John Wallis, C.J.
1. The question referred to us is, whether in a mirasi village the mirasidar is entitled to recover possession of a house site held under a patta from Government; and, to show what it involves, it may be well to state at once the circumstances in which it arises in the case under appeal. On the 16th' November 1894 Mr. George Stuart Forbes, Acting Collector of Chingleput, passed orders on certain petitions praying for an extension of the cheri nattam, or part of the village site reserved for pariahs, in the village of Mannur in the Saidapet Taluk not far from Madras. He began by observing that out of the whole Survey No. 14A of 23 acres which was classed as village site, 97 cents, or nearly one acre, identical with Survey No 45 in the paimash or old survey, was shown in the paimash account as 'Cherial Pizhakkadai' or reserved for pariahs. There had, he went on to say, been no erection on this site by any mirasidar since the date of the paimash (apparently about 1845) and the only building on it was an arrack shop. He did not interfere with this, but stated that the rest of the plot was available for sites in extension of the paracheri or pariahs' quarters, and directed it to be laid out in streets and house sites in such a manner as to facilitate sanitation and the convenience of the residents. As regards any claims from mirasidars, ho merely observed that 'the short usurpation by the mirasidars in recent times which is supported by the entry in the Adangal of 'Seshachellam Chetty (plaintiff) and others', is invalid and cannot be recognized.' The Adangal (Exhibit G) is described as the village account of lands held in the village according to Survey numbers. The paimash register only contained the names of actual occupiers of sites in the nattam, as appears from Exhibit X, but in 1886 it came to light that at some time or other the names of the mirasidars had been inserted in the Adangal as well the names of the actual occupiers which alone appeared in the paimash register, and had also been inserted as owners of the unoccupied sites as regards which no names appeared in the paimash register; and this was apparently what Mr. Forbes was alluding to in speaking of the recent usurpation. Exhibits I to VIII are applications for sites put in immediately after the Collector's order by residents in the paracheri which, the endorsements show, were granted or refused according to the merits. This was in 1894 and early in 1895, and the present suit was not brought until January 1905 ten years later. The plaint alleges that the plot was the property of the plaintiffs and that they constructed and rented to the 13th defendant a leaf-roofed shop marked B in the annexed plan; that the defendants on 17-10-1903 took wrongful possession of the plot and erected the shed marked C; and that defendants 1 to 12 with the 13th defendant afterwards dismantled the shop B and erected the sheds D and E. Defendants 1 to 12 pleaded that the site was not the property of the plaintiffs but of Government who had granted the sites thereon. They alleged that the buildings C (a mission hall) and E (a sundries bazaar) had always been in existence and that D bad been erected three or four months previously as the shop B was in a ruined state. The 13th defendant pleaded that he was only a servant of the owner of the toddy shop, and the latter was added as 14th defendant but remained ex parte. The District Munsif at first dismissed the suit on the ground that the Secretary of State in Council was not a party, but on appeal the plaintiffs undertook to make him a party, and this having been done, the Collector filed a written statement on his behalf as 15th defendant in which he alleged that the plaintiffs have not and never had any title to the property, and never occupied it in a manner inconsistent with the rights of Government, and that Government had exercised rights of ownership over it to the knowledge of the mirasidars, The entries in the village accounts for some years by officers who were themselves mirasidars were, it was alleged, only paper entries and did not affect the proprietary right of Government. In his judgment the District Muusif observed that in the Settlement Register Exhibit E (1875) the names of the 1st plaintiff and the other mirasidars were not entered against Survey No. 14A, the village site, and thenceforward they had never taken any steps to assort the right to the land and have it included in their pangu lands. The District Judge took the same view and observed that the plaintiffs had never cultivated the land, and had put up the thatched hut B in 1902 long after Government had assigned the sites. They accordingly dismissed the suit but held it was not barred as it was instituted within 12 years of the grants made under Mr. Forbes's orders at the end of 1894. The result of the findings would therefore appear to be that the site in question was waste land over which the plaintiffs never exercised any rights of ownership until some years after it had been allotted by Government in extension of the cheri or pariah's quarters.
2. The Privy Council have very recently pointed out in Secretary of State for India v. Bai Rajbai (1915) L.R. 42 IndAp 229 that, as regards lauds such as these which have been ceded by native rulers, the only enforceable rights are those conferred by the Crown by express or implied agreement or by legislation; but in order rightly to appreciate the action of the Crown or Government, it is necessary to know something of the preexisting state of things. We have not been referred to any critical discussion of the legendary settlement, of Thondamandalam, as this part of the country was called, by 300,000 Vollalas from the west coast of India which is referred to in the judgment of Sankaran Nair, J., and had been dismissed as fabulous by Sir Thomas Munro in his well-known minute. What we do know is that this District was the seat of an ancient civilisation, and that Kanchi or Conjeevaram was the capital of the Pallava dynasty who flourished until their overthrow by the Cholas about the end of the 9th century; and that it was afterwards one of the principal cities in the Chola kingdom, which again was absorbed in the Vijianagar Empire in the 15th century. That Empire had fallen into decay, when in the middle of the 17th century one of its nominal dependents granted the East India Company four mirasi villages on which Fort St. George, and tho adjoining White and Black Towns, as they were then called, were erected. To these was added some years later, the Shrotriem Village of Triplicane; and after the advent of the Mahomedans three more mirasi villages which are now included in the Municipal limits of Madras were granted in 1694 during the reign of Aurangazib. Further grants were made early in the 18th century of villages with what are now within the Municipal limits and beyond; and finally the whole District of Chingleput as it now is was assigned by the Nabob of Carnatic to the Company in return for their services against his enemies and became known as the Jaghir. It was subsequently laid waste by Hyder in his invasion of the Carnatic, and it was only some years after 1784 when peace wa3 restored that the question with which we are now concerned came to the front in connection with the proposed introduction of a permanent settlement on the lines on which Lord Cornwallis had carried out the Permanent Settlement of Bengal, and it became necessary to investigate the position and rights of the mirasidars in relation to the land. If they were the real owners of the land it could not be parcelled out among Zamindars under Regulation XXV of 1802 which reproduced the Bengal Regulation of 1793; and later, when the idea of a permanent settlement was given up and the system, of ryotwari settlement with the individual cultivator was coming into favour, this alleged ownership of the mirasidars was again an obstacle to the introduction of settlements with the actual cultivators. The result of the controversy in the early years of last century was that the settlement was made with the mirasidars and not with Zemindars or with the actual cultivators; but many questions such as those with which we are dealing were left outstanding and, lapse of time has not made it any easier to settle them in spite of the lengthy discussions which are to be found in the Mirasi Papers which go down to 1864 and in the further papers which have been specially printed for this case.
3. It is unnecessary to go into old controversies as to ownership of land in India as to whether, as has been sometimes held, the State was the owner of all land which it had not actually alienated and the cultivators were merely tenants under it, or whether the cultivators are the owners subject to the right of the State to share in the produce or whether, as James Mill thought, (Fifth Report Ed. Higginbotham page 816), Government and the cultivators should be regarded as 'joint tenants' by which he probably meant co-owners. In 1796 Mirasi 26 the Madras Government went so far as to assert it to be the great feature in all the Governments of India that the Sovereign is the Lord of the soil. As regards waste lands at any rate it seems clear, as held in The Secretary of State for India v. M. Krishnayya I.L.R. (1905) Mad. 257 that by the Mahomedans waste lands in conquered countries were always held to be the property of the State. It may be taken then that the principle to start with generally is that in India waste or unoccupied lands at any rate belong to the State, and the Madras Legislature has in Madras Act III of 1905, which is modelled on Bombay Act V of 1879, given statutory force to this rule which had previously been held applicable to lands of this character.
4. The question then is, whether unoccupied lands in mirasi villages in this District, and more especially the unoccupied lands set apart for house sites in the villages, form an exception to the general rule and were recognised as private property when or after the British Government succeeded to the previous rulers. The distinctive thing about the District is the persistence until very recent times of the system of joint cultivation of the village lands by the village community of mirasidars, the actual cultivation being done by a dependent population working under them. This is a stage of agricultural development through which various peoples have passed and of which traces are to be found in England, Germany and Russia, both European and Asiatic, and even in Japan. (See Lewinski's Origin of Property, London, Constable and Co. 1913), but it by no-means necessarily connotes the ownership by the cultivators of the adjoining waste or unoccupied lands, or implies that the cultivators have greater rights in respect to them than inhabitants of other villages in the neighbourhood where the system does not prevail as was pointed by Sir Thomas Munro. The right of the State to admit cultivators to uncultivated land for the purpose of realizing its revenue which is a necessary incident of the immemorial revenue system and is recognized in the recently published Arthasastra of Kautilya dating from 300 B.C, Bk. 2, C. 1, Section 47 necessarily involves the right of the State to provide such cultivators with sites as the nuttam. Nor is it a necessary inference that the village community owned all the land within the boundaries of the village, for as observed by Mr. Hodgson in the Report on the Survey of Dindigul (1) note (Fifth Report : Ed. Higginbotham Co. at page 607) 'the whole lands of a province in India whether cultivable, arable, waste, jungle or hills have been from time immemorial apportioned to a particular village so that all lands are within the known boundaries of some village. The total area of all villages forms the whole landed surface of that particular province. And there is satisfactory evidence, as appears from Mr. S. Krishnaswami Aiyangar's Ancient India and Mr. Vincent Smith's Early History of India 3rd Edition 1913, that under the Cholas the lands and cultivation were carefully surveyed and holding registered at least a century before our Domes day Survey.
5. It is perhaps hardly safe to make any positive assertion about the ownership of the nattam and other unoccupied lands in periods so remote as to which the evidence is so scanty, but the great irrigation works and temples which have come down to us from this period and were probably produced by forced labour point to active intervention and control by the State and do not support the conclusion that the village cultivators whether cultivating jointly or individually were regarded as the owners of land which they had not reclaimed to cultivation in the absence of evidence of user or recognition.
6. As evidence of recognition it is said by Sankariah in the Mirasi Papers that former rulers were in the habit of purchasing lands from the villagers to present them to temples and in the three volumes of Dr. Hultzsch's South Indian Inscriptions there are inscriptions nearly a thousand years old that appear to bear this out, but it does not appear that the lands so acquired were waste.
7. Nor is such a view supported by what we know of the history of the mirasi villages now included in the municipal limits of Madras which, as already mentioned, were acquired in the 17th century and the years immediately following long before the present controversy arose. The three bulky volumes, recently brought out by Col. Love for the Government of India under the title of 'Vestiges of Old Madras', contain a digest of all that is to be found in the records about the city from its foundation down to the end of the 18th century; and it is remarkable that they do not appear to support the claim of the mirasidars to the waste lands of the villages. Such references as there are seem to show that the Madras Government treated all waste lands as at its disposal and the claim would appear not to have been disputed. See Vol. I pp. 170, 579 - 80, Vol. II p. 127 and pp. 193 an 194. In Vol. II p. 505 under the year 1763 we find mention of numerous leases granted by the Company of large areas for the erection of the garden houses that form a feature of-the city; and Mr. Ellis' answer in the Mirasi Papers to the 9th question put to him suggests that, when he wrote in 1814, a great part of the village lands had been converted into gardens in this way; and in the suit in the Supreme Court in 1808, which will be referred to later, Sir Thomas Strange C.J. stated that the only cases as regards mirasi villages which came before the Mayor's Court in the 18th century dealt with another question.
8. The fact relied on by Sankaran Nair J. that in the conveyances of the 18th and early 19th centuries which are collected in the Mirasi Papers the transferor purports to convey not only his cultivable lands but also all his rights in the nuttam and the waste lands which had not been divided and in fact deals with them as the subject of co-ownership is of course to be considered, but as against the State which was the other party interested such claims appear not to be entitled to much weight except in so far as they are supported by actual user or recognition.
9. Coming now to the views expressed by Mr. Place and later by Mr. Ellis, Collector of Madras, and his Sheristadar Sankariah in answer to the questions put by the Board of Revenue in 1814 (Mirasi Papers 155), though they were no doubt well warranted in championing the mirasidars and asserting their proprietary interests against proposals to ignore them either in favour of Zemindars or of the actual cultivators, it by no means follows that the mirasidars were the owners of the waste lands in the village as well as of the lands they had reclaimed to cultivation. Sankariah, a successful official of those days, who, as was pointed out by my learned brother in the course of the argument was almost certainly a mirasidar himself, no doubt says distinctly that they owned the waste, but Mr. Ellis speaks only to a restricted right of user falling short of full ownership.
10. Eventually even as regards cultivable waste the mirasidars' ownership has not been fully established and though they had*and still have a preferential right to such lands, yet on failure to cultivate them they are liable to have cultivators put in by Government. Mr. Ellis and Sankariah no doubt claim that they were entitled to be restored within 105 years on making compensation, but that claim has not been substantiated. No doubt their claim to receive swatantrams, or payments from the newly admitted cultivators, is evidence of their claim to ownership of the waste which they had reclaimed to cultivation; but, according to the decision of the Full Bench in Sakkaji Rau v. Latchmana Gaundan I.L.R. (1880) Mad. 149 such swatantrams are not generally payable but only on proof of custom. Further Mr. Ellis' views have never won complete acceptance. In 1822 Mirasi 423 the Court of Directors found fault with the Madras Government for having printed and circulated to the service the, answers of Mr. Ellis, as a question of this kind should be decided not upon one man's opinions alone but upon a consideration of all the evidence which could be obtained. They considered the course adopted would to a great degree have the effect of imposing upon the service the opinions of Mr. Ellis as the authoritative conclusion of Government. The Government in reply disclaimed any such intention, and we find the Board of Revenue treating the question of the extent of the mirasidars' rights in waste lands as an open one and framing a fresh series of questions for Collectors on the subject (Mirasi Papers 427) on the 11th December 1823. The Government of Sir Thomas Munro did not pass any orders on these proceedings so that fresh queries were never sent to Collectors; and on 31-12-1824 Sir Thomas Munro wrote his well-known Minute on 'the state of the country and the condition of the people in which speaking with his wide experience gained by him as a settlement officer in various districts of Southern India as to the system prevailing under the Vijianagar and Mahomedan rulers he incidentally contested nearly all Mr. Ellis' opinions and conclusions. Selections from the Minutes of Sir Thomas Munro, (Ed. Arbuthnot, Madras. Ed. Higginbotham, 1886, p. 228.) The question discussed by Sir Thomas Munro no doubt related to the cultivable waste rather than to waste which was excluded from cultivation either as unfit or as reserved for other purposes; but there can be no doubt that he would have expressed himself as strongly as regards the ownership of waste excluded from cultivation.
11. The paimash survey and accounts of the District appear from the District Manual to date from the years immediately following, and the extract from the paimash accounts (Exhibit X.) exhibited in this ease and dating it is said from 1845 shows that, while the name of the owner is given in the case of each occupied site in the nattam, no name is entered against the unoccupied portions, which goes to show that the private ownership of the unoccupied nattam was not then recognized. In 1839 the Board (Mirasi Papers, 452) expressed the opinion 'that as regards immemorial waste the rights of the mirasidars are confined to the pasturing of their cattle, the cutting of firewood etc., and similar common privileges, but these must always give way to any proposition ensuring the extension and realisation of the public revenue.' The passage is important as it was cited by the Full Bench in Sakkaji Ram v. Latchmana Gounden I.L.R. (1876) M. 149 and adopted as laying down the true rule in Sivanatha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371.
12. We are not however immediately concerned in this case with the general question of the ownership of waste lands but with the ownership of part of the village nattam or village site. The nattam or area reserved for house sites is a feature of every village, zamindari, ryotwari and mirasi alike, and consists of unassessed land set apart for the erection of houses and for the adjoining backyards. In Dr. Hultzsch's South Indian Inscriptions, Vol. II, pt. 1, No. 4, we find the ur-nattam and paracheri, or pariahs' quarters, enumerated with tanks and burying grounds as free from assessment, and there are other inscriptions of the same kind showing that a portion of the site was set apart for pariahs or untouchables from very early times. So far as the inscriptions enable us to judge, the affairs of the village appear to have been managed by sabhas or assemblies of leading men in the village who were probably left to allot house sites as the occasion arose without iterference. Such a power of allotment would not connote ownership, but might of coarse give rise to it if it led to the sites being dealt with as private property and sold or leased as such.
13. As regards waste lands generally the Mirasi Papers contain discussions as to whether the mirasidars were entitled to compensation for waste lands acquired for public purposes, and that such claims were in some instances admitted appears not only from the instances given but also from the fact mentioned in the Chingleput District Manual and also by Mr. Stuart in his Report in 1909 that Government in 1870 decided to refuse any longer to pay compensation for such lands. The case which subsequently came before Sir Charles Turner will be considered later. As regards the nattam itself in 1856 (Mirasi Papers, 538, 553) the question was the subject of a strong divergence of views between the Board of Revenue and the Government of the day which favoured the mirasidars' claims and went so far as to dispossess in his favour a stranger whom the mirasidar had sued unsuccessfully in the Civil Courts. The papers were sent home, but the Court of Directors in their reply did not commit themselves to one view or the other.
