examine them.
5. An earlier judgment of his own Court directly in point was not apparently brought to his notice. The District Judge, Mr. Wigram, the learned author of the Malabar Law, in Revised Appeal Suit No. 643 of 1876 on the file of the District Court of South Malabar considered this question. In deciding the appeal he first of all assumed that the lands reclaimed from the beds of rivers were the property of riparian proprietors but afterwards admitted a review to have the question fully argued. In his revised judgment he stated the point for decision in these terms: 'Whether by the custom of Malabar having the force of law, lands newly formed in, or reclaimed from, the beds of rivers are the property of Government.' I quote his judgment in extenso:
2. The English law on the subject is succinctly stated in Shelford's Real Property Statutes, 8th Edition, by Carson page 112. Where a river is not navigable the presumption is that the soil is the property of the owners on each side to the middle of the river and in the more recent cases it has been held that the soil of the alvens is not the common property of the respective owners on the opposite sides of a river but that the share of each belongs to him in severalty; and extends usque ad medium filum aquae and again that the right of ownership of a moiety of the bed of a river passes under a conveyance of lands on the banks of a river although the conveyance points to a boundary which would not include any part of the bed Bickett v. Morris (1866) L.R. 1 H.L.S. 47. Crossley and Sons Limited v. Lightowler (1866) L.R. 3 Eq. 279.
3. The principle seems to have been adopted by the Privy Council in a Bengal case reported at XIII Moore 467 although it did not form the ground of the decision. Their Lordships say: There is another principle recognised in the English law derived from the Civil Law that where there is an acquisition of land from the sea or a river by gradual, slow and imperceptible means, then, from the supposed necessity of the case and the difficulty of having to determine year by year to whom an inch or a foot or a yard belongs, the accretion by alluvion belongs to the owner of the adjoining land.
The same principle was adopted by the Madras Supr. Court in the case of a Godavari Lunkah (S.U. Decisions of 1858 page 188) and still more recently by the High Court in Second Appeal No. 480 of 1870 (not reported).
If such is the rule of law to be applied when the riparian proprietors are Zamindars who derive their estate from the ruling power a fortiori ought it to be applied to Malabar where from time immemorial the lands have been held by private persons.
4. The documentary evidence adduced by the Collector to prove the custom which it must be taken is an exception to the general rule is as follows:
After referring to the documentary evidence he continued,
And the Tahsildar of Ponnani, two wealthy jenmis and the Kariasthan of a third have been examined.
VI Judgment of the Civil Court of Tellicherry in A.S. No. 111 of 1861.
VII Judgment of do. in A.S.No. 464 of 1861.
VIII Plan of the locality now in dispute prepared under the Collector's orders after the suit commenced.
IX Three kaichits executed to the Government as jenmi in 1828.
X Two pattas granted by the Government in 1836 and 1839.
XI Book showing the grant of cowles in 1853 54 in which the share of the jenmi for lands in the beds of rivers is reserved to Government.
XII Five kaichits executed to the Government as jenmi for wastelands near the banks of rivers (1855).
XIII Eight kaichits of a similar nature (1859 60).
XIV Book containing a list of waste lands sold by Government (1858 to 1865).
XV Correspondence between the Collector of Malabar and the Board of Revenue regarding salt-water swamps (1856 to 1859).
5. Upon the evidence adduced it is impossible to doubt that at all events since 1854 the Government have claimed a right to deal with all lands newly acquired by the action pf the rivers or reclaimed from the river by human exertions as their absolute property and that that claim has never been disputed by riparian proprietors, some of whom have actually purchased such lands adjoining their estates from the Government.
There may have been isolated cases in which the Government asserted the same claim prior to 1854; but I cannot say that the evidence adduced on the point is satisfactory.
8. The question therefore resolves itself to this Can a course of dealings for 23 years acquiesced in by those interested to dispute them establish a custom which the law will recognise?
I confess that I expected to have evidence adduced of what took place when the Zamorin was a reigning sovereign and of what takes place to this day in Cochin and Travancore, the neighbouring states where lands are held on similar tenures. A custom must be based on immemorial usage and the cautious language of the Collector in the first letter of the correspondence (XV) shows that even as regards salt, water swamps on the banks of back-waters he was in 1856 doubtful as to the rights of Government.
