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The State of Madras Represented by the Collector of East Godavari at Kallinada Vs. Sree Raja Ravu Venkata Kumara Mahipathi Surya Rao Bahadur Garu Maharajah of Pithapuram Trustee of Shree Rajah Ram Venkata Mahipathi Gangadhara Rama Rao Bahadur Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberAppeal Nos. 93 and 111 of 1947 and Transferred Appeal Nos. 251 to 257 of 1948
Judge
Reported inAIR1952Mad510; (1951)IMLJ454
ActsMadras River Conservancy Act, 1884 - Sections 16 and 25; Code of Civil Procedure (CPC) , 1908 - Sections 80 - Order 1, Rule 10; Transfer of Property Act, 1882 - Sections 117
AppellantThe State of Madras Represented by the Collector of East Godavari at Kallinada
RespondentSree Raja Ravu Venkata Kumara Mahipathi Surya Rao Bahadur Garu Maharajah of Pithapuram Trustee of Sh
Appellant AdvocateGovt. Pleader, ;V. Balakrishna Eradi and ;C. Durgabai, Advs.
Respondent AdvocateA. Sundaram Iyer, ;Ch. Ramakrishna Rao, ;V. Sethumadhava Rao and ;K. Ramamurthi, Advs.
Disposition Appeal dismissed
Cases ReferredSecretary of State v. Venkatananisimha Naidu
Excerpt:
civil - compensation - sections 16 and 25 of madras river conservancy act, 1884, section 117 of transfer of property act, 1882 and section 80 and order 1 rule 10 of code of civil procedure, 1908 - appellant challenged validity of order of granting compensation - properties of respondents submerged by river and reformed after years but conservator of rivers refused to give permission to cultivate those lands - court below held that respondents entitled to compensation for inability to cultivate due to refusal of permission - respondents cultivated suit properties continuously for more than sixty years before land submerged by river - reformation due to conservancy work of government would not take away title of owners of reformed land - held, no reasons to interfere with compensations or.....panchapakesa ayyar, j. 1. these are nine connected appeals, a. s. nos. 93 & 111 of 1947 being appeals by the opposite parties to o. s. no. 61 of 1944 on the file of the sub-court, amalapuram, & the other seven appeals having been originally filed in the district court, east godavari, & got transferred here as the points involved in those appeals were the same as those in the first two appeals. of these 8 suits, covered by the 9 appeals, 4 were filed by the maharajah of pithapuram, his son the kumararajah, in whose favour he had executed a settlement, & his daughter-in-law the yuvarani, who was the lessee in respect of the suit lands. these four suits are o. s. nos. 34 of 1941, 29 of 1943, 14 of 1944 & 61 of 1944. 10 those suite the plffs. had alleged that the two blocks of land shown in.....
Judgment:

Panchapakesa Ayyar, J.

1. These are nine connected appeals, A. S. Nos. 93 & 111 of 1947 being appeals by the opposite parties to O. S. No. 61 of 1944 on the file of the Sub-Court, Amalapuram, & the other seven appeals having been originally filed in the District Court, East Godavari, & got transferred here as the points involved in those appeals were the same as those in the first two appeals. Of these 8 suits, covered by the 9 appeals, 4 were filed by the Maharajah of Pithapuram, his son the Kumararajah, in whose favour he had executed a settlement, & his daughter-in-law the Yuvarani, who was the lessee in respect of the suit lands. These four suits are O. S. Nos. 34 of 1941, 29 of 1943, 14 of 1944 & 61 of 1944. 10 those suite the plffs. had alleged that the two blocks of land shown in the piaint schedule had been formerly 'ryoti' lands of the Pittapuram Zamindari & part of Lankala Gannavaram village, adjoining the Vynatheyam branch of the river Godavari, & that the lands had been cultivated till fasli 1325, that is, till about 1915, that the Godavari submerged those lands & cultivation therein had to be abandoned, that by about 1935 or so the lands began to be re-formed 'in situ' owing to the river receding & so, the first two plffs. leased out the 17 acres 90 cents of the suit lands thus reformed to the third plff. on a rental of Rs. 455-5-6 by an order dated 29-9-1940, & that the third plff. held an auction for the lease of the above lands publicly & got bids for Rs. 10,000 on 28-9-1940 after she had applied to the conservator of Rivers, East Godavari, who was the East Godavari Executive Engineer, Head Works Division, Dowleswaram, under the Govt. of Madras, for permission to clean the 'nanal' & cultivate the lands, but the conservator of Rivers refused such permission for this and the three succeeding years covered by the four suits, improperly & illegally, & that, in any event, the Government became liable to pay the 'compensation' to the plffs. under Section 16, Madras River Conservancy Act, VI (6) Of 1884, or ,in the alternative, to pay 'mesne profits' or 'damages' for such deprivation of cultivation.