14. In 1869 Government framed Dharkast rules (as to applications for grants of land) in the District in which the prior claims of the mirasidars were recognised. Rule 13 however provided that tanks, threshing floors, burying grounds etc., should not be given away on dharkast and concluded 'applications for gramanattam or village sites shall not be entertained.' In 1872 as appears from G.O. dated 16th December 1872 No. 1684, the Board called for returns from Collectors as to the practice in their districts of giving gramanattam land as house-sites to persons who were neither pattadars nor actual cultivators; and the answer from Chingleput was it was granted to all applicants on a fixed scale. This goes to show that the mirasidars were, to say the least, not then very conscious of their rights now claimed for them. Commenting on the answers returned, the Board put forward the view that the gramanattam in villages is the communal property of the villagers, a position which may be taken up with regard to non-mirasi as well as to mirasi villages. But the Government of the day were not prepared to go so far, as they were of opinion that the old hookamnamahs showed that enjoyment of the gramanattam was subject to regulation by Government. These hookamnamahs no doubt related to non-mirasi villages, for as already observed, whatever the ownership of the nattam, the mirasidars were probably left to allot sites in the nattam according to requirements and this was probably not interfered with by the Mahomedan rulers who generally rented the villages to the mirasidars themselves at a fixed rental, except in so far as they may have granted villages in inam. The District Manual contains'a long list of inams, but there are no particulars of the dates or terms of the grants. In passing orders on this occasion asserting the title of Government in the nattam in ordinary villages Government made an exception in favour of purely mirasi villages where they said 'the gramanattam no doubt appertains to the mirasidars equally with the other poramboke.' Accordingly they issued rules on the subject excepting Zemindari and mirasi villages and villages which were private properly, although the Collector's answer showed that the grants of nattam had been made by Government without opposition in Chingleput. Two years later however when the settlement of Chingleput was effected an entry was made in the settlement register of each village (cf. Exhibit E) that in the gramanattam no new enclosure was to be made or new building erected without permission in future, which shows that the nattam was not then treated as completely at the disposal of the mirasidars. The G.O. dated 18th August 1886 No. 724 Rev. contains a Board's proceeding rejecting the claim of the mirasidars to control the cherinattam in which the claims of the mirasidars are vigorously attacked on much the same grounds as have been urged before us, and Government did not interfere with the Board's decision but recorded the proceedings without remark. In 1890 Government followed this up by directing that in the Adangal accounts, where in addition to the name of the occupier the name of the mirasidar was found, it should no longer be recorded. The paimash register Exhibit X in this case only gives the names of the owners of sites in actual occupation and does not show any owner against No. 45 the suit land but merely describes it as the backyard of the cherimen. At some subsequent period the names of the mirasidars were entered as owners in the Adangal account, not only of unoccupied sites like this, but also of the occupied sites. It was alleged that this had been done surreptitiously to create evidence of ownership and the mirasidars names were struck out in cases where there was an occupier, but apparently were left in when the site was unoccupied. In these circumstances I cannot give the entries in the Adangal accounts the weight that might otherwise attach to them. The question came up again in 1892 when Government expressed them selves more guardedly observing 'the question of the ownership of pariah house-sites is one of legal right and if the mirasidars have it they can only be expropriated by compensation.' Lastly we have the report of the Special Settlement Officer Mr. Stuart in G.O. 2868 dated 19-10-1909 which shows that where the mirasi right is in the hands of a few, the claim to the village site is still often kept alive and used for the purpose of keeping the rest of the population in subject ion, and that in other cases no attempt is made to enforce it.
15. Coming now to the decisions of the Courts - the judgment of Sir Thomas Strange in 1808 in the Thondiarpet base (Mirasi Papers, 127) shows that the right of the mirasidars to the village site was proved in that case by abundant oral evidence to the satisfaction of the Chief Justice who however observed that it did not appear and was not material in which respect, if any, the mirasidars were subject to the intervention of Government except for the sircar share. The principle which was laid down and on which the judgment proceeded was that the nature of mirasi right was to be ascertained by user; and that still appears to me to be the governing test. In 1841 (Mirasi Papers, 462) we have the judgment of Mr. Lewin in the Provincial Court of Chingle-put in a suit to which Government was a party and did not appeal, in which as to cultivable waste the law was taken from Mr. Ellis' answers and Government were held to have no right to issue cowles of lands in mirasi villages which the mirasidars were willing to cultivate. This does not really amount to more than a recognition of the mirasidars' preferential right to cultivate, and must now be read with the subsequent Full Bench decision in Sakkaji Row v. Latchmana Goundan I.L.R. (1876) Mad. 149. The judgment in 1849 of Rudder Adalut in Special Appeal No. 108 of 1844 (Mirasi Papers, 486) is more directly in point as it recognised the mirasidars as the hereditary proprietors of the soil including the nattam, and laid down that if a purakudi ceased to cultivate he became a casawargam and liable to pay rent for his backyard to the mirasidar who clearly had the right of ejection. The judgment in Special Appeal No. 186 of 1859 (Mirasi Papers, 585) was also a suit in which the mirasidar was held entitled to evict the casawargam tenant from a house-site which had been in his occupation for a great number of years on paying compensation for the buildings ho had suffered the defendants to construct and occupy. The fact that these two cases are from Kumbakonam does not detract from their weight, as the rights of the mirasidar were fuller in Chingleput than in Tanjore. Coming now to the year 1882, in that year Sir Charles Turner, C.J., in a suit to which Government was a party upheld the right of the mirasidars to compensation for a piece of waste land in the village of Vyasarpadi on the authority of Mr. Ellis and Mr. Sankariah, and there was no appeal from his decision. There was also a decree of the District Munsif of Trivellore in O.S. No. 31 of 1894 in which the right of the mirasidar to the nuttam was asserted though it was at the same time held that the mirasidar was liable to be assessed for cultivation on the nuttam. There was no appeal, and the papers suggest that Government was not anxious to bring the question before the higher Courts in the hope apparently that the mirasidars' claims would die out of themselves. In Sivanatha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371 Davies and Benson, JJ., in Second Appeal refused to interfere with the finding of the Lower Courts that the Shrotriemdar in that case, who stood in the place of Government, and not the mirasidars of the village, were entitled to the compensation for a piece of waste land in a mirasi village compulsorily acquired. There was evidence of user in the particular case, but the learned Judges laid down generally that 'the rights of the mirasidars over immemorial waste (apart from their preferential right to cultivate) appear to be confined to grazing, cutting firewood and similar common privileges as stated by the Board of Revenue in 1839 in the passage already quoted in this Court's judgment in Sakkaji Rau v. Latchmana Goundom I.L.R. (1876) Mad. 149; but those rights were liable to be extinguished by the Government alienating the land.' This passage does not however deal directly with the ownership of the nattam. In the South Canara forest cam, The Secretary of State for India v. M. Krishnayya I.L.R. (1905) Mad. 257, Benson, J. delivering the judgment of the Full Bench again laid down that both under the Hindu and Mahomedan Governments waste lands belonged to the State, and observed incidentally that the right of Government to the waste lands had now after protracted contest been established as against the mirasidars on the East Coast, but this point did not arise for decision. We have also been referred to the decision of Benson, J. and myself and in Natesa Gramani v. Venkatarama Reddi 17 M.L.J. 447, where we upheld the finding of the two lower Courts on the evidence that a certain tank in a shrotriem mirasi village belonged to the mirasidars and not to the Shrotriemdar, or Government assignee. I do not think that Benson, J. who wrote the judgment intended to lay down anything inconsistent with the opinions expressed by him in Sivanatha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371 and The Secretary of State for India v. M. Krishnayya I.L.R. (1905) Mad. 257. The decision in Sivanatha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371 was explained as having proceeded on the facts proved as to the particular village, and not as laying down as matter of law that poramboke lands in mirasi villages must necessarily be the property of the Zamindar, that is to say, of Government or its assignee.
16. I have now dealt with the most important aspects of the question, and it only remains for me to formulate my conclusions in this important and difficult case. The village nattam is land in the village set apart from time immemorial for house-sites and cannot be used for any other purpose so long as it retains its character as nattam. On the evidence with which I have dealt I am not satisfied that before the advent of British rule and especially under the Mahomedan Government unoccupied nattam was generally recognized by Government as the private property of the mirasidars, though no doubt where, as was frequently the case, they were themselves renters of the village, the control would remain in their hands, and they may in individual eases have exercised full rights of ownership over it.
17. The next question is - has the mirasidars' ownership been established subsequently either by Government recognition or by judicial decision in the proceedings and cases to which I have referred. As regards recognition, it cannot be said that the Board of Directors, or their successor, the Secretary of State, have ever recognized the mirasidars as owners of the nuttam, and the varying views of successive Governments in Madras on a subject which has never ceased to be controversial do not appear to me to establish any general right based on recognition.
18. As regards the cases, some of the early decisions are not reconcilable with the observations in recent cases such as Sivanatha Naicken Nattu v. Rangachari I.L.R. (1903) Mad. 257 and Secretary of State for India v. Krishnayya I.L.R. (1905) Mad. 257 and, if I may say so with respect, appear to proceed on an unreserved acceptance of the views of Mr. Ellis and Sankariah which appears to me to be an unsatisfactory basis. Even the unreported judgment of Sir Charles Turner is open to this observation. The question is one of great difficulty owing to the unsatisfactory character of the materials on which we have to base our judgment; but on the whole after the fullest consideration of the case in all the aspects that have been presented to us, I do not think that these materials warrant us in laying down the broad proposition that unoccupied nattam in this District is the private property of the mirasidars, and I am of opinion that the question should rather be decided on the evidence in each case and with special reference to user which will probably not be found to be uniform. This was to some extent the test recognised in Natesa Gramani v. Venkatarama Reddi I.L.R. (1907) Mad. 510, one of the latest decisions, and a similar course was adopted by Sir Charles Turner and the other members of the Full Bench who decided Sakkaji Rau v. Latchmana Goundan I.L.R. (1876) Mad. 149, as to the mirasidars' claim to swatantrums which in effect involved their claim to ownership of the cultivable waste, that is to say, of the land in the village which they had presumably reclaimed to cultivation but had ceased to cultivate, a claim which was at least as strong as the present claim to the unoccupied nattam. In this case, as in that, user must in my opinion be the governing consideration.
19. I may add that the preferential right of the mirasidars to cultivable waste which is now well established does not appear to me to be of itself a sufficient foundation for the general proposition that they are entitled to eject inhabitants of the village from portions of the unoccupied nattam granted to them by Government, though they may be entitled as incidental to such right of preferential cultivation to the allotment of sites on the unoccupied nattam when necessary.
20. In the result, I am of opinion that there is no general presumption of the mirasidars' ownership of the nattam in the absence of evidence of user, but that where user is shown the presumption of ownership readily arises.
21. The question propounded for us to answer is as follows:
Whether, in a mirasi village, the mirasidar is entitled to recover possession of a house-site held under a patta from Government.
22. Slightly amplified I take its meaning to be this:
Where in a mirasi village a person has been granted a portion of the nattam poramboke for use as house-site by a duly authorised Government officer, can the mirasidar by virtue of any right, privilege or title inherent in him as mirasidar disregard the grant of the house-site by such officer, and evict the grantee from possession?
23. In the plaint the suit property is claimed by plaintiffs as absolute owners. How far this claim was intended to be based on the adverse individual enjoyment which has been found against by both the lower courts is not clear: but I do not think it has been seriously argued by the learned Vakil who represented them in this Court that their interest in the property amounted to absolute ownership, i.e., ownership without restriction as to the way in which the property should be utilised. Such a claim would in effect only be supported on the theory that every inch of land within the boundaries of a mirasi village was equally and entirely the property of the mirasidar - subject only to liability to pay land revenue to the Circar. It is quite certain that no such claim has ever been recognised by Government or the Courts even if it was ever advanced. It is not disputed that the right of the mirasidar to deal with various kinds of land in his village is clogged with various restrictions. This is clear even from the authority most relied on by appellants : vide Mr. Ellis' report at page 184 of the Mirasi Papers. Tank, road, threshing floor and other descriptions of poramboke lands, not excepting the nattam or house-site poramboke with which we are immediately concerned, can only be utilised for the purpose indicated by the description of each : while it is admitted that cultivable land can under certain circumstances be assigned by Government to a non-mirasidar;, and it has been held in Fakir Muhammad v. Tirumala Chariar I.L.R. (1876) Mad. 205 that a mirasidar cannot without the permission of Government break up immemorial waste and bring it under cultivation. Obviously then ' mirasi' does not imply any general rule of complete ownership over all the lands of the village : and what we have to consider is whether this power to evict under the circumstances contemplated by the reference is an incident of mirasi and whether it has been recognised by Government. That the latter is a necessary condition of enforceability has been laid, down in the most trenchant terms by their Lordships of the Privy Council in a very recent case Secretary of State for India v. Bai Rajbai (1995) L.R. 42 IndAp 229 : 29 M.L.J. 242. They say : - 'Before dealing with the action which the Government of Bombay took in reference to this village of Charodi on receipt of these reports it is essential to consider what was the precise relation in which the Kasbatis stood to the Bombay Government the moment the cession of their territory took effect, and what were the legal rights enforceable in the tribunals of their new Sovereign, of which they were thereafter possessed. The relation in which they stood to their native Sovereigns before this cession, and the legal rights they enjoyed under them, are save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, of any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new Sovereign were those, and only those, which that new Sovereign, by agreement expressed or implied or by legislation, chose to confer upon them. Of course this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extent the new Sovereign has recognised these ante-cession rights of the Kasbatis and has elected or agreed to be bound by them, that the consideration of the existence, nature, or extent of these rights become relevant subjects for enquiry in this ease.'
24. Whatever view is taken of the origin of mirasi tenure (which is entirely a matter of speculation) and the privileges it confers, there are undoubtedly certain incidents, which have been claimed as attaching to it from ancient times, and have to some extent been recognised. They are:
(a) The right to hold his maniam lands free of all payment of land revenue.
(b) The right to hold his patta lands in absolute ownership subject to the payment of such assessment as the State may impose.
(c) A preferential right to cultivation of all lands, which have been brought under, but have gone out of, cultivation (seykal karambu).
(d) The right to certain fees (tunduvaram) on lands granted for cultivation to non-mirasi cultivators (payakaris).
(e) Certain rights over immemorial waste.
(f) Certain rights over lands set apart for various communal or public purposes; e.g., tanks, village site, threshing floor etc.
25. Now all these rights may have a common origin in the status of the mirasidar : but none of them necessarily involves another, and, as will be seen, they vary with the description of land to which they relate. Bach, as it seems to me, requires to be separately established : and recognition by the State, whether express or implied, is an 'indispensable condition for the enforcement of each. It may be argued that the existence or recognition of one renders probable the existence or recognition of another : and this indirect evidence will be dealt with later. But it seems to me more convenient to start with direct evidence regarding the peculiar incident with which we are concerned - that is, the rights of the mirasidar as such over the village nattam.
26. 'nattam' is a particular variety of poramboke land. Poramboke is defined in Wilson's Glossary thus : 'Such portions of an estate or village lands liable to revenue as do not admit of cultivation, and are therefore exempt from the assessment, as sterile or waste land, rock, water, wilderness, site of dwellings and the like: also common land near a town : any place situated out of or beyond certain limits.'
27. Nattam is the 'site of dwellings' above referred to. It does not admit of cultivation and is exempt from assessment, not because it is unfit by nature for the plough (it is frequently cultivated licitly and illicitly), but because it is required and set apart for an indispensable purpose - the building of houses for the various members of the village community. Wherever the ownership or quasi-ownership lies, this overriding limitation is respected by both parties. The mirasidars do not claim to be entitled to bring nattam under cultivation except in the limited and special way incidental to the backyard of a house : and Government do not claim the right of granting it on patta for cultivation purposes subject to the payment of assessment. Such a course is in fact expressly forbidden in the Board's Standing Orders.
28. In fact the dispute between Government and the mirasidars as regards nattam practically amounts to this : in whom rests the right and duty of apportioning the unoccupied 'nattam' so as to ensure its utilisation for the appointed purpose?
29. Now in deciding this question the plaintiffs, who are the parties seeking relief in this case, wish to override the general presumption of the common law of India that the ownership of all unoccupied land vests in Government. If authority be needed in support of this presumption I may cite Subbaraya v. Krishnappa I.L.R. (1889) Mad. 422, The Secretary of State for India v. M. Krishnayya I.L.R. (1905) Mad. 257 : 15 M.L.J. 147, Madathapu Ramayya v. The Secretary of Stale for India I.L.R. (1904) Mad. 386, Bhaskarappa v. The Collector of North Kanara I.L.R. (1879) B. 452 et seq). In Madathapu Ramayya v. The Secretary of State for India I.L.R. (1905) Mad. 257, Bashyam Aiyangar, J. says at page 393 that presumably the freehold in the soil of grama-nattam or village site is in Government. He was of course speaking of an ordinary ryotwari village where no mirasi claims can be set up, but there is no doubt that the presumption of Government ownership applies to nattam lands in ordinary ryotwari villages the ownership being subject to the important limitation above referred to. Even in this latter respect it is not denied that where the nattam in an ordinary ryotwari village is in excess of what is reasonably required, Government may transfer a portion to 'ayan' (assessed) and grant it on darkhast. I mention this specific reference to nattam in view of the possible suggestion that the presumption is inapplicable to poramboke lands.
30. The right of Government to allot nattam in ordinary villages has in fact never to my knowledge been questioned : and an elaborate series of rules has been framed for the guidance of Revenue officers. (Vide Board's Standing Orders 21).
31. The presumption1 has now been embodied in Section 2 of Act III of 1905, and it is very remarkable that there is no mention of mirasidar among the numerous classes, whose rights are specifically excepted. There is no reason to suppose that the act was intended to put an end to any existing right and the mirasidar might, probably shelter himself behind the clause 'all customary rights legally subsisting.' But the section is important both as embodying the presumption in an enactment, and as indicating that in 1905 at any rate the legislature treated the peculiar rights claimed by mirasidars as on a different footing from those of Jenmis and wargdars who are both recognised by name. The mirasidar has to show that his right is a 'customary right legally subsisting.'
32. This presumably involves proof of recognition by the British Government, which, as already indicated, is necessary to establish the right as legally enforceable.
33. As regards the recognition of mirasi right by the State, the burden of proof undoubtedly rests on appellants : Vide Secretary of State for India v. Bai Rajbai I.L.R. (1915) B. 625 above quoted.
34. It may not be out of place to refer to one other point in this connection. If the mirasidars are legally entitled to the right they now claim, it is of course the duty of the Courts to enforce it, irrespective of all considerations of expediency. But where it is clear that the right claimed tends to the prejudice of a purpose to which the property is admittedly dedicated, I think it is the duty of a Court to require very strict proof before giving a decree in its favour. In the present case, no one has ventured to suggest that the enforcement of the mirasidars' claims over nattam would not be gravely prejudicial to the village community generally.
35. Sankaran Nair, J., freely admits as much, and throws out a suggestion calculated to ameliorate the rigour of mirasi control. He says:
It may be that, though the mirasidars are the owners of the village waste lands and house sites, that claim is subject to the claim of the labourers and the residents in the village, and that, if the mirasidar happens to turn out a labourer from his homestead they are bound to give him other house sites.
36. But this liability is not recognised by the mirasidar : and is quite incompatible with his claim not only as put forward in the plaint, but as argued in Court before us. The Board's Standing Order provides a simple procadure whereby any resident of the village can obtain an allotment of vacant 'nattam' for the purpose of constructing a homestead. The recognition of the mirasidars' claims would place the entire control of this unoccupied nattam in the hands of a small corporation frequently consisting of two or three individuals (three in the present case) or even a single person. How potent an instrument of oppression this may be needs no demonstration. It is so, even now, when the mirasidars' claim has not been declared by the Courts, and the labouring classes have he support of Government in resisting it. In the latest survey of the condition of the District, Mr. G.A.D. Stuart writes : (Section 12)-
In Bkabhogum villages the mirasidars still use their claim to village site as a weapon against refractory sub-tenants of labourers, in the manner described by Mr. Mullaly in 1890. A typical instance will be found in village No. 15, Kannivakam, in the Chingleput Taluk Here there are two mirasidars, both absentees, living in Madras. The wet lands are poor and are assessed at Rs. 2 and Rs. 2-8-0, but the resident sub-tenants have to pay Rs. 12 an acre rent to mirasidars. Their holdings are altered as often as possible so that they have lost all occupancy right. Their houses are mostly, built on a piece of patta land and they have to pay rent to mirasidar for each house site. There is plenty of vacant land on the poramboke village site, but the mirasi-dars have 'forbidden' the sub-tenants to build their houses there. I explained to the sub-tenants that the mirasidars have no right to forbid them to use the village site, but they explained that, if they ventured to disobey, their cattle would be impounded. This is a form of oppression which is also mentioned by Mr. Mullaly. In this village all the waste land on which the cattle graze has been taken up and now stands in the patta of the Mirasidar, so that the sub-tenant8 are entirely in the hands of the mirasidars in this respect.