9. On the ground that 6th defendant has wholly failed to prove the existence of any custom in Malabar which is (torn) to the general (torn) of law and that the proceedings of former Collector are perfectly consistent with an ignorance on the part of the land-owners of their rights I shall confirm my former decree and Order 6th defendant to pay the costs of plaintiff of the rehearing.
6. The same view was taken in A.S. No. 204 of 1881, District Court, South Malabar. This was a case from the Palghat Taluk.
7. The next case that may be referred to is the well-known Attapadi case Secretary of State v. Vira Rayan I.L.R. (1886) Mad. 175. That suit referred to a tract of land about 232 square miles in extent. A large block of land was not claimed by any of the defendants. There were lands, streams, hills and forests, which formed the upper part of the watershed of the Bhavani river. The question for decision was whether the rule that was presumed to be applicable to waste lands in the Eastern districts that they formed the property of the Government was also applicable to Malabar and it was held by the High Court that it did not. The decision proceeded on the grounds that Malabar was a land of private proprietors and the Government must prove their title and possession within the statutory period to recover possession. And there is no presumption of ownership in their favour of any property then in suit which included rivers and forests. The riparian proprietors were treated as owners of riverbeds lying within or adjoining their estates. It appears to me the question now in dispute is concluded by that decision.
8. The next case that I may refer to is Secretary of State for India v. Kadiri Kutty I.L.R. (1889) M. 369. I shall refer to it in some detail as the matter in dispute was raised in another form in that case and finally settled. There the question was whether a strip of land which had been reclaimed from the bed of a river belonged to the Government or not. The District Munsif held that according to the English law the land belonged to the plaintiff in that suit as a riparian proprietor. He was of opinion that, according to the Malabar law as declared in the case above referred to, i.e., the Attapadi case, the Government had no proprietary right over lands in Malabar and for that reason also it belonged to the plaintiff. He held further that according to the Hindu law also the right is acquired by the first person who makes a beneficial use of the soil and that the plaintiff having been in possession of the land, was entitled to it. He also decided that, though the Government had proved that since 1858 they had been invariably claiming lands formed by the recession of rivers throughout Malabar and that such claims had been acquiesced in, it was not sufficient to prove a valid custom.
9. In appeal the contention was 'that, by custom, they (i.e., accretions to a river bank) belong to Government', and the District Judge states that the Government had advanced their claim only during the previous 30 years and that it was not contended that such claim was advanced before that date. He held that it could not be treated as a valid custom and that ' in parts of India where Government has a right to all waste lands the question might be deserving of consideration, but, in Malabar where Government have admittedly no rights on waste land', the claim could not be supported.
10.The judgment in Second Appeal is reported in Secretary of State for India v. Kadiri Kutti I.L.R. (1889) M. 869. The High Court held that in the absence of local usage or statutory enactment to the contrary, the English law must be applied to India. According to that law it was pointed out that ' the Crown is regarded as owner of the land covered by the sea' and 'what is true with regard to the sea is equally true with regard to tidal navigable rivers' and that the land which was gained from the sea by sudden dereliction or alluvium or from the tidal navigable rivers also belonged to the Crown. It was pointed out that 'the rule referred to by the District Munsif according to which the riparian proprietors are entitled to the bed of the river, ad medium filum, is not applicable in the case of navigable rivers in which the tide flows and re-flows.' Then followed certain observations on totality and navigability. Then they said 'there seems no reason to doubt that the principles above indicated are the principles according to which the law must be administered in British India in the absence of local usage or statutory enactment to the contrary.' And one of the principles referred to is the right of the riparian proprietor to half the bed of the stream as under English law. It was also pointed out that the Judicial Committee had already applied the principles of English law to Indian cases. The principle that waste lands are not the property of Government was declared to have no application to land covered by the water of the sea or by a tidal river. Throughout the judgment the learned judges assume that the right of the crown can only exist in the case of tidal navigable rivers and they accordingly remitted issues to try the questions whether the river there in question was a tidal navigable river and also other questions which it is unnecessary now to refer. If the beds of rivers not tidal or navigable belonged to Government there would have been no necessity to remit the issues. The entire judgment leaves no room to doubt that the rules of English law as to riverbeds were applied in their entirety and the reason of the law too was stated. It was that the land covered by the water of the sea or a tidal river was not the land of the neighbouring jenmi when it remained covered with water. Unless we are prepared to hold that the rule of the English Law is to be applied only when it is in favour of the Government and not to be applied when it is against the Government it is difficult to hold that that decision does Hot conclude the matter now in dispute. It will be seen that the learned judges expressed no disapproval of the decision of the lower Courts which held that neither by the Common Law of Malabar, which was declared to be the same as the English Law, nor according to the custom set up by the Government they had any interest in the bed of the stream. But it was in accordance with the view that the English Law was applicable that they held that such law itself recognised a distinction in the case of tidal navigable rivers and that they sent down this issue. To my mind it is perfectly clear that the question before us is concluded by that decision. It is remarkable that the learned judges there did not refer to the earlier decision of Mr. Wigram which proceeded on the same view of the applicability of the. English Law and it is also noticeable that before the High Court there was no attempt to dispute the correctness of the proposition that the English Law in its entirety was applicable to Malabar. The authorities relied upon are English and Privy Council decisions which applied these principles to India. I think, therefore that, unless that decision is overruled by a Full Bench, the question cannot be decided in favour of the Government.