2. In O. S. No. 34 of 1941 (covered by A. S. No. 256 of 1948) the plffs. claimed Rs. 3,760/- as compensation under Section 16 of Act VI (6) of 1834 or as damages & mesne profits for 1940-41. In O. S. No. 29 of 1943 (covered by A. S. No. 255 of 1948) they claimed damages of Rs. 3,500/- Rs. 455-5-6 for plffs. 1 & 2 & Rs. 3,044-10-6 for plff. 3, for the year 1941-42, as compensation under Section 16 of Act VI of 1884, or as damages & mesne profits. In O. S. No. 14 of 1944 (covered by A. S. No. 257 of 1948) they claimed the same amount of Rs. 3,500 as compensation under Section 16 of Act VI (6) of 1884, or as damages & mesne profits for the year 1942-43. In O. S. No. 61 of 1944 (covered by A. S. No. 93 of 1947) they claimed Rs. 10,000/- as compensation under Section 16 of Act VI (6) Of 1884, or as damages & mesne profits for the year 1943-44 claiming Rs. 455-5-6 for plffs. 1 & 2 & Rs. 9,635/- for plff. 3 & giving up Rs. 80-5-6- In O. S. Nos. 29 Of 1943, 14 of 1944 & 61 Of 1944, only the Province of Madras, represented by the Collector of East Gofiavari had been made the deft., & notice under Section 80 C. P. C, alone was given. In O. S. No. 34 of 1941, though the conservator of Rivers, East Godavari. namely, the Executive Engineer, Head Works Division, Dowleswaram, was made deft. 2 the Province of Madras being the 1st deft., notice under Section 80 C. P. C. alone was given to the Government and notice under Section 25 of Act VI (6) of 1884 was not given to the conservator of Rivers. In O. S. No. 13 Of 1944, Ravi Subbarayudu, the owner of Zamindari 'ryoti' land in Lankala Gannavaram village, near the lands covered by the other four suits & said to have been submerged like them in 1915 or so & become fit for cultivation in 1940 claimed a compensation of Rs. 350 under Section 1G of Act VI (6) of 1884, for the year 1941-42, owing to refusal of permission to cultivate & made only the conservator of Rivers East Godavari the sole deft. He gave notice to the conservator, under Section 25 of Act VI (6) of 1884. In O. S. No. 11 of 1945, covered by A. S. No. 252 of 1948. the same Ravi Subbarayudu claimed a compensation of Rs. 500 for the same land for the year 1943-44 owing to refusal of permission to cultivate. In O. S. No. 41 of 1943, covered by A. S. No. 253 of 1948. one Dokka Jagganna, the owner of a Zamindari 'ryoti' land of Lankaia Gannavaram village, adjoining the lands in the other suits, said to have been submerged in 1915 or so & Become fit for cultivation in 1940, claimed damages of Rs. 1,100/- under Section 16 of Act VI (6) of 1834 for the year 1941-42 for refusal of permission for cultivation, the sole deft, was the conservator of Rivers, & he was given notice under Section 25 of Act VI (6) of 1884. In O. S. No. 42 of 1943, one Jogganna claimed compensation of Rs. 1,850 under Section 16 of Act VI (6) of 1884, against the conservator of Rivers in respect of another land submerged by the Godawari in 1915 or so & reformed in 1939 or so, owing to refusal of permission to cultivate in 1941-42. Subbarayudu, Jagganna, & Joganna had filed their suits originally in the District Munsifs Court, Razole, & they had been transferred to the Sub-Court, Amalapuram, for trial along with the other four suits filed there covering the same questions.