37. The recognition of this claim by the Courts would enable mirasidars, wherever they chose to unite, to practically banish from the village any person, who incurred their displeasure and would go far to reduce the labouring classes to the state of serfdom, from which they have been slowly emerging.
38. I proceed to consider the evidence directly bearing on the existence and nature the mirasidars' rights over 'nattam' and the recognition of these rights by Government. Existence and recognition are, of course, different things; but the evidence regarding both has to be dealt with together inasmuch as appellants depend largely on alleged admissions by Government to establish the existence of the rights they claim.
39. I may say at once that up to a comparatively late period (about 1870) there is very little indeed either in the Exhibits in the case, or in the Mirasi papers to which we have been referred, or in the decisions of the Courts dealing with the point.
40. The minds of Mr. Place, Mr. Ellis, Sheristadar Sankarayya and Sir Thomas Munro were all concentrated on something entirely different - The question of the rights of the mirasidars in cultivable land. In the last years of the 18th and the first quarter of the 19th century this was a burning question. A reference to the minutes of consultation dated the 8th January 1796 shows that at that time, Government took a very extreme view of the relative position of themselves and the ryots (including mirasidars). They say 'Though the inhabitants of each village may, from generation to generation, have cultivated the lands adjoining to it, yet the original compact is not changed by residence : they can establish no more 'rights of inheritance in respect to the soils,' than tenantry upon an estate in England can establish a right to the land by hereditary residence, although the liberal custom of English landlords has generally given a preference to the ancient inhabitants, where a reasonable rent has been acquiesced in.' 'The mirasi inhabitants then bear the same relation as the other inhabitants to Government; and both of them establish by hereditary residence in a village not a right but a preference to the cultivation of the soils, the proprietary right to which is exclusively vested in the Circar.'
41. These were the views that Mr. Place, and to some extent Messrs. Ellis and Sankarayya were combating in the memoranda, and reports on which reliance is placed by Mr. Srinivasa Aiyangar : and although it is needless to say that Sir Thomas Munro in 1824 took a much more liberal and enlightened view of the matter yet he was primarily concerned with the difficulties which the advocates of the mirasidars threw in the way of the introduction of the ryotwari system as regards cultivable land. In almost every passage in which these writers refer to waste, they clearly have in mind either land which has been cultivated and abandoned, (seykal karambu) or land which though never cultivated is fit for cultivation or could readily be made so, and to the cultivation of which by some person or other there is no objection on public or communal grounds (annadhi karambu). It has been argued before us that waste lands include all poramboke lands : and no doubt if waste is interpreted in the widest sense as meaning simply, uncultivated, this is so. But in practice 'tarisu' (waste) and poramboke are understood to be two different things - as authority for which statement I need go no further, than the opening sentences of the referring judgment of Sankaran Nair, J., in this very case. I may however also refer to the foot-note on p. 185 of the Mirasi Papers which gives an exhaustive classification of all sorts of land according to the 'Tirapudi' accounts, which were maintained in those early days of the British Baj, and to the very clear and detailed explanation furnished in Sections 69 - 71 of the Minutes of the Board of Bevenue dated the 5th January 1818 (vide pp. 373 - 4 of the Mirasi Papers.
42. Wherever either Place, Ellis, Sankarayya, Sir Thomas Munro, the Board of Bevenue or Government use the term waste as including poramboke, they are careful to make their meaning clear : e.g., the answers of Ellis and Sankarayya to the second question propounded by the Board (pp. 184 and 219, Mirasi Papers). Mr. Ellis in a single passage (p. 357 id.) uses the word 'tarisu' in a special and peculiar sense indicating land which is neither annadhi karambu or seykal karambu, but 'entirely barren and uncultivable.' This 'tarisu' he gays should like poramboke be deducted totally from the assessable lands of the village. He obviously has in mind such lands as are from their very nature hopeless for cultivation purposes - e.g., stretches of bare rock, which are now usually classed as 'Parai poramboke.' Having cleared such cases out of his way, he proceeds to formulate his proposal regarding the question then at issue - i.e., the treatment of cultivable lands.
43. I shall deal seriatim with the rare instances in which these early authorities refer to mirasi rights as applicable to poramboke land, including 'nattam.'
44. Mr. Plate's final report, which has been much quoted by appellants leaves the question entirely untouched. His conclusions in Section 703 and 704 (pp. 68 - 9, Mirasi Papers) are on the face of it concerned solely with cultivable land capable of paying revenue to the State.
45. Messrs. Ellis and Sankarayya however writing in and confronted with the question 'Does mirasi right extend to waste land?' do refer to poramboke lands.
46. Mr. Ellis says (vide pp. 184 - 5, Mirasi Papers) 'in the Terapadi accounts the lands are distributed according to their several (23) descriptions, either waste or cultivated, and the Mirasidars must enjoy them as thus entered; on the Nattam they must build their houses and nowhere else, they cannot cultivate or appropriate it to any other purpose; in the poramboke they have no right to fill up tanks, stop water courses or obstruct roads; and so in other (24) descriptions of land, Mirasi right is confined to the use of these as they exist. No alteration can be made with respect to them by the Mirasidars; I mean that they have no inherent right to do so, but with the consent of the Sircar any beneficial change in the appropriation of lands may take place, and a correspondent alteration must be made in theTerapadi accounts - thus, if part of the Annadhi karambu lands be reclaimed, or a road in the Poramboke be stopped up and cultivated, the extent must be transferred from this head to that of Varapet.'
47. Seems to me to simply recognise the mirasidars' right of enjoyment of (e.g.) nattam for building purposes. It is obviously incompatible with any claim of full ownership; and I do not find anything to support the idea that their right of enjoyment extends to the exclusion of non-mirasidars from nattam which mirasidars do not require for their own personal use.
48. Sberistadar Sankarayya's answer to the same question is printed at page 219. He lumps all porambokes (including nattam) in with 'tarisu' lands and says they are enjoyed either jointly or severally by the mirasidars. Appellants are entitled, I think, to quote this as an authority in support of their claim. The Sheristadar goes further than any one else in his advocacy of mirasi right; but I am not satisfied that we should be justified in treating him as an authority of the first rank : and he does not seem to have been so regarded by his superiors at the time with the exception of Mr. Ellis himself.
49. How far the Board of Beverme were inclined to admit the mirasi-dars' rights in nattam ids clear from Section 70 of their Minutes dafed the 5th January 1818. (Vide page 374, Mirasi Papers).
The poramboke, or land incapable of cultivation, consists of rocks, public roads, the beds of rivers, tanks, and water - courses, the public ground in which the bodies of the dead are burnt or interred, the paracheri or suburbs of the village, occupied by the huts of Pariah slaves and other outcastes, the lands on which the different village temples stand, and the site of the village itself, called in Tamil the Nattam. It is in this last place that the houses of the landlord Meerassidars are invariably to be found; for hero, and nowhere else, are they permitted to build their houses. Various other pure tribes, such as Brahmins, weavers, merchants and others, are admitted to dwell in this place, and all therefore who reside in it are not Meerassidars; but all the Meerassidars have houses, or at least sites for their houses, in the nattam. Indeed, their title to erect their dwellings on that particular spot, and their right to control the affairs of the village pagoda, and to appropriate the produce of quarries, mines or fisheries are the chief privileges they possess in the poramboke, which, as here described, being incapable of being cultivated, is not liable to any tax.
50. The right now claimed certainly cannot be read into the privileges herein enumerated. They are stated to have a right of control over the affairs of the village pagoda, but not over the nattam. The latter is expressly stated not to be in their exclusive occupation. They are stated to have a right to erect their dwellings on that particular spot, to which might fairly be added as an inferential corollary 'in preference to other people;' but there is nothing tosuggest a right to exclude others from portions of the nattam not required for their own use.
51. These are the views of the Board of Revenue and I can find nothing to indicate that Government, still less the Directors, ever troubled their heads about the matter. There is a single passage in the Minutes of Consultation, dated the 11th February 1856 (page 534, Mirasi Papers) in which Government remarks that Mr. Ellis shows that 'the mirasi interest in land of different descriptions varies much - the highest degree of it being found in the case of the Varapat and cultivable waste the lowest in the poramboke,' I shall show later the utmost limit claimed for mirasi rights in cultivable waste do not extend to the policy of the dog in the manger which it is now sought to put in force as regards 'nattam.'
52. Sir Thomas Munro in his famous Minute of 1824, of course, took a very strong view against the mirasi claims in cultivable waste : but he does not touch on the subject of the mirasidars' interests in nattam though it is not difficult to see what his views would have been, had he bad occasion to express them.
53. In the whole of these official reports, minutes and proceedings up to 1870 on the mirasi question, I can find nothing amounting to a recognition on the part of Government of any title in the mirasidars to monopoly or exclusive control of the nattam. The views expressed on other mirasi incidents, which I shall come to later, certainly incline one to the opinion that had the claim been brought to their notice, they would not have recognised it. The most that can possibly be said is that there is no record of any repudiation of it; and whether this amounts to much or little depends largely on the practice actually obtaining in the villages. This brings us to the papers connected with the order of Government, dated 16-12-1872 at which time the question first really came up for consideration. I shall return later to a few isolated instances in which specific disputes as to nattam had come before the Courts, the Board or Government previously. They do not seem to me very helpful.
54. The order of Government No. 1684, dated 16-12-1872 has been strongly relied on by appellants, and is undoubtedly a piece of evidence entitled to very serious consideration. In the course of it, the Government remark 'In purely mirasi villages, where the entire area belongs to the mirasidars, the Gramanattam no doubt appertains to them equally with the other porambokes;' and the Board of Revenue is instructed to exempt Zemindari and mirasi villages and villages which are private property from the rules they were about to formulate regulating the grant of nattam land for house site. An excepting clause was actually introduced accordingly in the Board's Standing Order and was not removed till 14 years later. These proceedings, according to appellants, constituted a distinct recognition by Government of the right for which they are now contending, and are, as their learned Vakil would put it, conclusive of the case.
55. A careful examination of the connected papers appears to me to considerably reduce the importance to be attached to this alleged recognition. It appears that in 1870 the question of the practice obtaining regarding the disposal of nattam land by Revenue Officers was brought to the notice of the Board of Revenue on a reference from the; Coimbatore District. Reports were called for from all Collectors and these are summarised in the Board's Proceedings. For our purpose it is most important to note that it appears that in Chingleput nattam land was granted to all applicants on a fixed scale. This scale doubtless refers to the extent allotted, and strongly suggests that in this respect regard was paid to whether the applicant was a pattadar or not, and to the assessment paid by him. This distinction is embodied in the existing rules (vide Board's Standing Order 21), and has probably always been observed, wherever rules have been formulated. But there is no mention in Chingleput of any preference to pattadars, as in the adjoining districts of South and North Arcot; and it can only be understood that the village or Revenue Officers granted nattam land for house sites to all applicants at their discretion subject to this fixed scale without reference to any special claim of the mirasidars as such. The Board of Revenue proceeds to consider these reports and to formulate and submit for the approval of Government certain general rules applicable throughout the Presidency. It would appear that in some parts at any rate Revenue Officers had been unduly and unnecessarily interfering in Gramanattam questions, and that it had become desirable to reduce this interference to proper limits. The Board remarks:
The true view of the case is that Gramanattam is the communal property of the villagers, and that the Collector can only interfere with a view to benefit the community, and when his action is consistent with the common law.' Much stress is naturally laid by the appellants on the phrase ' communal property. 'It was at once repudiated by Government, who in their order substitute the following definition:
By immemorial usage a portion of every village is assigned rent-free as a site for the dwellings of the villagers, but as the old Hukumnamahs show the enjoyment of it is subject to regulation by the Government.
56. As a matter of fact, it is clear that the difference between the Board and Government, was merely one of words. The action which the Board proposed for its officers as 'consistent' with the common law' involved precisely the same powers as Government claim at the present day. Its proposed Rule I runs:
Unclaimed portions of the village site may be granted to any one resident or about to become resident in the village on a fixed scale, which must be laid down by the Collector of each district once for all.
57. Government approved of this; and added a more drastic provision insisting on the land being built on within a fixed time.
58. So far the papers are not only useless to appellants, but tell very strongly against them on the most important point of the custom, which had previously been obtaining. But in generally approving the Board's proposals, Government, as already stated, went out of its way to place mirasi villages on a separate footing. 'Why they did so it is impossible to say. The special case of mirasi villages was not raised by the Board, and it does not appear that any special representations had been made by mirasidars. If it is to be taken as meaning that in a mirasi village the entire area belongs to the mirasidars, this view is so utterly opposed to every pronouncement of Government before and since that it is difficult to treat this isolated dictum unsupported by any reason. as a considered and binding expression of policy. If it is merely meant, that the mirasidars had rights in nattam just as they had in other porambokes, each after its kind, this is in accordance 'with Section 69 of the Board of Revenue's Minutes of 5-1-1818 already alluded to; but it does not necessarily involve the idea of exclusive rights. Practically all that one can say is that in 1872 Government declined to sanction the application to mirasi villages of the village site rules approved for non-mirasi villages; and that if the mirasi claim now under consideration had been placed before Government as then constituted it might or might not have been recognised in full, but it would in all probability have received favourable consideration and recognition to some extent at least. Government issued, no specific orders regarding nattams in mirasi villages : but it is very doubtful whether they meant to abdicate entirely the control which had, on the very papers before them, been exercised up till then, so far as appears without objection.
59. At any rate less than three years later when Chingleput District was settled, the Settlement Register of this very village (Exhibit F) which must be taken as issued by the authority of Government contains a note with regard to building site (nattam) that 'no new enclosure is to be made or new building erected without permission in future,' It is difficult to reconcile this with the view which the learned Vakil put forward regarding the order of 1872.
60. I may mention here that although the purport of the latter order was, as already stated, embodied in the Board's Standing Order, yet it does not appear to have attracted the attention of the parties interested or to have had any practical effect on the situation. (Vide Section 8 of Board's Proceedings, 362, dated 24-6-1890, referred to below.)
61. The next landmark is 1886, when the whole question in much the same form as that in which it now presents itself came before the Board of Revenue in connection with an appeal presented by the mirasidars of Nemelicheri against a certain order of Mr. C.A. Galton, then Collector of Chingleput. The Board says in its Resolution No. 1547, dated 7-7-1886 : 'This is an appeal which raises the question of the right of mirasidars (in Chingleput) to the ownership and the full control of the Gramanattam or village site. It appears that the mirasidars of Nemelicheri asserted this right over the land in the parachery of their village and did so by ploughing up part of it, by erecting huts without the, permission of anybody and by ousting a pariah who had occupied a house in the parachery for forty years. In their petition the mirasidars assert an absolute right of property in the parachery land or 'cheri nattam' and a right to oust their farm labourers or apparently any pariah from it.
62. The evidence they have produced make it certain that they have claimed, and probable (but only probable) that they have possessed this right in past times but they cannot show that it has ever been admitted by Government.
63. The Board dismissed the mirasidar's appeal, but in view of the importance of the subject, reported the whole matter to Government, drawing particular attention to the G.O. of 1872, and the probability of a civil suit following on the dismissal of the appeal. The Board expressed a strong opinion that the Collector must be supported in asserting the right of Government to deal with the nattam and negativing the claim of the mirasidars to exercise right of ownership over any part of it.
64. Government, having had the matter thus placed fairly and squarely before them, simply recorded the papers, from which it can only be inferred that they agreed with the Board and were prepared to face the threatened suit. Had they taken a different view, they would certainly have issued orders to admit the Mirasidars' claim, and so save litigation. No suit was apparently ever filed.
65. These papers clearly show that, whatever view the Government of 1872 might have been induced to take, the Government of 1886 did not recognise the mirasidars' claim.
66. The next batch of records to which our attention is drawn is that connected with G.O. No. 704, Rev., dated 3-9-1890. In this order Government in the most explicit terms declines to recognise the mirasidars' special claim to nattam, and repudiates the view which it seemed to have taken in 1872. The G.O. says:
It is true that in 1872 the Government declared that in the exceptional case of purely mirasi villages, where the entire area belonged to the mirasidars, the village site would also appertain to the same body, but the opinion expressed was stronger in appearance than in reality, for it formed part of an argument, contesting the view of the Board that village site was the communal property of the villages and did not appertain to Government. In any case His Excellency the Governor in Council is not now prepared to subscribe to the above dictum, and it is observed that when in 1886, the Board challenged the correctness of the order of 1872 the Government allowed the challenge to pass unnoticed. The said order has thus practically become a dead letter, in so far as it acknowledges the claims of mirasidars to village sites, and in the revised edition of the Standing Orders the words 'mirasi villages' have been omitted from Standing Order No. 37 (formerly No. 39).
67. It has been argued before us that the 'double entry system' regarding house site which prevailed in the village accounts of some, but not all, of the villages of the Ghingleput District is itself evidence of recognition of the mirasidars' claim. This matter is fully considered by the Board and Government in these papers. I have no hesitation whatever in rejecting this argument. There is nothing to contradict Mr. Mullaly's statement that the practice was unauthorised by Government or any responsible officer and it was discontinued, as soon as it was brought to notice, and attention drawn to the fact that it might be construed into an admission of the mirasi claim. In the second place the practice itself is probably due largely, as suggested by Mr. Lee Warner, to the grant by mirasidars of house sites to their labourers out of their own 'porumanais.' (Vide Section 5 of the Board's Proceedings No. 362, dated 24-6-1890). Now the rights of the mirasidars in these porumanais may stand on a very different footing to the right they now claim over vacant nattam. Although the porumanais may be originally misappropriations of nattam poramboke, the mirasidars may have acquired by prescription a valid title to them.
68. The whole question of the position of pariah and low caste labourers in Chingleput, and their oppression by the mirasidars came before the Board and Government in 1892, in consequence of a memorandum prepared by Mr. Tremenhere, who was then Collector. The views then expressed by both authorities were to some extent influenced by the desire to point out what they regarded as the exaggerated expressions of Mr. Tremenhere : but I can find nothing in either Board's Proceedings 584 A dated 19-8-1892 or G.O. 1010 and 1010 A. Rev. dated 30-9-1892 to indicate a change in the opinions and policy enunciated two years before. Government in fact reiterated its orders regarding the contesting of any civil suit brought to assert the mirasi claim to village site.