11. The next case that may be referred to is the judgment relied upon by the District Judge in A.S. No. 245 of 1894, District Court, South Malabar. The Munsif in disposing of the original suit found that the Government had proved a custom as to the ownership of riverbeds in the Taluq of Palghat. His judgment was confirmed in appeal. In disposing of the appeal, Mr. Justice Benson, then District Judge, stated the law in these words:
With regard to the second issue, it is admitted that the river in which the accretion occurred is not tidal or navigable, and that the right of Government to accretions depends on the proof of a valid custom, failing which the English Law would be applicable, and the accretions would belong to the riparian owners.
12. In considering the evidence he stated that he did not attach any importance to the action of the Government in respect of the dams and an cuts as it was quite possible that the Government might have a right to control and regulate the flow of the water without having a right to the bed of the stream. But he found that the evidence showed that for 33 years the Government had exercised these rights. That under the general law a riparian proprietor is the owner of half the bed of the stream in Malabar was not denied. The decision is only an authority on the question that a local custom against a general common law exists in the Taluq of Palghat.
13. It is unnecessary to consider whether that decision upholding a local custom in derogation of the general law will how be followed. The alleged custom was of recent origin. It was not shown to be uniform and there was a decision the other way. It is open to all the objections advanced by the Judicial Committee to a custom of impartibility confined to the Madras Presidency in the Pittapore case. The local custom presupposes that the general law applied to Palghat before its origin. The Government claimed and exercised their rights in river beds not in virtue of any local custom because Palghat land tenures are not alleged to differ from the rest of Malabar, but in accordance with what was erroneously asserted to be the general or customary law applicable to all Malabar. The instances therefore are not proof of any local custom.
14. The Judge next refers to the judgment in A.S. 500 of 1907 which came to the High Court in Second Appeal No. 377 of 1909. In that case the Subordinate Judge before whom the case came on appeal stated that the proposition which the Secretary of State put forward ' is no doubt extraordinary, but he is, entitled to get an opportunity to establish it if he can 'and he accordingly remitted an issue to try the general question whether by the usage of Malabar the beds of even non-tidal and non-navigable rivers and streams are vested in the Crown. In submitting the finding the Munsif states that though the issue referred to all rivers and streams 'the evidence was confined to such streams as flow through the lands of several jenmis and through several amshoms. Small streams are therefore now excluded from the claim by Government'. The suit related to lands in the Ernad Taluq and he found that the Government had been collecting jenmabhogam for 19 years. He also referred to the vagueness of the evidence which did not show the distinguishing characteristics of the rivers claimed by the Government. The Subordinate Judge in appeal found that the Government had been exercising rights of ownership in regard to such natural streams as ran for many miles and irrigated the lands of severali jenmis in several Amshoms, With reference to the ownership claimed he says that the nature of the stream, whether it is a river or whether it is only a ' thodu' as he calls, is a question of fact which must be decided upon the facts of each case and he accordingly upheld the Government claim. Here also it is to be noted that the claim of the Government as advanced was not a general claim to all river beds as now put forward but to what the Subordinate Judge calls rivers and large streams. In second appeal the decrees of the lower Courts were reversed on a preliminary ground so that the question of ownership was not decided by this Court.
