Raghava Rao, J.
1. The question arising for determination in this second appeal is whether certain proceedings taken by the respondent before me, the Province of Madras represented by the District Collector of Krishna, Chilakalapudi under Section 7 of Madras Act III of 1905 are valid. The applt sued in the Ct of the Dist Munsif of Masulipatam for a declaration of his right to the plaint schedule land & for an injunction restraining the defendant from interfering with his enjoyment thereof by means of such proceedings or in any other manner. The land in question is part of survey No. 160/1 of Krithivennu village and the applt holds the entirety of the survey number under a patta from the zamindar, who is the owner of the village. The learned District Munsif decreed the suit subject to the rights of the villagers of the adjoining villages of Gollagudem, Seeta-napalli & Sangumudi to take their carts through, the suit land from 15th January to 1st July of each year, that being the period during which the land is not under cultivation and holds no crop. On appeal taken to the District Ct of Krishna at Masulipatam by the deft in which a memorandum of cross-objections was filed by the pltf--since both the pltf and the deft felt aggrieved by the decision of the learned Dist Munsif--the learned Dist Judge allowed the appeal & dismissed the memorandum of cross objections. The pltf has accordingly preferred this 2nd appeal.
2. There was a survey of the village of Krithivennu in 1925 as a result of which there was a plan prepared, Ex. D. 4, in which the suit land was shown as a crat-track. From 1925 to 1943 the land was used as a cart-track as found by the Cts below. There is no mention of the cart-track in relation to S. No. 160/1 in the A register of the village, Ex. P. 8. In fasli 1353 the pltf ploughed the land & thereupon the villagers made a representation to the Tahsildar that there was an encroachment by the pltf which deprived them of the use of the cart-track. The Tahsildar treated the act of the pltf as an encroachment and issued a B memorandum to him. It was followed by a notice of encroachment under Section 7 of the Act, as a sequel to which the suit out of which this. 2nd appeal arises came to be filed.
3. The sole & simple question on these facts is whether the deft has any right over the suit land such as can justify the proceedings taken by it under the Act. The way in which Mr. Eradi appearing for the Govt Pleader has put his point before me is that there is a presumption in favour of the Govt's ownership under Section 2 of the Act which has been left unrebutted by the pltf and which has been rightly given effect to by the learned Dist Judge. The section so far as material provides that,
'All public roads, streets, lanes & paths.......the beds of the sea.. .......& of rivers, streams......... & all canals & watercourses........save in so far as the same are the property-
(a) of any zamindar, poligar, mittadar......or any person claiming through or holding under any of them, or
(b) of any person paying shist,..... .to anyof the aforesaid persons, or
(c) of any person holding under ryotwari tenure...... are and are hereby declared to beCrown property except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights...... and to all customary rights legally subsisting.'
The land in question being the survey number in a zamindari village held by the pltf under a patta from the zamindar, I am perfectly clear that the saving of the section necessarily operates. Cart tracks in zamindaries presumably belong to the Zamindar concerned and prima facie the reversionary right relating to them vests in him.'
4. In regard to a channel poromboke included in the survey field held by a ryotwari pattadar from the Govt. the question arose before me in second appeal No. 180 of 1947' whether the presumption of Govt. ownership under Section 2 of the Act could arise. Relying upon 'Kalianna Mudali v. Secretary of State', 31 IC 982: AIR 1916 Mad 930 I held that,
'when rills run through patta land & the beds have not been separately demarcated as poromboke, the beds must be regarded as part of the patta land & not the property of the Govt, & the rills cannot be said to belong to the Govt.'
The same view must of course hold good in relation to cart-tracks running through patta land held from the Govt. 'A fortiori' to such a case is the present one where the land is a cart-track situate in a patta number held from a zamindar.
5. The right, if any, on the part of the villagers of Gollagudem, Seetanapalli & Sengamudi to use the suit property as a cart-track does not directly arise for consideration in this case. They are not parties to this litigation, & this decision shall not affect their rights.
6. The second appeal is accordingly allowedwith costs here & in the courts below. No leave.