69. The latest orders quoted are those passed on Mr. G.A.D. Stuart's resettlement report in 1909. These also indicate no change of view. Both Mr. Stuart and the Board emphasize the fact that the mirasidars' claim to all vacant nattam and to the power to oust any non-mirasidar (as now contended for) must be resisted : and Government apparently acquiesce although willing to transfer to 'assessed' all poramanais in which a prescriptive title as against Government can be proved or fairly presumed. The above appear to be the only cases in which the abstract question of the mirasi right now in dispute has been qonsidered : and it seems to me that with the exception of the order of 1872 there is nothing that could possibly be construed as recognition by Government For reasons given above I dd not think this isolated pronouncement is of a nature to be treated as conclusive on the point.
70. It remains to consider certain cases in which the action of Government is represented as constituting (or at any rate supporting the ide a of) recognition of the contested right and certain oases in which the latter is said to have come before the courts, and been the subject of adjudication.
71. Mr. Srinivasa Aiyangar has drawn our attention to a series of papers (Mirasi Papers, Nos. 25 to 32) dealing with the payment of compensation by Government for certain waste lands in the mirasi village of Tondiarpet about the year 1810. There is nothing to indicate that any of these lands W3re natfcam or indeed any kind of poramboke: and the fact that Government were prepared to pay compensation to the mirasidars for cultivable waste has no significance in the present connection. Whether such a claim would be admitted at the present day may be doubtful, but the papers make it clear that Government were not prepared to recognise any proprietary right on the part' of the mirasidars but only what is referred to as 'occupancy' right - by which I think is meant the preferential right of the mirasidar to take up and cultivate waste land (vide p. 143), and that there was an inclination to show some special indulgence to the Tondiarpet mirasidars, because they had recently been evicted from their village in favour of certain Shanars, and thus prevented from exercising their preferential rights. I can find nothing in these papers bearing directly on the present question and I do not think we have been referred to any case in which compensation had been paid by Government for the acquisition of unoccupied nattam.
72. The general question of the necessity of paying compensation to mirasidars for waste land taken up by Government was again agitated about the year 1856 (vide Mirasi Papers, Nos. XCII, and XCV etc.), but here also only with reference to cultivable lands. The two papers mentioned however throw a great deal of light on the views prevailing at the time : and Section 39 of the Government despatach to the Court of Directors dated 5-6-1857 (M.P. No. XCV) makes it quite clear that they were only prepared to pay compensation for cultivable waste on the basis of the value of mirasidars' preferential right to take up the land. For the orders of the Court of Directors as to the limitations on this preferential right vide, Section 30 of their despatch dated 17-12-1856 (Mirasi Papers, No. XCIV).
73. It is unfortunate that the reply of the Court of Directors to the despatch of the Government of Madras is not on record.
74. Since that time (1856) there seems to have been no discussion so. far as the record goes of the liability of Government to pay compensation for waste lands taken up in mirasi villages. The only actual cases to which we are referred are two which came into court. The first which will be referred to later as the Vyasarpadi case related to waste land, which at the time of acquisition, though not assigned by Government, was in the actual occupation and enjoyment of a man claiming under the mirasidars. The second, reported in Sivanatha Naicken v. Nattu Rang a Chari I.L.R. (1903) M. 371, seems to be good authority for the proposition that in the case of immemorial waste compensation is not claimable by the mirasidars. It is argued that the decision proceeded solely on the facts of the particular case, but the first two sentences of Section 3 of the judgment certainly seem to me of general application.
75. One specific case referred to in the papers of 1856 has been referred to and relied on by appellant's Yakil. It is dealt with in M.P. No. XCIII and also in Section 37 of No. XCV : and although it arose in the Tanjore District it calls for comment. The case is a curious one. It relates to a plot of land classed as threshing floor poramboke in the village of Mamalore, The village was held by 4 sharers who called themselves mirasidars; and these sharers had divided the threshing floor poramboke among themselves. One of the mirasidars Cangappa Naik allowed one Narayanasami to put up a temporary house on 18 gulies of his (Rangappa's) share of the threshing floor and this Narayanasami not only declined to quit when called on to do so, but obtained a grant of 40 gulies more of the same land from the Collector, and appropriated a further extent of 42 gulies in which he was subsequently confirmed by that officer. Rangappa having failed to obtain redress through the Civil Courts resorted to the Revenue authorities : and both the Collector and the Board declined to interfere on the ground that the land was poramboke which Government could give to whomsoever they pleased. Government dissented from this view, and directed that the 82 gulies should be placed in possession of Eangappa, and that as regards the original 18 gulies, they should be entered in the accounts as his land, but he should be left to the ordinary legal means to oust the occupant.
76. There is no doubt that in this case Rangappa Naik had a genuine grievance. The land was set apart for use as 'threshing floor,' and the Collector had no right to assign any portion of it to Narayanasami. This, as Government pointed out in Section 39 (p. 555), could only be done if it had ceased to be required for the special purpose for which it was assigned: and in that case it would come under the same footing as ordinary waste, and the mirasidar would have a preferential claim to it. There is no doubt that Government at the present day would come to the same decision as Government did then, as regards cancelling the orders passed by the Collector. For the rest, the letter of Government undoubtedly contains passages which suggest that they saw no objection to the partition of the poramboke between the mirasidars, and regarded his share as his mirasi land which he could do as he liked.
77. Appellants may fairly quote these in their favour; on the other hand it is possible that Government in its desire to refute the Board's argument as to the absolute right of Government in poramboke went too far in the other direction, I am not inclined myself to treat these expressions, possibly incautiously used in an isolated case as good evidence of the determination of the Government of that day to recognise the mirasidars' private and complete title in poramboke lands: especially as we do not know what view the Directors took on this reference. It would appear from another despatch of the Court of Directors about the same time (M.P. No. XCIV) that they did not at all approve of the views of Government regarding mirasi claims to waste lands and were rnuoh more in accord with those expressed by the Board of Eevenue.
78. Turning to the cases on the subject, the earliest to which our attention was drawn is a very old case decided by Sir Thomas Strange, Chief Justice of the Supreme Court in 1808 (No. XXIV of the Mirasi Papers). This was a suit in ejectment brought by a person as the lessee of certain Yellalars, who claimed to be the ancient mirasidars of Tondiarpet. The defendants were certain Gramanis who according to the plaint were mere Porakudis under the Yellalar, mirasidar. Plaintiff alleged an ouster of his lessors by defendants in 1794 and alleged that his lessors had been driven out of the village altogether by the Gramanis with the sanction of the Collector: and the suit was brought to eject the defendants. Neither the Collector nor the Government was a party : and no attempt was made by defendants to justify the alleged ouster of the Vellalars, which the Court was inclined to regard as having been effected by the Collector's orders in consequence of the Vellalars' oppression of the Gramanis, The defence raised was that the Gramanis themselves were the mirasidars : but this was found against them. The only other question gone into by the Court was whether defendants were at the time of suit in possession of anything belonging to plaintiff's lessors, the. Vellalars, It was found that they were not: and the suit was dismissed. It will be seen from the above how little bearing the case can have on the point now under consideration. The property from which forcible ejectment of the Vellalars by defendants was alleged was the 'Nattam' (vide Section 6 of the Judgment) : and this for a very obvious reason. This was the only part of the village of which they (the Vellalars) held actual possession. The cultivated lands were all cultivated by the Gramanis under them : so that there could be no ouster in regard to them. (Vide Section 2 of the Judgment). And by the nattam can only be meant the house sites actually occupied by the Vellalars at the time of the ouster. This is clear from Section 37, where in the learned Judge says, 'Shall we say the Nattam? It is in evidence that the persons whom they represent took possession of it for a short time, immediately after the ouster; but it is proved, on the part of the lessors of the plaintiffs themselves to have been long since destroyed, the houses to have been pulled down, and the site of them to be now uninhabited.'
79. The question with which we are concerned never, in fact, came under consideration in that case at all. There is an interesting discussion in the Judgment on the nature and extent of Mirasi rights generally, but it does not help us. Appellants rely on a remark in Section 16 that 'the Nattam in which they lived including its adjoining backyards' was a material portion of the mirasidars' rights. I take this to mean simply the nattam which they actually occupied. If it meant the entire area of land set apart for building purposes, the reference to backyards (always part of the nattam) is meaningless.
80. Two decisions of the Sudder Court have been relied on : Those in Special Appeal Suit No. 108 of 1844 printed at page 486 of the Mirasi Papers and in Special Appeal No. 14 of 1849 (Decision of the Court of Sudder IJdalut, Vol. I, page, 119). In neither of these was Government represented and neither is of any real assistance. In the first, which arose from Tanjore, the only question appears to have been the right of a mirasidar to evict a former porakudi from samudayam land which he (the mirasidar) had originally given him to build a house. The second is from North Arcot District and clearly relates to cultivable land. It has nothing to do with house-site : and the general remarks in paragraph 7 of the Judgment are of an obiter nature.
81. Exhibit N is a judgment of the District Munsif of Tiruvellore in O.S. No. 33 of 1894, in which the sole mirasidar of Kathurvedu successfully sued Government for a declaration of his title to 3-32 acres of nattam land in that village. The decision is of course only evidence of one instance of successful assertion of the mirasidars' claim. Stress is laid on the fact that Government did not appeal against the decision: but this is explained by the fact that the plaintiff had clearly proved a good title against Government by 60 years adverse possession, while the right of Government to charge assessment was recognised by the Court. Government had therefore no case to appeal on.
82. Lastly much reliance was placed on an unreported judgment of Turner, C.J., in C.S. No. 128 of 1882. In that case plaintiff, a vendee, from the mirasidars, sued for recovery of 5 acres and odd of waste land on which he had built a house and made a garden. The defendant was Government, who had ousted him, claiming the land as their own. It was found that plaintiff had a good title to the land, and, by consent, he was given a decree for damages in place of recovery of the land.
83. The land in dispute lay within Madras Municipal limits, but there is absolutely nothing to suggest that it was village site (nattam). The very size of the plot is against such a suggestion : for in nattam land 5 acres would under the Government system suffice for 50 house sites on the most liberal scale. The words nattam or house site are never mentioned in the pleadings or judgment : and the reasoning of the learned Judge proceeds entirely on the assumption that it is waste land liable to pay assessment to Government on occupation. He decides that mirasidars have certain property in the waste, and that property enables them to dispose of the occupancy of the lands subject of course to the payment of land revenue. This is a very important pronouncement, but it has no immediate bearing on the present question : and the case is not, as was argued, a direct authority on it.
84. I have above to the best of my ability summarised and considered the evidence cited as bearing directly on the right now in dispute. There is other evidence with which it is unnecessary to deal, e.g., various ancient sale deeds in which mirasidars have professed to transfer proprietary rights in nattam and other poramboke lands. These, at most, amount to assertions of the right : and I am very far from suggesting that the right now claimed is a modern invention. On the contrary I have no doubt it is an ancient claim which the mirasidars have asserted sometimes successfully, at the expense of the labouring classes in their villages - sometimes through the medium of the Courts, more frequently by force, and the exercise of the influence and dread attaching to their status. But the real question is whether this right has ever been recognised by Government, or declared by the Courts in such a way as to bind Government or to establish it for the purpose of the present referenoe : and this I do not consider to be proved by the direct evidence dealt with above.
85. It only remains to determine how far this direct evidence ia strengthened, or plaintiffs' case rendered more probable by the analogy of other rights inherent in the mirasidar.
86. The nature of the latter is set out in para, supra. Obviously nothing can be deduced from rights (a) and (b). No attempt has been made to show that the mirasidars possess rights over other poramboke lands bearing any analogy to the one in dispute. As regards (e) it is sufficient to quote Mr. Ellis (vide P. 184 M.P.) 'In the Annadhi karambu, or immemorial waste, though they possess the exclusive right of cutting firewood, working quarries, etc., they have no right of cultivation, much less can they claim any to break up common used for pasturage, or to cut down productive trees, as palmyra, cocoanut trees, etc.'
87. I do not think any argument could be based on this : and there is no evidence, so far as I am aware, to indicate that any such exclusive right has ever been claimed in modern times. There is no trace of anything analogous to it mentioned in Mr. G.A.D. Stuart's very careful and able report (dated 1908) except a claim set up in a few villages to an exclusive right to dig silt and cut grass in tank beds - which he says is not put forward very seriously.
88. There remain (a) and (d) which may be conveniently dealt with together.
(c) A preferential right to cultivation of all lands which have been brought under, but have gone out of, cultivation (seykal karambu).
(d) The right to certain fees (tunduvaram) on lands granted for cultivation to non-mirasi cultivators.
89. Now if it were shown that the mirasidars possessed not a mere preferential right to cultivate, arable waste but a right to evict any other person who had taken up such land under engagement with Government, and to appropriate that land for themselves, then it might be argued with some plausibility that they possessed a similar right in the nattam. I say 'some plausibility' because even then there would be a very vital difference between the two cases, or, to put it in another way, to render the analogy useful to appellants it would have to be shown that their rights as regards arable waste granted to other persons by Government extended far beyond their largest claims. It has been claimed that where Government has granted waste land on cowle to a non-mirasidar, the mirasidars up to three generations might come forward, take the land from him and cultivate it themselves : but by so doing, it has always been assumed, that they would cultivate it themselves and pay assessment to Government. It has never been suggested that they were entitled to cultivate it free of assessment, or to keep the land waste and pay no assessment Here the claim of the mirasidar to evict the non-mirasidar is coupled with no such liability. No assessment is charged on nattam (except in case of encroachments) : and the mirasidars' claim is to evict the non-mirasidar and keep the site unoccupied and useless, until the non-mirasidar is prepared to acquiesce in, the mirasidars' terms. This to my mind cuts at the root of any analogy that can be sought to be drawn for the purpose of the present reference.
90. But, as a fact, I can find no authority in support of any right of recovery by mirasidars of arable waste granted by Government to another person. The Vyasarpadi case to which I have referred goes only to this length - that where the mirasidars have put a non-mirasidar in occupation of cultivable waste, Government cannot evict the latter, though they may (presumably) collect assessment from him. The very same learned Judge has ruled in Subbaraya v. The Sub-Collector of Ghingleput I.L.R. (1883) M. 303 that where the Revenue authorities had granted cultivable land to a non-mirasidar disregarding the preference to which the mirasidars (in spito of a previous relinquishment) were entitled, it was nevertheless, not open to the mirasidars to, oust the person admitted by Government. Mr. Srinivasa Aiyangar seeks to dispose of this ruling on the ground that its correctness has been doubted by Shephard, J., in Secretary of State v. Ashtamurti I.L.R. (1889) M. 121. That learned Judge was dealing with the conflicting rights of a Jenmi and a tenant in possession : and all he says is 'Notwithstanding the opinion expressed by Turner, C. J., in Subbaraya v. The Sub-Collector of Chingleput I.L.R. (1883) M. 303, I think it must be allowed that a suit would lie to compel the Collector to settle the assessment with the real owner and not with a third person'.
91. I am not clear what there is in Turner, C.J.'s judgment, which was relied on by defendants before Shephard, J., but I can find no reason for doubting the correctness of the Chief Justice's ruling in the present connection.
92. There is a Full Bench Case, Sakkaji Rau v. Latchmana Goundan I.L.R. (1880) M. 149 to which also Turner, C.J., was a party. The actual question before the Full Bench related to the mirasidars' right to 'tunduvaram'; but it must be noted that the first prayer of the mirasidar plaintiff had been for recovery of land granted to the defendant by the Revenue authorities : and his relief was refused in the first Court, and the refusal was never appealed against.
93. This brings us to the subject of 'tunduvaram' or swatantrams. The right of the mirasidar to collect something from non-mirasidars holding lands directly under Government has undoubtedly been recognised by Government and is so recognised even in the present settlement. The matter is very clearly discussed in Sections 4, 11 and 18 of Mr. Stuart's report. It appears that in the course of Mr. Puekle's settlement in 1875 the value of these fees was found to amount to at two atmas in the rupee of the Government assessment, and the amount of swatantrams at this rate was duly entered in the village registers. So far as Government is concerned this matter is concluded : though according to Mr. Stuart (vide Section 11 of his report) the fees are very rarely paid in practice at the present day, and the Courts have held as long ago as 1875 that the right to collect them is not to be taken as a necessary incident of mirasi right, but has to be established by reference to the custom of each village, Vide Sahkaji Raw v. Latchmana Gaundan. I.L.R. (1880) Mad. 303. The fees, in fact, seem to be a sort of compensation for the waiving of the mirasidars' preferential right of cultivation and nothing more. Its recognition by Government has no bearing on the present claim relating to nattam poramboke which is exempt from assessment. Even if the analogy were held to be complete, so that the mirasidars could claim from the grantee of a house site from Government a small proportion of the assessment which would be leviable, if the land were 'ayan', this would not support the right of eviction now under consideration.
94. There is one reported case, which has been cited by appellants, but to which I have not hitherto referred as it stands on a footing by itself. This is Natesa Gramani v. Venkatarama Reddi I.L.R. (1907) Mad. 510. The suit was brought by a Zemindar to enforce acceptance of patta by his tenants, who were also mirasidars of that particular village. One question for disposal was his claim to charge for water taken from a pond in poramboke land, as if it was water belonging to Government, The learned Judges accepted the concurrent findings of both the Lower Courts, that in that particular village poramboke and assessed lands are generally the property of the mira~sidars, and accordingly held the water not to be Government water. The decision was confined to the particular case and in any event is not binding on Government.
95. I would answer the reference in the negative.
96. I need hardly repeat, what I have endeavoured to explain at the outset of my judgment. I have considered the matter in its general aspect whether the tight claimed is incidental to the status of mirasidar. We are of course not conserned with cases in which a mirasidar has, prior to the grant by Government, already acquired a title to the particular site either by previous grant or prescription, and sues on such title. Nor am I to be understood as saying that the mirasidars of a particular village are precluded from showing (if they can) that in that village they have acquired by prescription a title in the nattam generally as against Government, which would include the right claimed. But the mere fact that they are the mirasidars of the village neither carries with it such a right, nor does it even raise a presumption of the existence of such a right.
Kumaraswami Sastri, J:
97. The question referred to us for decision is 'whether in a Mirasi village the Mirasidar is entitled to recover possession of a house site held under a patta from Government.'