15. There are no doubt observations in the judgment of the Subordinate Judge which support the Government claim and deny the right of riparian proprietors; they apply with equal force to similar claims of the Zamindars in India and of owners in England and in America. I am therefore not prepared to attach much weight to them.
16. The judge refers to the numerous instances proved in the Palghat suit. But they were all recent and the custom was challenged within thirty or forty years. The jenmabhogam was treated as revenue and could not be disputed in the Civil Courts. Payment of jenmabhogam is submission to necessity and not evidence of consciousness of validity of the claim. Resistance would have resulted in the imposition of penal assessment or revenue sale of property. Similarly purchase by riparian proprietors from Government is proof of evasion as pointed out by Parker J. in Secretary of State v. Ashtamurthi I.L.R. (1889) M. 89 and purchase of peace rather than recognition of Government claim.
17. It may be useful to notice the law on the point as understood before 1852 and the probable origin of the practice which is now sought to be converted into a valid custom, if not, as proof of the ancient customary law itself.
18. In 1800 Dr. Buchanan who was specially directed by the Governor-General to report on the condition of the District reported that the ' whole soil ' belonged to the private proprietors, i.e., Brahmin Nambudris, devasvoms and royal families, see Volume II, page 60.
19. The views of Major Walker who wrote the first book on Malabar Land Tenures as to jenm right is well-known. In the early years of the last century when the question whether the Zamindary settlement should be introduced into these districts was under discussion the officials were unanimous in reporting that ' in Malabar with the exception of a few estates forfeited by rebellion there appear to be no Sircar or Government lands, individual proprietary right generally prevailing throughout the province,' See paragraph 178 of the report of the Board of Revenue in 1809. (5th Report, Volume II, page 440).
20. In 1807, Mr. Thackeray who was deputed to enquire into the land tenures of Malabar also reported, 'Almost the whole of the land in Malabar, cultivated and uncultivated, is private property and held by jenmam right which conveys full absolute property in the soil.'
21. In a despatch in December 1813 relating to the settlement of Malabar the Directors similarly observed that in Malabar they had no property to confer with the exception of some forfeited estates--See Revenue Selection volume I, page 511. This was the basis of the Attapadi judgment. The same reasoning applies also to river beds.
22. Colonel Munro's report in 1817 is very instructive. He states that Malabar was divided into villages which were called Desams, that the headman was called the Desway when he had the direction of the religious ceremonies of the village pagoda and the management of the pagoda lands and servants and that otherwise he was called jenmi. He further says that the Desways '' were at one time the sole proprietors of the land of their respective villages... There was a Desway to every village, except where the village was the private property of the Chief of the district...when the rights of the head of the village belonged ' to that chief. He gives the sources of income. (See paragraph 5). He had no proprietary interest whatever of the sort that is now set up on behalf of the Government.
