1. These second appeals are brought against the judgment of the Subordinate Judge of Kumbakonam confirming the judgment of the District Munsif of Valangiman dismissing two suits instituted against the Secretary of State for India in Council for the recovery of portions of poramboke land comprised in Survey No. 95/2 corresponding to paimash N. 809 in the village of Govindapuram from which the plaintiffs were evicted by order of Government officers under the provisions of Act III of 1905, and for damages for the unlawful felling of trees standing upon the said land.
2. The village of Govindapuram is a whole inam village granted in 1809 by Pratap Singh Rajah Saheb, one of the former rulers of Tanjore. The entire village was granted to the inamdars ' in free tenure, exempt entirely from payment of revenue or rent,' which is the meaning of sarvamanyam. The original grant is not available but we have the title-deed (Ex. E) issued by the Inam Commissioner in 1865, wherein the grantee's title was acknowledged by the Government to the sarvamanyam village of Govindapuram claimed to be of 84.15 acres of dry land, 216.15 acres of wet land and 54.29 acres of garden land besides poramboke. The portions alleged by the defendant to have been encroached upon by the plaintiffs are classed as Sudra rudrabhumi or cremation ground and the substantial question to be now decided is whether upon the construction of the grant these portions passed to the grantees under the words ' besides poramboke'.
3. These words occurring in similar deeds of grant have been the subject of Judicial interpretation and in Venkataratnammah v. Secretary of State I.L.R. (1912) M 366 Benson and Sundara Aiyar, JJ., laid down that the effect to be given to them must depend on the evidence available in each case and the circumstances attending the grant. In the case that they were then considering, they held that as the stream in question was not a large one and was not connected with any system of irrigation maintained by Government and as the British Government had shown no intention at any time to derogate from the original grant, the channel, must belong together with other poramboke to the inamdar. At the same time, the learned Judges cited the case of Narayanaswami Naidu v. Secretary of State for India (1912) 24 M.L.J. 36 and expressed their concurrence with the view therein taken of the meaning of the words 'besides poramboke,' i.e., that they should not be interpreted as an acknowledgment by the Government of India of the inamdar's title to all kinds of poramboke In Narayanasami Naidu v. Secretary of State for India (1912) 24. M.L.J. 36 Benson and Bakewell, JJ., observed that ' it could never be supposed that the Government, in making a grant as a reward for services rendered included in the grant the property of private persons, or the communal property of the villagers such as temples, threshing floors, cattle-stands, burning-grounds or the like, or public roads, simply because they are included in the area of the village as shown in the village and survey accounts; and are not in terms excepted from the grant,' In the village of Govindapuram we find from reference to the Inam Register, Ex. XX, that, the entire area of the village being 441 acres 25 cents, 354 acres 99 cents consisted, at the time when the register was written up, of wet and dry fields, topes and gardens leaving 86 acres 26 cents to be deducted for poramboke. Below this there is a note that the poramboke consists of houses and backyards about 44 acres 37 guntas and 5 annas in local measure, and pathways, roads, irrigation channels, tanks, river, sites of pagodas, burning-ground, etc.
4. Now as regards public roads the Government has divested itself of its rights over them by declaring them under Section 49 of the Local Boards Act (V of 1884) to be vested in the District Board, a statutory body constituted for the maintenance of roads and for other objects of public utility. As regards irrigation channels rivers and tanks, the beds would, under the authority of Narayanaswami Naidu v. Secretary of State for India (1912) 21 M.L.J. 36 ordinarily remain vested in the Government, which under Act VII of 1865 has the control of irrigation in this Presidency. Lastly as regards sites of pagodas, burning-grounds, etc., which word 'etc,' must also include public threshing-floors, cattle-stands and unassigned house-sites and backyards, Government is the custodian of the rights of the public and could not be deemed to have permanently assigned over such property to individuals for their private use without a derogation from its trust. The legal title has all along been in the Government in respect of such communal land for the sake of convenience, and therefore the Government could, at the time of the grant, have assigned to the inamdar what rights it possessed in these sites; but it could not have done so without a violation of its trust to the community to preserve the land for communal use, and I think that we should not assume, without clear proof, that the Government intentionally committed a violation of trust.
5. The Lower Courts were therefore right in dismissing these suits and as the second appeals fail on the merits, without deciding the question of limitation, they must be dismissed with costs.
Sadasiva Aiyar, J.
6. In Secretary of State for India v. Baghunatha v. Thatachariar (1912) 24 M.L.J. 81 I said at page 34: 'The word 'Poramboke' is loosely used in many senses, Whatever land does not yield revenue to Government is usually known as poramboke though several kinds of lands may be included in it' So far as Narayanaswami Naidu v. Secretary of State for India (1912) 24 M.L.J. 36 decided that burning and burial grounds, temple sites and public roads remain vested in Government in trust for communal purposes, notwithstanding the grant of a whole Inam village including the porambake. I concurred with that opinion respectfully in Secretary of State for India v. Baghunatha Thatachariar (1912) 24 M.L.J. 31 and I still adhere to that opinion. So far as Narayanaswami Naidu v. The Seeretary of State (1912) 21 M.L.J. 36 decided that river porambokes and channel porambokes contained within the ambit of a sarvamanyam whole inam village did not pass to the inamdar by the grant, that opinion must be deemed to have been overruled by the recent decision of the Privy Council in the Urlam case. The present case, however, relates to burning-ground poramboke and that, in my opinion, continued notwithstanding the Inam grant of the village to vest in the Government as legal owner in trust for communal purposes. The legal ownership of Government as regards burial and burning ground porambokes and public-road-porambokes in Inam villages, is, no doubt, of a different character from its legal ownership of cultivable waste lands in ryotwari villages (legal ownership over the latter involving much larger powers of grant, auction-sale, ejectment, direct possession, subjection to various and indeterminate kinds of uses, etc., than their legal right of ownership in communal lands like burning grounds etcetera set apart for particular portions of the community); but both kinds of lands are the subject of the Government's legal ownership in a very real sense so far as trespassers are concerned. The contention of Mr. Ramachandra Aiyar, therefore, that the Sudra community is the legal owner even on the findings of the Lower Courts and that the Government had no right to eject his clients while his clients were in lawful possession, the Government being not the legal owner, cannot be upheld. The members of the Sudra community may form the objects of the trust but the trustee and legal owner is the Government itself. I therefore agree that the second appeals must be dismissed with costs.