98. The Chingleput District, in which the Mirasi village in question is situate, is part of what was known as Tondaimandalam where village communities seem to have flourished with some vigour till recent times. A reference to the Mirasi papers and the Chingleput District Manul shows that, under the Hindu Kings, Nattams (villages, formed a close village or township the whole property of which was corporate except probably the actual house site and its backyard in the possession of each villager. On the first formation of a village the rights of occupancy of the whole land comprised in its boundaries seem to have been divided into a number of equal shares or ploughs and allotted to the different members of the settling community. The affairs of the village were not managed by an official appointed by the Sovereign but by the sharers in common. The village or township and not the individual ryot was the Hindu Revenue unit. The village boundaries seem to have been fixed and unalterable. At the earliest stage there seems to have been common cultivation and the net produce, after payment of taxes, was divided according to the shares of the members composing the village community. These villages were known as Pasankarai. The lands seem to have been divided periodically but later on were divided once for all, the Mirasidar enjoying the Mirasi in his own cultivated lands without interference by his neighbours and a share in the waste and other lands not brought, under cultivation in proportion to his share in the village. Such villages were known as' Aridikarai. Even in such villages, excepting as regards lands appropriated to each Mirasidar, the communistic principle seems to have prevailed. Though at first the sharer was not entitled to sell the land allotted to him without the consent of the other members of the community, the right of alienation was gradually established and the alienee acquired by the sale or mortgage a proportionate claim to all the incidents common to the village, as for instance, the right of taking up waste lands to be brought under cultivation, the right; of quarries, fisheries, pasturage and taking timber from forests. When the sharers or Mirasidars were unable to cultivate their lands in person, they had recourse to tenants or Payacarries who were called Ulkudies if they resided in the village and Pdrakudies if they were non-residents. In the beginning the tenants were all tenants at will. The Ulkudies, by reason of long possession, seem to have been recognised as having occupancy rights. The a Pyacarries, whether Ulkudies or Porakudies, paid the Mirasidars a certain proportion of the produce or a certain fixed payment which was known as Swamibhogam or Tunduvaram, The name given to the rights of the sharers was called Caionyatchi when they were non. Brahmans and Swastium when they were Brahmans. During the Mahomedan period we find the term 'Miras' coming to be used indiscriminately for all such rights.
99. The lands of every village were divided into (1) lands which the Mirasidars held free of any tax payable to Government which comprised Poramboke or lands incapable of cultivation Tarisu or waste, and (2) those for which taxes had to be paid and which were called either Varapat or Teervapat lands. As regards Tarisu or waste lands they were either Annadi karambu or immemorial waste or sheycal karambu or wastelands which had for some time been cultivated. As soon as aither of the kind of waste was cultivated, it was classed as Varapat or Teervapat. That part of the Poramboke was called Gramanattam which was the site of the village itself and was the place where the houses of the Mirasidars were usually built. The Cheri was the site set apart for the houses of Pariahs and other low caste people.
100. So far as the Sovereign was concerned, he was entitled to a share in the produce which in theory, was one-sixth though in practice it seems to have been a great deal more. The whole village community was liable to pay the tax and, so long as this was done, it does not appear that the State interfered with the cultivation of the lands.
101. The origin of the rights claimed by Mirasidars is lost in obscurity. I am unable to accept the theory that there was a grant by the Chola King Anandu Ghakravarti to the Vellala colonists whom he is supposed to have introduced in Tondaimandalam. There is nothing but bare tradition to support it and, as pointed out by Sir Thomas Munro in his vigorous minute, dated the 31st December 1824, (page 432 of the Mirasi Papers), the whole story is extremely improbable. The origin of the rights of Mirasidars has to be sought in custom or usage rather than in a royal grant. There can be little doubt that colonists or settlers, who brought lands under cultivation and thus increased the revenues of the State, were looked upon with favour and encouraged : and, where cultivable lands were abundant, the settlers on any particular tract would have had a free hand in expanding their cultivation and would have considered cultivable lands in or near the village as within the exclusive sphere of their influence. They would also have had abundant pasture lands for grazing their cattle, and forests for fire wood and timber. So long as the State received its shard of the produce raised, the settlers were, in all probability, given a free hand in the management of their internal affairs and encouraged in their enterprise by light assessments. A system, based originally on convenience and expediency, gradually acquired the sanction which use and custom invariably acquire in this country. The Mirasi tenure is, in my opinion, more a customary tenure, whose incidents have to be gathered with reference to the rights actually proved to have been enjoyed by the Mirasidars. So far as the rights of the Government are concerned, the question has not been free from difficulty. As regards the sites on which the houses of the villagers actually stood and tbe backyards attached thereto and as regards the lands which were actually brought under cultivation and treated as Varapat or Teerwapat there can be little doubt that in course of time they came to be treated as the exclusive property of the villagers which they were at liberty to alienate as they pleased. So far as the waste lands are concerned, there can be little doubt that the villagers treated them as property which was capable of transfer in proportion to the extent of the cultivated land of the transferor but is not shown that the Government acknowledge their absolute rights to the waste lands. I do not think that the records warrant us in coming to any definite conclusion on the question as to whether Hindu and Mahomedan Sovereigns who ruled over the Carnatic recognised the absolute rights of the Mirasidars over waste or that compensation was paid for waste lands. No doubt Sankariah in his reply set out at page 218 of the Mirasi Papers and Mr. Smalley (at page 401) state that mirasi rights were purchased or compensated for when grants were made. There is also a reference to the practice in the report of the Inam Commissioner which is set out in Government Order. No. 2346 Revenue, dated 23rd December 1861. It does not appear that the lands were in those cases waste. It would, in my opinion, be unsafe to draw any general conclusion on the rather meagre materials before us. It, however, appears that, so far at least as theChingleput District is concerned, Mirasi rights were not interfered with to any serious extent during the Hindu and Mahomedan periods and that the Mirasi system prevailed comparatively unimpaired when the District came under British rule. The following passage from the Minutes of the Board of Revenue, dated 5th January 1818, (page 368 of the Mirasi Papers) is instructive. After setting out the Mirasi tenure with its incidents as they existed when Mirasi rights were in full force they observe as follows : - 'It is by no means, however, to be understood that this is the state generally of Mirasi property in the present time. The severe and arbitrary policy of the Mussulman princes, which, notwithstanding their short and unstable authority on the other coast of the Peninsula, so materially affected the interests of the landlords both in Canara and Malabar, proved much more detrimental to the Mirasidars of the Tamil country, where their authority was of considerable duration, and their dominion was firmly established under the commanding influence of European power. It is well known that by successive augmentations, the demand on the Mirasidars of the Garnatic was gradually raised, so as at last very generally to absorb not only the whole of the landlord's rent, but in many places a portion of the farmer's profit also. Most of the Mirasidars in that part of the country were thus reduced to a situation which, except in name, differed little from that of the Ooleoody Payacarries or permanent farmers; and the Mussulman Government by absorbing the whole landlord's rent, became not only the Sovereigns but the landlords of the country, enforcing in practice their favorite maxim, that the State is the exclusive proprietor of the soil * * * In the Chingleput District also, which was ceded to the Company as a Jaghire before the full extent of the arbitrary power and severity of the Mahomedan Government had begun to be felt, as well as in Dindigul, Madura, Triehinopoly and Tinnevelly, the latest of their southern conquests, Meerassy, though greatly reduced in value, was found in a tolerably perfect state'. I am unable to accept the contention of Mr. Srinivasa Ayyangar that, when the Chingleput District came into the possession of the East India Company, the Mirasidars were recognised by the State to be the sole and absolute owners of the lands included in the boundaries of the village and that the only right the Government then had was to receive the revenue. There can be little doubt that, by long usage and custom, Mirasidars had certain exclusiverights aad privileges over waste lands, but it does not follow that the rights of the Sovereign or Lord Paramount of the soil were ever relinquished in favour of the Mirasidars. Even Sankariah, who supports the claims of Mirasidars to waste lands, admits the right of the State to issue cowles for the cultivation of waste lands if the Mirasidars did not cultivate. In dealing with Mirasi rights to waste lands he observes as follows: - 'While, however, there is, as has been explained, a right of property to the inhabitants as respects their Mirasu, yet, as this right is founded chiefly on possession, a paramount right to the territory, over which bis dominion extends, appears to vest in the Prince; if, therefore, the Mirasidar fail to cultivate, and loss thence accrues to the State, the Sircar enjoys and exercises the right to cause the lands to be cultivated and to issue cowles for that purpose.' The right of the State to select a person to enjoy the Miras and to confirm him in possession by cowle, if the Mirasidar fails to cultivate or aots in any manner detrimental to the State, is also recognised by Sankariah and an instance is given were the Tanjore Rajah transferred villages by Sasanam to non-Mirasidars. In Bhaskarappa v. The Collector of North Kanara I.L.R. (1879) B. 452 Mr. Justice West, in dealing with the opinions expressed by Mr. Ellis and the above passage in Sankariah's reply, observes as follows : - 'There are many other statements to the like effect, and Sir Thomas Munro was undoubtedly right when he asserted that the Government had always asserted a right of disposal over the waste lands of a village'. Though probably Mr. Justice West was not quite accurate in his remarks as to the effect of the replies of Mr. Ellis and Sankariah, supporting the absolute proposition laid down by Sir Thomas Munro, there is very little to support the contention that waste lands, during the Hindu and Mahomedan periods, were treated as the absolute property of the Mirasidars to which the State had no claim except for a share of the produce when the Mirasidars chose to cultivate. They seem to have been the subject of reciprocal rights and obligations.
102. Whatever may have been the rights claimed by or granted to the Mirasidars during the Hindu and Mahomedan periods, the real question is as to the rights which were in existence when the East India Company acquired the territories of the Nawab and the extent to which those rights were acknowledged by the British Government. The antecession rights would only be effective in so far as the British Government consented to their continuance after having become the Sovereign rulers of the Carnatic. As observed by their Lordships of the Privy Council in The Secretary of State for India in Council v. Bai Rajbai I.L.R. (1915) B. 625 the relation in which the landholders stood to their Native Sovereigns before the cession of territory and thelegal rights they enjoyed under them are only relevant in considering what rights the new. Sovereign recognised, either by agreement express or implied or by legislation. In the words of Their Lordships 'the implied agreement may be proved by circumstantial evidence, such as that mode of dealing with them which the new Sovereign adopted, his recognition of the old rights and the express or implied election to respect them and to be bound by them.'
103. The question under reference has, therefore, to be decided with reference to the reports of the various officers as to the nature and extent of the Mirasi tenure, the orders of Government on such reports, and the decisions of British Courts with reference to the rights of the Mirasidars.
104. When the East India Company acquired the territories now comprised in the Madras and Chingleput Districts and proceeded to settle questions relating to the assessment and collection of revenue, three divergent views seem to have been entertained. One was that the Government were the absolute Lords of the soil and that the persons in possession, though for generations, were only in the position of tenants at will. Another was that the Mirasidar had hereditary property in the soil which was good as against the State and the third was that the Mirasi right was only a preference of cultivation derived from hereditary residence.
105. When the East India Company assumed direct control and management of the Jaghir, Mr. Place was put in 1794 and continued in office till 1798. He started with the view that the Government were the sole and absolute proprietors of the soil and that the Mirasidar was only entitled to 'a preference of cultivation derived from hereditary residence, but subject to the rights of the Government as superior Lords of the soil to do what it chose for the cultivation of the land.' Acting on this theory, he seems to have dispossessed several Mirasidars in Tondiarpet, a suburb of Madras, and his action led to a suit in the Supreme Court (to which I shall refer later on) which, though dismissed on a technical.ground, was the first judicial recognition of Mirasi rights by the Supreme Court. Further enquiries induced Mr. Place to change, 'his views and to hold that the Mirasidars had undoubted hereditary property in the soil. In the disputes between Mr. Place and the Mirasidars the Board of Revenue and the Government seem to have taken different views (see pages 25 to 38 of the Mirasi papers). Mr. Place was asked to submit a final report and he did so on the 6th June 1799 (page 38 of the Mirasi Papers) where he reported in favour of the rights of the Mirasidars to the property in the soil. Mr. Place defined Mirasi as 'a right to the use and substance of the soil vested in the present proprietor, his heirs, and successors, so long as he does or can cultivate it and pays his dues of Government and is obedient to its authority and that, when he does not or cannot cultivate his lands, when he withholds the dues of Government or is disobedient to its authority, such part as he neglects or in the latter case the whole escheats to Government who may confer it on whom it pleases'. In 1806 a claim for compensation was made by certain Mirasidars of Tondiarpet in respect of lands taken up for digging what was known as Olive's Oanal. The Board of Revenue in their minute dated 1806 offered three pagodas a cawni as compensation and directed the Collector to inform the claimants of the right of Government to make any appropriation of Sircar lands, especially if waste, on commuting the occupancy right as may be possessed. Disputes arose as to the persons entitled to receive the amounts, and, on a claim being made by Messrs. Arbuthnot and Co., the Board, on the 24th December by messrs. 1810, addressed the Government on the matter. The view taken by the Board was that the lands were of little value and would not have been taken up by Mirasidars if they were assessed and offered to them. They proceeded as follows: - 'The refusal, according to the general usage, would have left to Government the option of disposing it in any other manner; for the principle of the absolute property in the soil being vested in the Mirasidars, however suitable to primitive ages and institutions, does not certainly accord with the usage of modern times in those parts of India, more especially as relates to land, which neither is, nor, within the memory of man, has been in a state of cultivation.' Mr. Ellis was asked whether the Mirasidars were entitled to any compensation and, if so, to how much. He treated the first question as settled by the decision of the Supreme Court in 1808.
106. The introduction of the Ryotwari system was authorised by the Court of Directors in their despatch, dated 16th December 1812, and this necessitated enquiries into the various land tenures. On the 2nd August 1814 the Government requested the Board of Revenue to get the opinions of the Collectors on 28 questions framed by the Government as to Mirasi rights. The most important questions were questions 1 to 4 which run as follows: - (1) How has the Mirasi right hitherto been recognised and respected, where Mirasidars were not the renters? (2) Does Mirasi right extend to waste lands? (3) Is Mirasi right forfeited for ever, when cultivation is for a single season discontinued? and (4) Where Mirasi right exists has it always been respected by the officers of Government in framing the Jummabundy?
107. The replies of Mr. Ellis, who was Collector of Madras, were that the Mirasi right, which he defined as 'a general term used to designate a variety of rights, differing in nature and degree, but all more or less connected with the proprietary possession, or usufruct, of the soil, or of its produce' always existed within the boundaries of the Supreme Court's jurisdiction, that it extended to waste lands, that it was not forfeited by non-cultivation or abandonment, unless the period extended to over three generations, and that it was always respected in the villages of Madras. In answer to the question as to whether: - 'Mirasi right extended to waste lands, his reply was as follows: - Mirasi right, wherever it exists, extends certainly to waste land, but then the right is limited by the nature of the waste; the extent, entered in the Terapadi accounts under the head of a sheycal-karambu, or cultivable waste, they hold as they do the general Varapat, or the taxable lands of the village, and may cultivate it whenever their means permit or rent it to Paracusis but in the Armadikarambu, or immemorial waste, though they possess the exclusive right of cutting firewood, working quarries etc. they have no right of cultivation, much less can they claim any to break up common used for pasturage, or to cut down productive trees, as palmyra, cocoanut trees etc. In the Terapodi accounts the lands are distributed according to their several descriptions, either waste or cultivated, and the Mirasidars must enjoy them as thus entered; on the Nattam they must build their houses and nowhere else, they cannot cultivate or appropriate it to any other purpose; in the Poramboke they have no right to fill up tanks, stop water courses, or obstruct roads; and so in other descriptions of land, Mirasi right is confined to the use of these as they exist. No alteration can be made with'respect to them by the Mirasidars; I mean that they have no inherent right to do so, but with the consent of the Sircar any benefit cial change in the appropriation of lands may take place, and a corresponding alteration must be made in the Terapadi accounts - thus, if part of the Annadi-karambu lands be reclaimed, or a road in the Poramboke be stopped up and cultivated, the extent must be transferred from this head to that of Yarapet.'
108. As regards the forfeiture of rights, he was of opinion that the Mirasidar was, by implied contract, bound to cultivate his full proportion of the Varapet lands, according to the share he held in the village and 'that the Government could arrange for cultivation. If he failed to do so, he was of opinion that the State could emp y Payacaris for a fixed term, not an indefinite number of years, and n extreme cases could resume his Mirasi Swatantrams in respect o he land he refused to cultivate.
109. I have already set out the reply of Sankariah on the question relating to waste. His view is that, as the waste lands are included in the Grama Taram, all such lands have been considered to appertain exclusively to Mirasidars.
110. Mr. Peter, the Collector of Madura, was of opinion that the Mirasi right extends to waste lands and that, if they are brought under cultivation even by a renter, the Mirasidar is entitled to his share. Mr. J. Cotton, the Collector of Tinnevelly, was of opinion that Mirasi; right, wherever it exists, extends to waste lands. Some Collectors did not however go so far.
111. In 1817 the Board of Revenue had under consideration a scheme for permanently assessing each field in each village with money rent for the purpose of introducing the Ryotwari system and wanted information as to the rights of Mirasidars. Mr. Ellis considered the question as to what arrangement was to be made inrespect of waste lands and he proposed to transfer the waste lands to the Mirasidars (page 358 of the Mirasi Papers). The Board of Revenue in Proceedings, dated the 24th. July 1817, passed no final orders on Mr. Ellis proposals but reserved the subject for future consideration. On 8th Sepetember 1817 the Board of Revenue sent to the Government a proposal for the introduction of the Ryotwari system and observed that the Board intended to preserve the rights of the Mira-sidars by directing Collectors not to enter into agreements with persons, who are not, by hereditary or prescriptive right, entitled to pay their dues directly to the Sircar. The Government on the 16th December 1817, in reply to the Board of Revenue, stated that the Ryotwari Settlement should not be attended with any infraction of the rights of Mirasidars or others in the soil (page 365 of the Mirasi Papers). In 1818 the Board of Revenue recorded a minute on the different modes of Revenue Settlement existing in the Madras Presidency. In dealing with the Tamil country they observe that 'In every Tamil village the exclusive right to the hereditary possession and usufruct of the several descriptions of lands situated within its boundaries was originally vested in the Vellalars, one of the principal Soodra castes of that nation, by whom it is termed cawnyatchi, or free hereditary property in the land.' As regards waste lands, they observe as follows : - 'The Tarisee, or waste land, is subdivided into the Annadi karumboo, or immemorial waste, and the Sheycal karumbu, or waste land that has at some time been cultivated; each of these consists chiefly of tracts of common on which the Mirasidars graze the cattle employed by them in agriculture, or of jungle, in which they cut the firewood used by them for fuel, and both are held free from tax. Should the Mirasidars, however, possess the means, they are vested with ample right to extend their cultivation to these lands, though it is understood that the consent of Government is necessary before they can break up the Annadi karumbu, or land that has never been under the plough; but the moment any part of either the Sheycal or Annadi karumbu is reclaimed, the nature of the land is changed, it ceases to be Tarisee or waste, and no sooner is it converted into cultivated land than it is transferred, as such, in the village accounts, to the head of Waraput or Teerwaput, and in common with all land of that description becomes, for the plain reasons already given, liable to tax.'