23. The Collector, Mr. Conolly, in a memorandum drawn up for the Government in 1840 stated that 'all land in Malabar is strictly private property. 'See his letter to Government, dated 8th October 1853, No. 34B, Judicial Department--enclosure to minutes of consultation under date 15th November 1853, Judicial Deparment. Till 1850 no attempt was made to claim ownership in river beds. In 1852 Mr. Strange was appointed Special Commissioner to enquire into the Moplah outrages and there was a long correspondence relating to land tenures which made it difficult for moplas and poor persons to get lands for cultivation on fair terms. It therefore became the object of Government to restrict within such limits as the law would allow them the extensive claims which were put forward on behalf of the jenmi in order to assign lands to Moplahs and other persons to evade the jenmi tyranny and they began to show increased activity in allotting waste lands which belonged to jenmis to any person who applied to take them up by virtue of a supposed right of the Government, now declared to be non-existent. They also began to assert their claims to assign river beds and accretions from the rivers; and we find from that time till about 1877 such rights were asserted in various instances. In 1877 when the matter was brought before Mr. Wigram in South Malabar he disallowed the Government claim on the ground that it was opposed both to the English law and to the customary law of the country. On the same ground Mr. Cox disallowed it in North Malabar. I am not aware that, from that time, any judicial officer has recognised the general claim of the Government that is now recognised by the District Judge. To me it is clear that a practice, which sprung up only after 1850, disallowed in a judgment in 1877 in which all the available evidence was apparently given, and contested whenever set up in a Court of law afterwards, cannot now be held to be a valid custom. They can only be treated as unauthorized interferences with private property. The evidence of the so-called custom to grant jenmis' lands on cowle was stronger in Secretary of State v. Kadiri Kutti I.L.R. (1889) M 369 and derived some support from the ancient Malabar law as to waste lands. Yet it was not upheld. Here the principles of the Malabar Land Tenures negative the claim advanced on behalf of Government. The theory is that the land was the property of the Nambudris and the Devasoms. The fact that before the Mysore invasion no land tax was paid is due to this fact. The Royal families and the local chieftains also acquired jenm, and later all classes, but they claimed the same completeness of ownership as the Brahmins. Jenm deeds may be found in the old books and reports and in Logan's Malabar Manual volume II. They purport to sell the entire land in within defined boundaries including stones good or bad stumps of nuxvomica, thorn, roots, pits, mounds, treasure, lower earth, water, ores, canals, streams, forests. They prove an ownership as complete as possible, In England the theory is that the land is held directly or indirectly under the Crown. In India, the Zamindars hold them under Government sanads. Yet they have got the rights that are held to appertain to riparian proprietorship stronger reasons exist for recognising them in favour of jenmis. Many streams and channels are dry for months and are capable of actual occupation or cultivation their beds are often cultivated. I have no hesitation in disallowing this contention and in holding that the channel is private property, If the river bed is private property then Act III of 1905 has admittedly no application.
24. It is stated that no claim has been advanced by any jenmi to his thou. But it is not shown that any claim was on any occasion advanced by Government to the knowledge of Kiyake Kovilagam the only riparian proprietor whose name appears in the records. That the tenant obtained permission to put up dams is no evidence against the jenmi. Moreover such permission was necessary to flood the path. It may be as Mr. Benson pointed out in the Palghat case this erection of a dam is not any evidence in support of Government. I offer no opinion on this point. I hold therefore that the thodu or watercourse in question is private property.
25. The plaintiff has proved user for 25 or 30 years. She has acquired the right to construct the dam. The Government pleader contends that she cannot acquire any easement against her own Jenmi. But it is admitted that there is no evidence that her Jenmi is the riparian proprietor where the dam is constructed. It is probable he is the jenmi on one side of the channel. But there is no evidence of it and if he is the jenmi the plaintiff would be entitled to do it with his consent and as there is no evidence who the riparian proprietors are on either side of the dam, I would declare her right to construct a dam.
26. But if she wishes to construct a dam of the kind she has been putting up in recent years, she must show that she is entitled to flood the path. The channel being private property it is true the surface of the path alone can be presumed to have, been dedicated to the public. But the plaintiff cannot claim to have acquired the ; right claimed by prescription against the Crown representing the public as she has not proved 60 years user as of right of the right claimed. Even the user proved by her was with the consent of the Revenue Officials and therefore not evidence in support of the claim of easement against Government. She has not shown that the path was dedicated subject to her claim, as it is not proved that the dedication of the path was subsequent to the date of the first erection of the dam.
27. The plaintiff can therefore only erect a dam, which would not interfere with the use of the path.
28. This was the only condition sought to be imposed by the Revenue officials though subsequently higher claims were advanced.
29. I might add that the Government Pleader's contention that these questions do not arise on the allegations in the plaint and in the absence of the jenmis, comes too late. It is concluded by the two previous orders of this Court. The Government did not apply to make the jenmis parties, or if the objection had been raised earlier, either the plaintiff might have made them parties or the Court might have directed it to be done.
30. I would therefore modify the decrees of the Courts below by declaring the plaintiff's claim as above indicated and confirm the decrees in other respects the parties to bear their own costs throughout.
31. But as my learned brother disagrees with me the second appeal is dismissed with costs.
Sadasiva Aiyar, J.
32. I have had the great advantage of a study of the judgment written by my learned brother in this case, I regret, however, that my conclusion is somewhat different from his.