112. On the 4th November 1820 Mr. Smalley, Collector of Chingleput, addressed the Board of Revenue on the introduction of the proposed Ryotwari Settlement into his District. His proposal was that a fixed Toondooteerva of 3 1/2 per cent on the gross rent should be allowed to the Mirasidars, as it was about the average Toondoowaram which the Mirasidars in that District were then receiving from the Payacarries. As regards waste land, he fully admitted the Mirasidar's right to it, it the Mirasidar was able to bring it under cultivation : but in cases where he refused or was unable to cultivate, he proposed that the Government should let it to strangers reserving the right of the Mirasidar to come in at any period within 105 years on paying the assessment to the person whom he wants to dispossess. The period of 105 years seems to have been the period of limitation in vogue according to Hindu notions which fixed three generations as the period after which rights lapsed.
113. On the 4th December 1820 the Board of Revenue passed proceedings on a reference by Mr. Hyde, Collector of South Arcot, as to the Settlement of that District. They observed that, though much had been said about Mirasi rights in the Southern Provinces, it was doubtful when and how those rights originated, what they exactly were, and whether any Native Government ever admitted them to the extent claimed. As regards waste land they observe as follows: - 'The Mirasidar has also an interest in the waste land, and a right to a Merah or fee, when, being unable bo cultivate himself, he gets a tenant who shall cultivate it, and pay the usual rent to Government. This is fair; he has his fee for the service he performs; but if the Mirasidar neglects or refuses to get a tenant for the waste, and the Sircar is obliged to find one himself, to keep up or increase the revenue of the village, the Mirasidar has no right to the fee; it may either be added to the rent payable by the tenant, or may be given up to him as an encouragement to him to extend the cultivation. The Mirasidars may have claimed more than is here allowed them, and more may have been occasionally granted to them. The Government has been, and ought always to be, indulgent towards its ryots; but when we come to discuss the principle, it will be found that any further legal extension of the privilege of Mirasidars, particularly in the case of their neglecting to keep up the cultivation and revenue of the village, is contrary to common sense, and those common principles upon which every Government and society is founded.' In dealing with the letter of Mr. Smalley, already referred to, the Board stated that they concurred generally in the opinions expressed by Mr. Smalley as regards Waste and furnished him with an extract of their Proceedings, dated 4th December 1820, above referred to, on Mr. Hyde's report.
114. It appears from the Mirasi Papers (page 419) that the Government approved of these Proceedings on the 23rd February 1821.
115. On the 8th August 1824 tho Court of Directors addressed a Despatch regarding the Board's Proceedings, dated 4th December 1820 where they observe as follows: - 'The right of the Mirasidars to tha lands which they themselves cultivate is in general indisputable, as is very often, also, their right to certain advantages accruing to them, apparently, as descendants of the head men of the villages. Their right, in any case, to limit the property of the Oolcoody ryots in their permanent hereditary possessions, seems much more doubtful. and being hostile to the prosperity of the community, ought not to be allowed except upon unquestionable evidence in each case.'
116. On the 2nd January 1822 the Court of Directors were of opinion that the question of Mirasidars' rights ought not to be decided solely on the vjew which Mr. Ellis happened to entertain but should be decided after deliberate inquiry and full information.
117. On the 14th April 1823 the Board of Be venue passed Proceedings on Mr. Smalley's report regarding the introduction of Ryotwari Settlement in Chingleput. They authorised the Collector to give lands to others when the Mirasidars refused to cultivate and stated that the persons to whom the lands were given were not liable, to be ousted but be confirmed in the possession of the land so long as they continued regularly to pay the rent.
118. In 1823 the Board of Bevenue passed proceedings after they received the Minute of the Court of Directors dated 2nd January 1822. As regards waste land they observe 'It has been stated in the replies from Madras, Tinnevelly and Madura, that the right of the Mirasidars extends to 'waste lands,' but what this right is, has not been particularly defined. The Collector of Madras observes that though the Mirasidars 'possess the exclusive right of cutting firewood, working quarries etc., they have no -right of cultivation, much less can they claim any to break up common used for pasturage or cut down productive trees, as palmyra, cocoanub etc.' It is also stated that 'the consent of the Sircar is necessary towards any beneficial change being made with the appropriation of the lands. It appears from the above that the Sircar has a right in these lands as well as the Mirasidars and the Board have now in view to ascertain whether the Government can, according to the ancient usage of the country, appropriate waste land for public purposes without making any compensation to the Mirasidars, further perhaps than the usual one which may be thought just and proper to make up for any loss they may sustain from being deprived of the usage of common for their cattle, firewood etc.' The Board proposed to address the different Collectors as to whether the former Governments had the right to take up waste lands without. paying compensation to Mirasidars and whether in granting Inams compensation was paid to Mirasidars. The Government, however, passed no orders on these proceedings and no question was circulated.
119. On the 31st December 1824 Sir Thomas Munro wrote his famous Minute on the state of the country, and condition of the people. His view was that the Mirasidar, when he failed to cultivate, lost all interest in the property and that the Government may give it to whomsoever it pleases. As regards waste.land he observes 'Mr. Ellis does not seem to be very decided as to the nature of the property enjoyed by the Mirasidar in waste. He admits that he cannot break it up without the permission of the Sircar. He does not say that he has any specific share of it, or that he can sell it alone without the cultivated land, or that he can do more than sell with his arable his right of common in the waste. The Sircar from ancient times has everywhere, even in Arcot as well as in other provinces, granted waste in Enam free of every rent or claim, public or private, and appears in all such grants to have considered the waste as being exclusively its, own property. ****** * It has been supposed that in Meeras villages in Arcot, in the original compact between the Oirear and the first settlers, the exclusive use of the waste was secured to those settlers : but it has already been shown, that in all villages, whether Meeras 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, which possesses, I think, by the usage of the country, the absolute right of disposing of the waste as it pleases, in villages which are Meeras as well as in those which are not.'
120. These views represent, what I may call, the extreme views as to the Crown's prerogative and they do not seem to have been subsequently accepted in their entirety either by the Madras Government or by the Court of Directors.
121. In 1839 the Collector of Chingleput addressed the Board of Revenue with reference to the rights of the Mirasidars in the whole of the lands within the village boundaries, and as to whether the Mirasidars had authority to sell the Poramboke and immemorial waste lands. His view was that the rights of the Mirasidars over the Poramboke and Annadi waste extended only to the privilege of grazing their cattle on them when waste and receiving the Coopatums when cultivated.
122. On the 15th August 1839 the Board of Revenue passed proceedings to the effect that the Mirasidars had no right or authority to sell Poramboke and immemorial waste land They observed that the usual mode of proceeding for parties wishing to obtain occupation of particular lands, was to apply to the Officers of Government to be placed in possession on their executing an agreement to pay the usual assessment, and proceeded to state that 'the rights of the Mirasidars over immemorial waste are confined to the pasturing of their cattle, the cutting firewood etc., and similar common privileges, but these must always give way to any proposition ensuring the extension and realization of the public revenue'.
123. In 1839 the Collector of Chingleput addressed the Board of Revenue on the claims made by the Mirasidara when lands were offered on Darkhast and on certain irregularities which, in his opinion, were causing loss of revenue to the Government. In his opinion the proprietary right of the Mirasidars did not extend to immemorial waste lands and that they had no prescriptive right to oust Payakarry cultivators from lands which were given to them by the Government owing to the Mirasidars not having cultivated them. He, however, admitted the Mirasidars' right to Toondoovaram, Swatantrams etc., in the Sheikal lands and suggested that Payakarry ryots, introduced by the Government, should be secured in their right of occupancy on paying to Government the Government dues and the Mirasidar's fees.
124. The Board of Revenue in their proceedings, dated the 29th August 1839, referred to their proceedings of the 15th August 1839 (above referred to by me) and observed as follows: - 'As regards the right of the Mirasidars to the occupancy of waste, the Board of Revenue, though they have already recorded their opinion against the asserted right of the Mirasidars to the absolute disposal of waste lands from which they have derived no benefit for a long series of years, are still inclined to believe that it would be proper, and at the same time consonant to usage, to give them the preference of posssesaion when offers are made to bring the waste under cultivation. It should be the care of the Collector to ascertain that the parties offering for the lands possess the means to cultivate what they propose, and in these oases if the Mirasidars decline to undertake the payment of the demand, the lands should be given to the parties offering.'
125. On the 28th July 1841 the Board of Directors addressed a Despatch dealing with the rights of the Mirasidars to waste lands. At that time a suit was pending in the Zillah Court of Chingleput where certain Mirasidars had sued the Collector and others for possession of lands granted by the Collector to non-Mirasidars without their consent. The Court of Directors in their Despatch make the following observations : - 'Without entering upon a discussion of the respective rights of Government, and the Mirasidars, over the waste lands, (a point still under the consideration of the Superior Tribunal to which the case has been appealed) it wiil be enough for us to state our opinion that it is desirable that, in all cases where Payakarries propose to cultivate the waste lands of a Mirasi village, their proposal should be, in the first instance, communicated to the Mirasidars, to whom, in the event of their being willing to cultivate, or to give security for the Revenue assessable on the lands, the preference should be given. We consider that the Government has a clear right to the Revenue to be derived from the conversion of waste lands into arable, but we at the same time think it preferable that this object shouldjbe attained whenever practicable, without causing the intrusion of strangers into the Village community' (pages 455 and 456 of the Mirasi Papers).
126. The suit in the Chingleput Zillah Court (to which I shall refer later on) was disposed of by the Provincial Court on the 17th November 1841 in favour of the Mirasidars.
127. On the 3rd July 1844 the Court of Directors addressed a Despatch in continuation of their Despatch, dated the 28th July 1841. They directed that' when proposals were made by Paracoody Eyots for waste lands in Mirasi villages, they should, in the first instance, be communicated to the Mirasidars, to whom, in the event of their being willing to cultivate, or to give security for the revenue assessable on the lands, the preference should be given'; and they directed that on all occasions care should be taken that the just rights of the Mirasidars were respected.
128. On the 11th February 1856 the Government was of opinion that the Mirasidars had no right to convert immemorial waste to any other condition or to any other use, without the permission of the Government.
129. On the 8th March 1856 the Government in proceedings observed 'The Village communities are certainly the parties entitled to occupy the land thus newly made available for cultivation, and they are quite competent to divide it among themselves according to local customs and known rights' (page 536 of the Mirasi Papers).
130. On the 14th May 1856 the Board of Revenue considered the whole question and reviewed the situation. They were inclined to the view that the Mirasidars should have the option of cultivating waste lands of every village before strangers are admitted and that if they refused to cultivate the lands they would have no right to receive any fees or rent from the persons to whom the Government had alloted the lands.
131. The question of the Mirasidars' rights arose again in 1856 in connection with a complaint made by one Rangappa Naik who alleged that he was dispossessed. The Board were inclined to the view that the land claimed by Rangappa Naik being poramboke was not part of the Miras and that the Government could give it to whomsoever it pleased. The Government dissented from that view and in their letter to the Court of Directors observed as follow: - 'After a careful consideration of the case we are unable to concur in the Board's opinion of its merits. In addition to Mr. Forbes' testimony to the custom in Tanjore which in our opinion was entitled to much consideration, we hold that the best authorities were agreed that in Miras villages the Miras extended to waste as well as to arable land. This right we remarked was not exactly the same in regard to waste as it was in regard to arable, as was clearly explained by Mr. Ellis; but in both cases it equally excluded strangers. The Board objected on the ground that the land in question being 'Poramboke' could not be regarded as simple waste but we remarked that land required and used for roads, the sites of houses, threshing floors and some other purposes, was taken out of the arable extent as not being available for culture and was classed with rocks, hills &c.; under the term Poramboke, but chat as soon as such land ceased to be required for such particular purpose, it ceased also ipso facto to be Poramboke, and became subject to the ordinary laws affecting waste. Holding these views we were of opinion that the Memorialist had suffered a wrong in that his Miras land had been given to another in spite of his opposition.' (page 555 of the Mirasi Papers).
132. The Court of Directors in their Despatch, dated the 17th Deomber 1856, to the Government of Madras desired that in the disposal of waste lands the principles laid down in the Desptch of 28th July 1841 and 3rd July 1644 (already referred to by me) should be followed.
133. Prior to 1855 the lands which the Mirasidars actually cultivated were entered in their own pattas whereas the lands which they cultivated through Payakarries found a place in the Samudayam patta. But subsequently the Mirasidars were called upon to declare onoe for all how much of their Pangu lands they wished to retain in their holding and were assessed upon those lands whether they cultivated or not.
134. On the 22nd April 1869 special Darkhast rules were issued for ths Ohingleput District, Rule 7 states that 'the Mirasidars shall have the prior claim over all comers : Payakaries holding Puttahs have the next best claim, and objections made by them will hold good against nonresident cultivators. Should the Mirasidars oppose the application, and request that the land may be given to them in shares proportionate to their respective claims their request shall be complied with.'
135. Rule 13 enacts that 'beds of tanks not hitherto usually cultivated, threshing floors, burning grounds, burial places, cattle-standing grounds, land situated within 10 yards of tank bunds and roads, shall not be given away on Darkhast, and applications for Gramanattum or village sites shall not be entertained.'
136. In 1872 the Government passed Proceedings regarding Grama nattam lands. These Proceedings were passed after a consideration of the proposals of the Board of Revenue and the replies of the Collectors of all the Districts. In paragraph 22 the Government observe that 'the true view of the case is that Gramanattam is the communal property of the villagers, and that the Collector can only interfere with a view to benefit the community, and when his action is consistent with the common law.' They then proceed to state that a special enactment would be necessary to alter the stette of things, that in purely Mirasi villages, where the entire area belongs to the Mirasidars, the Gramanatham no doubt appertains to them equally with the other poramboko but that such cases are exceptional and that the Board will instruct Collectors to re-assert the prerogative of Government by making it known that, except in Zamindari and Mirasi villages which are private property, sites on the Gramanatham are not to be appro-priaced without permission.
137. Till 1890 the Village accounts in several villages of the Chingleput District contained entries where the Mirasidar's name was entered and also the name of the actual person who was in possession. This system was known as 'double entry system' and sites were described as 'the site of so and so resided in by so and so'. Mr. Mullaly, who was then the Sub-Collector, raised objection to this procedure. The Board in dealing with the question recommended its discontinuance but were fully alive to the difficulty of opposing the Mirasidars' claims. They observe 'Undoubtedly the Mirasidars have a great deal of evidence to support their claim, and if it is to be disputed, the strength of Government must lie in the fact stated by Mr. Galton in the Nemalieheri case that Government has never acquiesced in it. If the system of 'double entry' now brought to notice for the first time is not stopped, this strong, argument will cease to exist. Moreover, the Board thinks that the dictum of Government referred to in paragraph 6 of the Board's Proceedings of the 7th July 1886, No. 1547, (in G.O. No. 1684 dated 16th December 1872 already quoted by me) must now be contradicted or explained. The fact that it is not mentioned by Sir Charles Turner in his judgment in the Vyasarpadi case (Civil suit No. 128 of 1882), or in any of the petitions which have been presented to the Board by Mirasidars, shows that it is not known to outsiders at present, but it may beoome known to them at any time and it reads as if it were a distinct acquiescence in the claim'.
138. On the third September 1890 the Government passed orders directing that the practice of registering the name of a Mirasidar, as well as that of the occupant, in the house site accounts should be discontinued.
139. In 1892 the question of the Mirasidars' right again came up for consideration in connection with th9 granting of sites to the Pariahs and other low caste sections of the community. The Board of Revenue sent up their proposals to the Government. In paragraph 9 of their Proceedings dealing with Mirasi system the Board observe as follows: - 'Briefly, the system, as it at present exists, rests on the claims of the Mirasidars to all the waste lands in their villages and to the levy of Swatanfcram or fees from Payakaries or non-Mirasidars who may take up land for cultivation. This claim was fully recognised in the new settlement carried out in 1876-78 (vide G.O. dated 15th February 1876, No. 221) and after full consultation with the Mirasidars, a memorial fee (swatantram), fixed at an average rate of annas 2 on every rupee of Government assessment, was declared to be leviable by the Mirasidars not only one very field lying waste in each village, but also on all lands now held by the Mirasidars themselves and included in their pattas, should such lands be subsequently relinquished and taken up by a non-Mirasidar. The fee claimable on each field was duly entered in the settlement registers against every field liable to it. The only lands against which fees were not entered were those which had already been obtained by strangers and which were held under lease or patta from Government. The absolute right of the Mirasidars in the waste lands of their villages was finally settled by the Courts in 1883 when the Government was compelled by the High Courts to pay compensation to the Mirasidars of the Vyasarpadi village, near Perambur, for waste lands taken up for public purposes.' After dealing with the Judgment of Sir Charles Turner, the Hoard observe. 'It is impossible at the present day to question the rights of the Mirasidars. It is altogether unnecessary to consider whether the survival of these Mirasi claims is due, as remarked by Mr. Tremenheere to the conservative effects of the decisions of the Mayor's Court of Madras. * * * * * * As forcibly remarked by the Board (Board's Proceedings, dated 1st April 1874, No. 754, para. 8, Board's Proceedings, dated 25th May 1875, No. 1415) 'the system is strongly rooted in law and immemorial custom. It is there and must be regarded in many respects neither more nor less than a great but necessary evil'. 'It is of great antiquity,' 'is dearly cherished' and has existed with more or less vitality 'notwithstanding many years of persistent efforts to crush it'.' Eegarding Darkhast rules they observe as follows: - 'In 1869 special Darkhast rules (or rules governing applications for land for cultivation) were prescribed for the Chingleput District in which this preferential claim was distinctly recognised (Board's Proceedings, dated 22nd April 1869, No. 2710). In 1887 a proposal was made to assimilate these special rules to those of other districts in which Mirasi rights are not recognised, but Government declined to sanction the change (G.O. dated 21st October 1887, No, 6297, recording Board's Proceedings, dated 21st September 1887, No 588). The chief point of difference between these special rules and those prescribed for other districts, apart from the fact that any land in Chingleput obtained by a non-Mirasidar must pay two annas in the rupee of assessment as a memorial fee to the Mirasidars, is that in Mirasi villages the Mirasidars have preference over all comers while in non-Mirasi villages the preference is confined to those who own lands adjoining those applied for and to pattadars who take precedence over those who do not hold lands.'
140. In dealing with the rights of Mirasidars the Government observe 'The preferential right of the Mirasidars to the occupation of the waste was deliberately recognised by the Court of Directors in 1841, after considerable discussion in which the views of Sir Thomas Munro quoted by the Memorialists were duty considered.' Then they set out Sir Thomas Munro's Minute and observe 'Sir Thomas Munro merely dissents from the proposition that the 'exclusive use of the waste' was secured to the first settlers and that this right was good as against Government'; but that Sir Thomas Munro did not deny the preferential right of the Mirasidars to occupation of the waste. The Government observe that ' the question of ownership of Pariah house sites is one of legal right, and if the Mirasidars have it they can only be expropriated by compensation; they cannot be deprived of their rights, however oppressive the exercise of them may be, by mere executive order.'
141. In 1909 the Special Settlement Officer (Mr. G.A.D. Stuart) made certain proposals as regards Mirasi rights. As regards Mirasi tenure he proposed a fixed fee of 2 annas in the rupee of assessment of both dry and wet should be collected and paid to the Mirasidars.
142. The Board of Revenue in dealing with Mr. Stuart's proposals resolved to omit from the Patta Settlement Register alt reference to Mirasi privileges.
143. The Government passed orders on the 19th October 1909 and in dealing with the preference under the Darkhast rules observe that 'it would not be equitable to go behind bha arrangement made in the settlement of 1877-78 recognising the preferential right of the Mirasidars to cultivate waste.' As regards Swatantrams, the Government observe as follows: - 'The Government agree with the Board that all reference to Swatantrams and Miras privileges should be omitted from the re-settlement register and that the following foot-note should be substituted for the existing foot-note in the memoirs on mirasi tenure: - 'The right of the Mirasidars to levy a fee at the rate of 2 annas in the rupee of the assessment of both dry and wet lands has been recognised by Government except in the case of the undermentioned fields which are free of Swatantrams so long as they are held under the terms of the original grants.'
144. I have set out in detail the various Proceedings which throw some light on the question of the rights of Mirasidars and oii the attitude which the Government took up from the date of its assumption of control over the Chingleput District. It seems to me that, although the absolute right of the Mirasidars to waste lands has never been acknowledged by the Government, their preferential right to the land has never been questioned; but, on the contrary, has been unequivocally. admitted both by the Court of Directors and by the Government. Individual opinions of Government Officials have varied as to the origin and extent of Mirasi rights over waste and as to the rights of Mirasidars as against the Government. The preferential rights of the Mirasidars to waste lands of the village have been conceded but there is a great divergence of opinion as to whether the Mirasidars can as against grantees from the Government claim anything more than tunduvaram or the customary Swatantrams. The Mirasi Papers also show that the rights and privileges claimed by Mirasidars over waste have not been recognised in some districts and I find it difficult to construct out of the divergent opinions of Government Officials, the Board of Revenue, and the Government Orders any tenure with certain well defined incidents.
145. Turning to the judicial decisions on the rights of the Mirasidars, we find that there is a tendency in the later decisions to require proof of the rights claimed rather than treat Mirasi tenure as well recognised tenure with well defined incidents.
146. The first case of importance arose in 1808 and is reported in Strange's Notes of cases, Vol. I. The suit was in ejectment and was heard by Sir Thomas Strange and Mr. Justice Sullivan. The plaintiffs alleging themselves to be Mirasidars of the village of Tondiarpet stated that the defendants had trespassed and ejected them from the 'Nathum' in their possession. The learned Judges discussed the evidence as to the claims and privileges of the Mirasidars and, while holding that plaintiffs were entitled to the Natham claimed, they dis? missed the suit on the technical ground that the defendants were not found to be in possession of any portion of it. The Court, however, refused to adjudicate upon the rights as between the mirasidars and the Government observing that it was unnecessary to decide how far the Mirasidars' rights were 'Subject to the intervention of the Government.
147. In 1836 the rights of the Mirasidars as against the Government were distinctly raised in a suit filed by Ranga Ayyangar and others against the Collector of Chingleput and the persons who got possession under titles conferred by the Government. The plaintiffs alleged that they were the only Mirasidars of Can-numtongul Village in Chingleput District, that the Collector (1st defendant) granted permission to the defendants who were not the Mirasidars of the village to bring under cultivation about 80 cawnies of waste land, that the plaintiffs offered to cultivate the whole of the waste land amounting to about 164 cawnies and in anticipation of sanction cleared about 60 cawnies for, cultivation, and that the plaintiffs were dispossessed by the other defendants acting under the orders of the Collector. The defendants defended the suit on the ground that the land was waste and that the Collector could grant Cowle to any person for bringing it under cultivation; The plaintiffs hied a reply alleging that neither the Governmont nor the Collector had any power to grant waste lands without the consent of the Mirasi inhabitants, that waste land could not be given to strangers for cultivation without receiving a Razinamah from the Mirasidars and that they applied for the cultivation of the whole pf the waste land when they heard that strangers had applied for it. A number of witnesses were examined and documents filed and the Chingleput court (Udalut Court) passed a decree in favour of the plaintiffs, The Court held that the evidence, showed that the plaintiffs were the Mirasidars and that the defendants had no Mirasi rights in the village. As regards the rights of Mirasidars the Judge observes as follows: - 'That the Mirasidars alone have a right to sell and mortgage Warraput land, and that to every Mirasi share there is a certain portion of waste land attached, but that the particular parts of the waste land which belong to each individual Mirasi share are not usually known because those waste lands are seldom, if ever, divided, are facts which have been established by the evidence of witnesses in numberless cases before this Court; and as no one ever attempted to dispute the inherent right of Mirasidars to the waste land, it is evident that without the consent of the proprietors of the soil, the Collector has no authority to deliver any part of these lands to other persons. In this case it appears that the 7th defendant and others gave their proposals on the 2nd May 1835; this circumstance is not communicated to the plaintiffs, but they on the 4th May 1835 sent in proposals for 40 cawnies; but after this on hearing of the proposal made by the 7th defendant and others, they on the 21st May 1835, gave in an agreement to the Tahsildar, plaintiffs' document, No. 50, promising to take all the waste lands in the village at the full Teervah and to give security for the performance of their contract. On the 15th June 1835 the Collector grants the Cowle to the 7th defendant and others, in doing which the Judge is of opinion the Collector acted contrary to the acknowledged right of the plaintiffs.' The Cowle granted to the 7th defendant and others was annulled and a decree was passed in favour of the plaintiffs. An appeal was filed to the Provincial Court by the Collector but the decision of the lower Court was affirmed on 17th November 1841. The Appellate Court considered that the only question for determination was whether the Government had power to grant waste lands in Mirassi villages to strangers without first obtaining the consent of the Mirasidars, and decided that the Government had no such power. No appeal was filed by the Government against this decision and the Board of Directors referred to this case in their Despatch, dated the 3rd July 1844, already referred to by me (see pages 456 to 469 of the Mirasi Papers).
148. In 1848 the plaintiff, who was a Mirasidar, sued to recover arrears of Swatantrams due to him for certain lands cultivated by the defendants. The defendants denied the right of the Mirasidar to levy such Swatantrams claimed and alleged that the lands for which they were claimed had been left waste from time immemorial by Mirasidars who declined to take them up and that the Government thereupon rented the lands to them, The suit was dismissed by the Sudder Ameen on the ground that the land in question was immemorial waste not forming part of the plaintiff's share, that the defendants held it not from the Mirasjdars but from the Government, that in the Gowle granted to them there was no stipulation that they were to pay any Swatantrams to Mirasidars and that it was not customary to pay Swatantrams in such cases. An appeal was filed and the Civil Judge decided that Mirasidars had no right to levy Swatantrams from Peycarries who did not hold from them but under Cowles granted by Government for lands which were classed immemorial waste.
149. The previous decision of 1844 does not seem to have been brought to the notice of the Court and the remark of the Judge that the question has been frequently decided in the negative does not seem to be accurate. The Judge seems to have been of opinion that, where the Mirasidars fail to cultivate the lands and the Government exercises its right of granting Cowles to third persons, the Mirasidars are not entitled to claim any perquisites from the grantees. (See pages 485 and 486 of the Mirasi Papers.)
150. In 1844 a suit was filed in the Kumbakonam Munsif's Court by a Mirasidar to recover a piece of Samudayam land from the defendants on the ground that the land was within his Mirasi and was let to the defendants and that they failed to pay the rent. The defendants pleaded that the ground was Casawurgum, that they built a house and lived in it for several years paying taxes to the Government and that the plaintiff had nothing to do with the land. The District Munsif decided'the suit in favour of the plaintiff, and on appeal the Sudder Udalut Court confirmed the Judgment of the Munsif and observed as follows - 'It is clear that the land in dispute is within the Mirasi of the plaintiff and therefore in disposing of the question at issue it will be necessary to consider the privileges of the Mirasidars, the customs of the province, and the grounds on which the defendants claim to continue the occupation of the ground. The Mirasidars are the acknowledged hereditary proprietors of the soil. Those in Tanjore and other districts in which Mirasi right is recognised allow their Paracudis or under-tenants and others to erect houses on their Mirasi lands, but their doing so, neither destroys the Mirasidars' right to the lands, nor does it transfer the right to the Paracudis? So long as the Paracudis cultivate the Mirasidars' lands, they are entered in the accounts as Paracudis, but on ceasing to do so, they are called Casawurgums, which the appellants admit that they are. This change of denomination however does not in any way affect the relative position of the parties, and the assertion of the appellants that as Casawurgums they are independent of the Mirasidar, is not correct. On the contrary, the custom of the province is that, if a Paracudy ceases to cultivate and becomes a Casawurgum, the Mirasidar requires him pay rent for a portion of his backyard which he would not do if he remained a Paracudy ' (see pages 487 and 488 of the Mirasi Papers).
151. In 1850 the Sudder Court decided that Swamibhogam should be paid to the Mirasidar by a tenant let in by Government. (Sudder Court Decisions, Vol. I 1850, page 119).
152. In 1857 the Sudder Udalut Court held that Ulkudies had a right to sub-let the lands they occupied and that the Mirasidars were not entitled to eject the sub-lessees (see page 577 of the Mirasi Papers).
153. In 1860 the Sudder Udalut Court decided that, where a Mirasidar desired to eject a Casawurgam tenant who had been in possession of the property for a long time and had erected substantial buildings, the Mirasidar was bound to compensate him for the value of the buildings (see page 585 of the Mirasi Papers).
154. In 1861 the Sudder Court held that, where lands were abandoned and left waste by the original cultivators, they 'were at the disposal of the Revenue authorities and that the former occupants had no title to eject the parties who may have been placed subsequently in possession in accordance with the rules of the District and established usage (see page 590 of the Mirasi Papers.)
155. A similar view was taken in Punniakoti Mudali v. Munisami Sudder Court Decision, 1862 page 2.
156. In Muniappa Mudali v. Kasturi Ranga Charriar Sudder Court Decision, 1862 page 50, it was held that in Mirasi villages the Mirasidars possessed the proprietary right in Samudayam lands.
157. In Sakkaji Rau v. Latchmana Goundan I.L.R. (1880) M. 149, the right of the Mirasidars to recover Swatantrams was raised. The plaintiff, as the sole Mirasidar, sued to recover possession of lands and arrears of Thoondutirwa and Thoonduvarakuppatham. The lands were granted to the defendant by the Revenue Officer but it was not clear whether the Mirasidar had applied for the lands before the grant to the defendant. The first Cfturt dismissed the suit in so far as it related to ejectment but passed a decree awarding the Thoondutirwa claimed. The District Court was of opinion that the plaintiff by omitting to take a revenue engagement for the lands, had relinquished his Mirasi rights and reversed the decree of the lower Court. The High Court at first held that, though the omission of the Mirasidar to cultivate might empower the Revenue authorities to introduce a cultivator, it did not further prejudice the prescriptive rights of the Mirasidar and that those rights would not be lost by the Mirasidars declining to receive a patta for the lands. A review of the Judgment was allowed and the case was re-argued. A Full Bench of the High Court considered the reports of the Collectors set out in the Mirasi Bapers and the orders of the Board of Revenue and the Government and was of opinion that from the variety of opinions expressed they could not lay down as a uniform rule that Mirasidars were entitled to dues from cultivators holding lands within the area of the Mirasi estate under pattas from Government. They were of opinion that, where the right was denied there should be enquiry whether by custom it prevails on the estate or if there are not sufficient instances on the estate to afford grounds for a decision, on similar estate in the neighbourhood. A finding was called for on the following issue 'Is the Mirasidar entitled, by the custom of the estate or neighbourhood, to demand payment of any, and, if any, what dues from ryots cultivating, under pattas from the Governmsnt, lands for which the Mirasidar has refused to engage?'.
158. Though it is expressly stated in the Judgment that there has been no law depriving the Mirasidars of any privileges they may have customarily enjoyed, their Lordships after a survey of various Government orders and opinions of officials were not prepared to lay down any general rule as to the rights of Mirasidars but left the matter to be decided on evidence in each locality. This decision marks an important departure from the attitude taken up by Courts previously and makes usage in each locality the criterion for ooming to any conclusion as regards the rights of Mirasidars.
159. In 1882 the rights of the Mirasidars as against the Government came directly in question in respect of a piece of land within the Mirasi village of Vyasarpadi. The plaintiff alleged that the Mirasidars of Vyasarpadi sold a portion of waste land situated in their Mirasi estate to him, that he was in possession of the same, and that about the 26th April 1881 the Officiating Superintendent of the Gun Powder Factory, acting on behalf of and under instructions from Government, wrongfully took possession of the land and ejected him. The plaintiff claimed to recover possession - of the land and also compensation. The Secretary of State for India filed a written statement pleading that the land was the property of the East India Company and subsequently became the property of the defendant and was in possession of the Government, that some persons erected a hut on the land and planted a hedge and in so doing committed trespass and that, after being warned to remove the said hut and hedge, they were removed by officers of Government. The suit came on for hearing before Sir Charles Turner sitting on the Original Side of the High Court and a decree was passed in favour of the plaintiff. The question for determination was whether by the Customary Law Mirasidars had any title to the waste lands within the area of the Mirasi estate. With reference to Mirasi rights to waste, Sir Charles Turner observesas follows : - 'One question constantly occurring was the rights of the Mirasidar to waste. The better opinion appeared to be that he had a right to the waste, even though he paid no revenue for it, but that, if he omitted to cultivate what was cultivable by Paikarries the Government might issue pattas to strangers for its cultivation. There resulted a long struggle between the Mirasidars and the Government, the former unable to cultivate and unwilling to pay assessment on much of the land ovef which they claimed rights and on the other hand resisting the introduction of strangers. When pattas were granted to strangers, the Mirasi right was not altogether lost and in some villages the Mirasidars succeeded in obtaining from the ryots introduced by Government recognition of their interest in the soil by the payment of small cesses'. After referring to the state of things in Bengal where a satisfactory solution had been arrived at by the Begulation 7 of 1822 he observes as follows: - 'From the authorities I have consulted in this and other cases which have come before the Court I hold that Mirasidars have in this part of the Presidency certain property in the waste and that property enables them to dispose of the occupancy of the lands subject of course to the payment of revenue and 'that this property is not necessarily lost by non-payment of revenue, I need not refer to any further authority than the replies made by Mr. Ellis and Mr. Sankariah who was for many years Sheristadar in the Huzur Cutcherry of Madras.'
160. In Subbaraya v. The Sub-Collector of Chingleput I.L.R. (1883) Mad. 303, the question of the Mirasidars' rights was considered. The plaintiffs, as Mirasidars of the village of 'Vallipuram in the Chingleput District, alleged that a stranger made a Darkhast for certain lands in their village, that they objected to such a grant and claimed that a patta should be issued in their own names and that the lands should be put in their possession. The defendants pleaded that the lands, although formerly held in common by the Mirasidafs of the village, were subsequently relinquished, that it was competent for the Revenue authorities to arrange for the cultivation of the lands without reference to the former registered pattadars, that the lands were unoccupied waste at the disposal of the Government when they were assigned to the defendants and that the Civil Courts could not take cognizance of the suit. The District Munsif held that the Mirasidars had a preferential right to the lands and that the grant of a patta to the 2nd and 3rd defendants was invalid and that the Civil Courts had jurisdiction. The District Judge held that the Court had no power to order the Revenue authorities to transfer the registry of lands from one person's name to another and that, if the Mirasidars could be shown to have formally relinquished the plaint lands or acquiesced in such relinquishment by the former pattadars acting as their representatives, they had no cause of action against any of the defendants. Holding that the claim of the plaintiffs was one which the Government was bound to recognise, he was of opinion that the plaintiffs had relinquished the lands and had no proprietary right to them. Sir Charles Turner was of opinion that, where a Mirasidar ceases to cultivate waste lands within his Mirasi estate, or neglects to cultivate cultivable waste, the Government is at liberty to issue pattas to those lands to any stranger who will undertake to pay the assessment and that where there has been a mere relinquishment of the revenue engagement by the Mirasidar he does not lose his Mirasi right. He was also of opinion that a Civil Court cannot compel the Revenue authorities to make settlement with a particular person where the Mirasidars had abandoned their engagement and so given occasion to the Revenue authorities to offer engagements to others. Mr. Justice Innes was of opinion that the Mirasidars had abandoned their right and that the Collector was consequently empowered to grant the lands to strangers. Where, however, the relinquishment was not absolute but only for a period he was of opinion that, until the lands were sold for arrears of revenue, the Collector would have no power to dispossess the Mirasidars absolutely. This case seems to have proceeded on the footing that a relinquishment by the Mirasidars confers absolute power to Collectors to grant the lands to others and that the Mirasidars cannot subsequently lay any claim against the persons to whom the lands have been granted by the Government.
161. The view of Sir Charles Turner that it was open to the Collector to introduce strangers if the Mirasidar does not pay the Government dues was considered and dissented from in Secretary of State v. Ashtamurti I.L.R. (1889) Mad. 89 Where it was held that the only remedy was a sale of the holding for arrears of revenue and that the Government had no right to letin any new Pattadar without baying recourse to the remedies prescribed by Act II of 1864. Mr. Justice Shephard dissented from the view expressed by Sir Charles Turner and held that a suit would lie to compel the Collector to settle the assessment with the real owner and not with a third person. In dealing with the rights of Jenmies in Malabar he compares them to those of Mirasidars and observes as follows: - 'The rights of the Jenmi are certainly not less extensive than those of the Mirasidar with which they have often been compared (see Mirasi Papers, page 434 and Appendix I). Yet the Mirasidar is generally entitled to a prior right to undertake the cultivation and consequent assessment, Fakir Muhammad v. Tirumala Chariar I.L.R. (1876) Mad. 205 Mirasi Papers, page 219, and he does not lose any prescriptive rights he may have by the fact that patta is given to another, Subbardya v. The Sub-Collector of Chingleput I.L.R. (1883) Mad. 303.' Mr. Justice Shephard evidently thought that I.L.R. 6 Mad. 303 was in favour of the Mirasidars' preferential right.