33. As I read the plaint, this is a suit for two reliefs (1) for the declaration of 'the plaintiff's easement rights to put up a dam in the Kottamal Todu and taking water from it in accordance with the ancient usage for the use of the cultivation of the plaint lands;' (2) for past and future damages consequent on the Collector's alleged wrongful acts,...directions and threats. Now an easement is 'a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done in or upon, or in respect of certain other land not his own.' (See the definition in Section 4 of the Easements Act). At the first blush, the plaint seemed to admit (that is, a perusal of the plaint leaves the impression in the mind that it impliedly admitted) that the bed of the thodu over which the plaintiff wanted to establish her right to build a dam on belonged to the only defendant in the case, namely, the Secretary of State, and that the plaintiff wanted a declaration of her easement right to put up a dam on that bed belonging to the defendant. But the plaintiff seems to have contended before a Division Bench of this Court in S.A. No. 606 of 1907 that she did not mean to make any such admission that the bed of the thodu or the thodu belonged to the Government. This contention was accepted by the learned Judges who heard the said S.A. No. 606 of 1907 and the case was remanded to the Lower Appellate Court for fresh disposal.
34. Now it seems to me that if the plaintiff wanted to have a declaration of her easement right over the land of a third person and if that third person was not the defendant in the suit, she ought to inform the court who the third person was (other than the defendant) who was the owner of the land over which the plaintiff claims the easement right. Even after a second remand, the plaintiff would not clearly state to whom the bed of the stream belonged over which she wants to erect the dam. The contention before the District Judge seems to have been that the todu is private jenm property and that the bed of the stream belongs to the jenmis who own lands on either side of the todu. Assuming that half the breadth of the beds measured from one bank at the point where the dam is sought to be put up belongs to the jenmi who owns the lands on that bank and the other half breadth to the jenmi who owns the lands on the other bank, who are these two jenmis? One of the jenmis seems to be the plaintiffs own landlord against whom, she cannot claim any right of easement. The other jenmi's name is not disclosed. As against that undisclosed jenmi the plaintiff can establish an easement right only if she proves by suitable evidence that either by grant or by prescription (that is, by peaceable and open enjoyment as an easement and as of right without interruption for 20 years) she has acquired the easement right claimed by her. It seems to me clear that that undisclosed jenmi is a necessary party to a suit for a declaration of such an easement right, so that he might have an opportunity of showing that he made no such grants as is claimed by the plaintiff (if a grant is claimed by the plaintiff) or that the plaintiff did not erect the dam as of right but by license or that there has been interruption or even that she never erected any such dam except in recent years. In short, there is no evidence in this case which can be treated as legally establishing an easement right over the bed of the stream at the site of the dam as against the owners of that bed, assuming that the bed of the stream belongs to the jenmis (private owners), and not to the Government, On this short ground, I would dismiss the suit especially as the grant of a declaratory relief is a matter of discretion.
35. Even taking the view that the plaintiff has a right of easement to construct a dam over that portion of the bed of the stream over which she has been constructing a dam hitherto, but that she is not entitled to flood the path higher up (which, if I understand my learned brother aright, is the view taken by him), it is clear as my learned brother points out that the plaintiff's right of easement is not as extensive as the claims in the plaint but only a more restricted right, that is, the right is subject to the onerous condition that she should not interfere with the use of the path by the public. Even in this view, it seems to me, that her suit for a declaration of the comprehensive right claimed by her ought to be dismissed as the Court is entitled to exercise a discretion in these matters and it is not bound to give a declaration of the qualified right even holding that that qualified right is proved by the plaintiff. On the above views, it is unnecessary to go into the difficult question of law discussed by my learned brother as to the right of the Government to the beds of streams in Malabar and to the sites of public pathways in Malabar. I might, however, be permitted to say that I am not satisfied that the beds of natural streams and the sites of public paths even in Malabar do not belong to the Government as a rule. As regards waste lands strictly so called, (that is, uncultivated waste, capable of cultivation or of afforestation or mineral working etc.), we may take it that the Secretary of State v. Vira Rayan I.L.R. (1885) M.175 has settled that 'there is no presumption in favour of Government's rights so far as the Malabar Districts are concerned,' But, as Lord Halsbury said, the decision in a particular case is an authority only for the