162. In Sivanatha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371 the dispute was between Shrotriemdars and Mirasidars in respect of compensation awarded by the Government for lands taken up under the Land Acquisition Act I of 1894. The lands taken up were immemorial waste or jungle lands and the compensation amount represented the rent for the occupation of the land for five years 'as an artillery range and the value of the trees removed from it. The District Judge was of opinion that the Shrotriemdars were entitled to compensation as the evidence, showed that they were actually exercising their right as owners of the land in question and leasing out those uncultivated lands on long leases. Mr. Justice Davies and Mr. Justice Benson were of opinion that the only question was whether as Mirasidars they were entitled to compensation for immemorial waste lands taken up under the Land Acquisition Act and observed that there was no allegation or evidence that such a right had ever been claimed or established against Government in villages where Government had not alienated its right to third parties. They observe as follows: - 'The rights of the Mirasidars over immemorial waste (apart from their preferential' right to cultivate) appear to be confined to grazing, cutting firewood and similar common privileges, as stated by the Board of Revenue in the passage quoted in this Court's judgment in Sakkaji Rau v. Latchmana Gaundan I.L.R. (1880) Mad. 149 but those' rights were liable to be extinguished by the Government alienating the land. As already remarked there is nothing to show that the Government has ever treated the Mirasidars as entitled to compensation for such curtailment of their communal rights. The Shrotriemdars stand in the place of Government in this case and the evidence is that they have from time of time leased portions of the waste lands of the village to the Mirasidars of the village, and sometimes to strangers without giving the Mirasidars a share of the rent or other compensation. There is morever the recent admission of one of the leading Mirasidars, who is also an appellant, that in the village 'the poramboke lands belong to the Shrotriemdars : the 'tarisa' or uncultivated lands which are not in the holding of anybody else do also belong to the Shrotriemdars only,' (Exhibit B).' Govindarajulu Naidu v. Venkataramanjulu Naidu, Appeal Suit No. 76 of 1891 where the Mirasidars were allowed a part of the compensation given for land taken up under the Land Acquisition Act was distinguished on the ground that the facts were different.
163. From the facts appearing in Sivanatha Naicken v. Nattu Rdnga Chari I.L.R. (1903) Mad. 257 it is clear that the Shrotriemdars and not the Mirasidras were proved to have exercised acts of ownership on the land. The observations of Their Lordships that the Government never treated the Mirasidars as entitled to compensation for the abandonment of communal rights is not correct. The Mirasi Papers and the judgment of Sir Charles Turner in the Vyasarpadi case show that compensation was awarded by the Government not only under decrees of Court but also out of Court. The decisions of the Sudder Court and the Provincial Court of Chingleput where the claims of the Mirasidars have been distinctly recognised over waste land and where strangers introduced by Government have been ejected at the instance of the Mirasidars, have not been noticed. Though the judgment is perfectly intelligible on the facts found that the Shrotriemdars exercised acts of ownership over the land and the Mirasidars admitted their rights, I am unable to follow it where the broad proposition was laid down that the rights of the Mirasidars were liable to be extinguished simply by the fact that the Government gave pattas to third persons.
164. Mr. Justice Benson, who was a party to Natesa Gramani v. Venkatarama Reddi I.L.R. (1907) Mad. 510 expressly states in his judgment, when referring to Sivantha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371 that the decision proceeded on the facts proved in evidence as to the particular village and does not lay down as a matter of law that Poramboke lands in villages such as this in Chingleput District must necessarily be held to be the property of the Zamindar.
165. In The Secretary of State for India v. M. Krishnayya I.L.R. (1905) Mad. 257 a question arose as to the rights of the Government as regards forests and immemorial waste in South Canara District. This ease has nothing to do with the Mirasi rights in Chingleput District and, so far as the present question is concerned, it is only authority for the position that there is a general presumption in law that waste lands belong to Government. At page 282 there is the following observation: - '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.' No reference has been made to any authority to establish the broad proposition laid down. I agree with Mr. Justice Sankaran Nair in holding that, with the exception of the observation in Sivanatha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371, which is explained in Natesa Gramani v. Venkatarama Reddi I.L.R. (1907) Mad. 510, as having been decided not on any general principles of law but with reference to the facts of the particular case, there is no authority for the above observation, and that it should be treated merely as an obiter dictum.
166. In Natesa Gramani v. Venkatarama Reddi I.L.R. (1907) Mad. 510, the question arose as to whether a second crop raised with water from certain ponds in Poramboke or unassessed lands in the village was liable to any claira for rent by the Zemindar. Both the Revenue Courts before whom the suit came on and the District Court on appeal found in that village of the Chingleput District Poramboke or unassessed lands were generally the property of the Mirasidars. The High Court accepting the finding decided in favour of the Mirasidars.
167. Though at first sight it appears that this case was decided on the concurrent findings of the lower Courts, lower Courts seem to have arrived at the finding more with reference to the considerations as to the rights of the Mirasidars as set out in the Mirasi Papers than on the evidence which was very meagre. This case is, however, important as explaining Sivanatha Naicken v. Nathu Ranga Chari I.L.R. (1903) Mad. 371. In dealing with the case Their Lordships Mr. Justice Benson and Mr. Justice Wallis observe as follows: - 'With regard to Sivantha Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371, we think the decision proceeded on th9 facts proved as to the particular village and does not lay down as a matter of law that Poramboke lands in villages such as this in the Chingleput District must necessarily be held to be the property of the Zamindar'.
168. Mr. Justice Sadasiva Aiyar is of opinion that 'there can be little doubt that till 1886 the inclination of the High Court was to hold that Mirasidars had ownership right in immemorial waste and in Nattam sites also.' I do not think that the eases decided subsequently overrule the cases decided prior to 1886.
169. In 1894 a suit was tiled in the District Munsif's Court at Tiruvellore by one Bhashyakarlu Naidu, the Ekabhogam Mirasidar of the Kathirvedu village, against the Secretary of State claiming to be the absolute proprietor of the Gramanatham in the village and seeking for a declaration of his title and an injunction restraining the defendant from levying any assessment on it. The written statement set up the absolute right of the Government to allot land for buildings and to allow cultivation on such lands as it thinks proper to the exclusion of the Mirasidars. The second issue referred to the question of the absolute right set up by Grovernment and the District Munsif held that, both on the general incidents of Mirasi tenure and on the facts of the particular case, the Mirasidar had a proprietary interest in the Natham bat had no right to cultivate it as he pleased.
170. Though the appeal by Government to the District Court was dismissed, the matter was not taken up to the High Court.
171. O.S. 136 of 1899 on the file of the Chingleput District Munsif's Court was a suit by the Mirasidar to recover the value of trees standing on the Gramanatham Poramboke which had been cut by some Pariahs under orders of the Sub-Collector. The Government was a party to the suit. The plaintiff obtained a decree which was confirmed by the District Court and the Government did not carry the matter any further.
172. In Chinnan v. Kondama Naidu (1913) 26 M.L.J. 169 Mr. Justice Sadasiva Ayyar and Mr. Justice Spencer considered the nature of the Toonduvaram demanded by Mirasidars. Mr. Justice Sadasiva Ayyar was of opinion that the original Mirasidar was entitled to demand from the Ulkudi Kudivaramdar some Swatantrams including what was called Toonduwaram the amount of which Swatantrams was a certain proportion of the gross produce raised by the Ulkudi tenant. He considered Swatantrams as 'a fraction of the fruits of-the Kudivaram right which fraction can never be lost by the Mirasidar.' Mr. Justice Spencer was of opinion that, when there was a body of Mirasi proprietors, there 'were three instead of two to share and that the Toonduwaram was the landlord's share. This view is supported by the observations of Collins, C.J. and Muthuswami Ayyar, J. in Chidambara Pillai v. Thiruvengadathiengar : (1897)7MLJ1 .
173. Appeal Suit No. 76 of 1891 was decided with reference to a dispute between the Shrotriemdar and the Mirasidars of the village of Uttukadu as to compensation. The land which was taken up by the Government lay waste from time immemorial and was stony and incapable of cultivation, unless it was first levelled and cleared of stones. The Mirasidars, although they admitted that the Shrotriemdar had the Melwaram right in the property, contended that Uttukadu being a Mirasi village, the Kudiwaram right vested in them. The District Judge dismissed the suit on the ground that the plaintiffs did not prove that they were Mirasidars. On appeal Their Lordships Mr. Justice Muthuswami Ayyar and Mr. Justice Best found on the evidence that the plaintiffs were Mirasidars. They held that the Shrotriemdar and the Mirasidars had in law a joint interest in the land taken up, and that the compensation should be apportioned between them both. The whole judgment proceeds on the footing that, if the plaintiffs proved that they were Mirasidars of the village, their joint right to waste land followed as a matter of course.
174. Reference has been made by Mr. Grant to the observations of Mr. Justice Bhashyam Ayyangar in Madathapu Ramayya v. The Secretary of State for India I.L.R. (1903) Mad. 386 to the effect that the Gramanatham or village site is presumably the freehold property of the Government. The Natham in question was in the Kistna District where Mirasi rights do not exist. There can be little doubt that in non-Mirasi villages the control of the Gramanatham vests in the Revenue authorities and that they are at liberty to grant portions of it at their discretion to applicants. I need only refer to The Collector of Godavari v. Pedda Rengayya (1903) 4 M.L.T. 440 and Putloor Boyanna v Golvsn Asethu (1914) 16 M.L.T. 48. In the case of Mirasi villages different considerations prevail and the question is how far the absolute right of Government to waste lands is controlled by such of the incidents of Mirasi tenure as are in force by virtue of custom or usage recognised by the British Government and enforced by judicial decisions of competent Courts. If the question was merely one of preference the decision in Fakir Muhammad v. Tirumala Chariar I.L.R. (1874) Mad. 205, which was followed in Theivu Pandithan v. Secretary of State for India I.L.R. (1898) Mad. 433 would apply, but if the Mirasidars have a proprietary interest in the soil the rights are capable of being enforced if ignored by Government.
175. The conclusion I have come to is that while on the one hand the absolute right of the Mirasidars to waste land has not been made out-it is open to the Mirasidars to prove that by custom or usage they have a proprietary interest in waste lands Where such a right is proved the Government has no power to ignore the Mirasidars and grant the land whether it be cultivable waste or other poramboke to strangers and the Mirasidars can enforce their right 'by recovering possession. The absolute right of the Government to do what it likes with the waste in Mirasi villages has not been established. The various orders of the Court of Directors and the Local Government and the decisions I have already referred to negative any such right.
176. It is argued by Mr. Grant that the effect of Act III of 1905 is to vest in the Government all waste lands irrespective of any rights which vested in the Mirasidars before the date of the passing of the Act. It seems to me that the effect of Act III of 1905 is to vest in the Government lands which are not proved to be private property and that it is not a confiscatory measure. The effect is simply to throw the burden of proof, in cases of waste land, on persons who claim that it is their property. Even prior to the passing of Act III of 1905 the effect of the judicial decisions was that prima facie waste lands vested in the Government. I need only refer to, Vyakunta Bapuji v. The Government of Bombay (1874) 12 Bom. H.C.R. 1 and Bhaskarappa v. The Collector of North Kanara I.L.R. (1879) Bom. 452 which were referred to with approval in The Secretary of State for India v. M. Krishnayya I.L.R. (1905) Mad. 257. As pointed out by Mr. Justice West in Bhaskarappa v. The Collector of North Kanara I.L.R. (1879) Bom. 452 though the introduction of British rule did not extinguish the private rights already acquired the principle from which we must start is that waste lands belong to the State. This, however, does not prevent Mirasidars from showing that by usage and custom they have a proprietary interest in the waste lands of a village and that the rights of Government are controlled by their rights. No doubt the right of the Government to see that lands do not lie waste while there are persons who are willing to engage with Government and cultivate the lands entitles them to grant lands to strangers if the Mirasidars are unable or unwilling to bring waste lands under cultivation, but when they are willing and bona fide apply for waste lands, it is difficult to see how their claims can be. rejected.
177. I have hitherto dealt with waste lands in general because it seems to me that Gramanatham is only one of the kinds of poramboke and there is no difference in the principle between the rights of Mirasidars to the various kinds of waste. So far as Natham is concerned, it is land which has been set apart for erection of dwellings for Mirasidars and the Ulkudi ryots and also for village servants (the Cheri being the portion set apart for Panchamas and 'Untouchables'). It was in all probability the original homestead of the settlers and the view taken by the Government in the G.O. of 1872 already referred to by me was that it was communal property of the villagers. I am unable to accept the argument of Mr. Grant that though Mirasidars may have preferential rights as regards cultivable waste the unoccupied Natham is the absolute property of the Government and can be granted to anybody it pleases without reference to the needs of the Mirasidars. I am also unable to accept the contention of Mr. Sreenivasa Aiyangar that the Gramanatham being land which cannot under any circumstances be assessed the Government can have no right to dispose of the Natham as the right to claim revenue is the basis on which the right of interference by Government in Mirasi villages stands. The Government has always the paramount right of disposing of waste lands subject of course to such vested rights. (either in Mirasidars or communities) as may be proved to exist. In Mirasi villages the division and allotment of waste was left to the Mirasidars as parties entitled to occupy the land and quite competent to divide it among themselves according to local custom and known rights (G.O., dated 8th March 1856). It seems to me that the Government on the dissolution of village communities stands for executive purposes in their place and is clothed with all the rights of management which originally vested in the Mirasidars jointly. There can be little doubt that, before the dissolution of the village communities, the affairs of the village were managed by the Mirasidars in common. They were responsible for the distribution of lands, and they. collected certain fees or Meeras from the villagers to meet the expenses of the village. The dissolution of the village communities naturally vested in the Government the administrative duties which were formerly exercised by the Mirasidars. The right of Government to allot lands to non-Mirasidars and to put such persons in the position of Ulkudies also gave the. Government an interest in the Natham for, as a corollary to that right, the right of Government to grant sites in Nathams followed. It would be against all principle to hold that, though the Government can confer waste lands on ryots, they cannot give the ryots sites in the Natham to build on. The Government has, therefore, a double right in the Natham. One is the right of superintendence over the Natham which originally vested in the Mirasidars collectively and the other is to grant sites on the unoccupied portions of the Natham to ryots to whom they grant waste lands.
178. I do not think Courts ought to attach much weight to the argument that any recognition of the rights of the Mirasidars would work a great hardship on other sections of the community. There can be little doubt that Mirasi rights are capable of abuse but the remedy is by legislation. As observed by Innes, J. in Fakir Muhammad v. Tirumala Chariar I.L.R. (1876) Mad. 205 the estimate of the conduct of the Mirasidars in this respect would have no bearing on the question of their rights.
179. A review of the authorities leads me to the conclusion that the mere fact that Government grants the whole or any portion of unoccupied Gramanatham to strangers is no ground for holding that the preferential rights of the Mirasidars are extinguished in cases where the Mirasidars have proved the unoccupied Natham in the village has been used by them as, communal property or has been treated by the Government as such. In considering whether the Mirasidars have anything more than the ordinary rights of preference which are conferred on non-Mirasidars by the Darkhast rules framed by the Government, it is difficult to ignore the following facts:
The resolution of the Court of Directors in 1844 and the Government Order in 1872;
(2) The acknowledged fact' that Mirasidars had a right to levy Tunduwaram which has been defined by the Board of Revenue in their Minute of the 5th January 1818 as 'the clear landlord's rent' and by Mr. Maclean in his Manual of Administration as 'the profits of the Mirasidar owner after paying Government dues'
(3) The award of compensation to Mirasidars where waste lands were acquired;
(4) Decrees of Court granting relief to Mirasidars in suits for ejectment which necessarily presuppose the possession of an interest in immoveable property; and
(5) The framing of separate Darkhast rules for the Chingleput District in 1869 and the deliberate distinction between Mirasi and other villages in the previous settlements of the District and in the Standing Order No. 39 of the Board of Revenue issued in 1878 where 'Collectors are directed to assert the prerogative of Government by making it known that except in Zamindari villages, Mirasi villages and villages which are private property sites in Gramanatham cannot be appropriated without permission.' I find myself unable to hold as a general rule that the preferential right of the Mirasidars in Mirasi villages is the same as that of ryots in non-Mirasi villages.
180. The materials before me are not sufficient to enable me to hold that the Mirasi system is a well defined tenure with certain well recognised incidents so as to enable one in every case to start with the presumption that the Gramanatbam is the exclusive property of the Mirasidars. The rights of Mirasidars in the various administrative districts into which the territory formerely known as Tondaimandalam was divided after British occupation have not been uniformly recognised by the Government and while in some districts the Mirasidars' claims dwindled down into a mere preferential right they were more extensive in others. There can be little doubt that the ryotwari system introduced by the East India Company dealt a very severe blow on the communal holding of property and destroyed village autonomy to a considerable extent. The granting of separate Pattas and the right claimed by Government to confer occupancy rights on non-Mirasidars in case Mirasidars refused to engage or committed default introduced radical changes in the communal principle. As observed by Sankaran Nair, J. 'it is now difficult to say whether there is any presumption of Mirasi right in any district or to what extent the village community have succeeded in preserving their rights'.
181. The nature and extent of Mirasidars' rights over waste in any particular district or portion thereof must be proved in each case and I do not think that it can be laid down as an abstract proposition of law that the right to eject grantees from Government of sites in the Natham or Cheri follows as a matter of course. Where, however, Mirasidars prove that they have been enjoying the Natham as common property or that by custom or user they acquired rights over it, the Mirasidars have the undoubted right of requiring the Government to recognise such rights and of ejecting persons brought on the Natham or Cheri by Government in violation of their rights.
182. The reference to the Full Bench is general and I do not think it necessary to find whether in the present case the Mirasidars have proved their alleged rights. This is a matter for the Divisional Court.
183. To conclude I am of opinion that
(1) In Mirasi villages the rights of Government over waste (including Natham and Cheri) are subject to the rights of the Mirasidars;
(2) The nature and extent of such rights are not uniform throughout the Presidency out vary, and the onus is on the Mirasidars to prove that any specified incidence attaches to Mirasi. rights in any particular district, there being no presumption that Gramanatham is the exclusive property of the Mirasidars;
(3) The rights of Mirasidars over waste are not extinguished by the mere fact that the Government grants Pattas to strangers; and would answer the reference accordingly.