points actually decided in that case, that is, those points necessary for the decision of the case and I am not satisfied that Secretary of State v. Vira Rayan I.L.R. (1885) Mad. 175 decided that there is no presumption that the beds of natural streams or sites of public paths do not belong to Government I am inclined to the view that the Government as representing the public should be presumed to be the owners of the beds of natural streams and of the sites of public paths in Malabar as well as in other Districts and I believe that that is the common law of India whatever may be the common law in England or whatever may have been the Roman law on this point. Malabar might have been 'a land of private proprietors' but the paramount rights of the State over the beds of natural streams (which do not both have their origin and also flow till the end of their course continuously through the land of the same private owner) and the paramount rights of the State over the sites of public roads and paths are not inconsistent with Malabar being a land of private proprietors, that is, of being a land in which all cultivated lands, cultivable waste lands, house-sites, residential sites, lands from which profits can be obtained in the shape of forests or mineral products and similar lands belonged to private proprietors at one time and presumably and prima facie do not belong to Government now. That the Government have been trying to contest the claims of jenmis over waste lands from several years even before Act III of 1905 was passed cannot be disputed. So far as public roads, streets, lanes and paths and the beds of rivers, streams, nalas, lakes and tanks, canals and water courses are concerned, the presumption should be, after the date of Act III of 1905, that they are Government property and not private property (see Section 2 of the Madras Act III of 1905). If any private owner wishes to establish that the bed of a natural stream or the site of a public road belongs to him, it seems to me that the burden of proof is clearly cast upon him to establish the same, (see Kundukurl Mahalakshmamma Garu v. Secretary of State for India I.L.R. (1910) Mad. 295. 20 M.L.J. 823.) after Act III of 1905 was enacted. In this case, no such proof has been given. As regards the case in Secretary of State for India v. Kadiri Kutty I.L.R. (1889) M. 369 the only thing decided there was that even in Malabar the bed of a tidal navigable river does belong to the Government. It may be said that there are implied assumptions made in some of the sentences in that Judgment that if a river is not a tidal navigable river, the bed belongs to adjacent owners as in English Common Law, and that the breadth of the stream belongs half and half to the adjacent owners. But this implied obiter dictum cannot, in my opinion, be treated as even an authority binding on us, much less a conclusive authority, especially after the passing of the Madras Act III of 1905. However, as I said, the question is not free from difficulty and I do not wish to express my final view on that question especially in view of the decided opinion to the contrary expressed by my learned brother. In this particular case, as I said before, it is unnecessary to finally consider that question. Lastly I am unable to get over the finding of fact in this case by the District Judge that the bed of the stream belongs to the Government. He bases his finding on six facts: (a) that no claim has been made by any jenmi to the todu; (b) that the defence 1st witness proves that the stream in question takes its rise in the hills, flows for 12 or 15 miles through several amsoms and is known as 'the Government sircar todu;' (c) that it is entered in the Settlement Register as the jenmam property of Government; (d) that permission was obtained by the plaintiff from the defendant (that is, the revenue officers) to dam the todu; (e) that there is the presumption under Section 2 of Act III of 1905 that the bed of the stream is sircar land; (f) that there is also a decision in A.S. No. 245 of 1894 of the District Court of Calicut establishing Government's rights. Even taking it that the last two reasons given by the District Judge for his finding are unsound, there are the other four facts and circumstances mentioned by the District Judge to support his finding and though each on of the facts taken separately may not be sufficient to support the finding it cannot be said that a Court is not justified in treating the title of Government to the todu to be proved by those facts taken together. Because the District Judge relied also upon a doubtful presumption of law to arrive at his finding, it cannot be said that his finding of fact is so materially vitiated that it should be set aside in second appeal. As Mr. Justice Tyabji remarked in a recent case (S.A. No. 1429 of 1911) 'Courts are not expected merely, so to say, weigh in balances of gold the evidence on one side or the other and if the scales go down by a hair's breadth on one side or the other, they are not expected to proceed on the basis that that fact is proved for all purposes.' As the District Judge did not merely act upon a presumption in favour of the rights of Government but relied also upon other circumstances to find in favour of Government, I think that we are not entitled to interfere with his finding of fact (that the todu belongs to Government) in Second Appeal. In the result, I would dismiss the appeal with costs.