3. All these suits were vigorously contested. The main points of the contention by the Govt. in all the suits were (1) that the plots were not proved to be re-formations 'in situ' & that, at any rate, the plot E. P. G. H. I concerned in the four suits, O. S. Nos. 34 of 1941, 29 of 1943, 14 of 1944 & 61 of 1944, was an independent formation in the bed of the Godavari a navigable & tidal river, & that the title to this plot, at any rate, belonged only to the Govt.; (2) that the re-formations in the other cases, even if true, were not spontaneous re-formations 'in situ', but a direct result of protective & conservancy works undertaken by the Govt. through the conservator of Rivers, &, so, the title to such re-formed lands would vest only in the Govt.; (3) that the orders of the conservator of Rivers refusing permission to cultivate were 'bona fide' & proper & in the interests of the River & the public, & so, no compensation or damages could be claimed; (4) that, even otherwise, no damages could be claimed by the plffs. as the lands covered by the suits were overgrown with 'nanal' & unfit for tobacco or other cultivation (contrary to the allegations in the plaints) & would have fetched very little, if at all anything, if the 'nanal' were cleared ft the lands were cultivated with tobacco, and that they would not have fetched even the cost of clearing the 'nanal' & that the damages claimed were, in any event, exorbitant & fanciful, not even Rs. 10 to 15 per acre being got on similar adjoining lanka lands free from nanal in auctions held by Govt. in these very years. Regarding the four suits filed by the Maharajah of Pithapuram & two others, the Govt. raised two more contentions, namely, that the suits were not maintainable as no notice had been given to the Conservator of Rivers under Section 25 of Act VI (6) of 1884, & as the Govt. would not be liable for compensation except through the Conservator of Rivers under Section 25 of the Act, & that the alleged lease to the third plff., the Yuvarani of Pithapuram, was a fraud on the public in order to prevent the actual cultivating tenants from getting 'ryoti' rights In the lands by giving them fictitiously to this lady of the zamindar's own family and that the alleged bids for Rs. 10,000 for these lands were bogus & nominal & would not afford any standard for assessing the compensation or damages, if any, caused by the refusal of permission to cultivate.

4. The learned Subordinate Judge, Amalapuram, in an exhaustive judgment, considered all the contentions of all the parties in all the suits. He he'd that the orders of the conservator of Rivers refusing permission to cultivate were 'bona fide' & in the interest of the conservancy of the rivers, & of the public, as such cultivation would have been prejudicial from the conservancy point of view, & that, therefore, the orders were neither unauthorised nor 'ultra vires' nor 'mala fide', but that reasonable compensation could be claimed by the plffs. for the inability to cultivate the lands, consequent on such refusal of permission, under Section 16 of Act VI (6) of 1884 itself. He found, after a local Inspection & after a thorough discussion of the evidence, including the survey plans & sketches & their comparison, that all the suit lands were reformations 'in situ' of old zamindari 'ryoti' lands in existence for more than sixty years before they were submerged by the Godavari in 1915 or so, they having completely re-emerged in 1939 or 1940. He held that the plot E. F. G. H. I. was also such a re-formation 'in situ' of old zamindari 'ryoti' lands belonging to the plffs., either by grant or at least by adverse possession uninterruptedly for more than sixty years, & that plot E. F. G. H. I was not part of the bed of a tidal & navigable river, & so, even if it was not a re-formation 'in situ' it would only belong to the plffs., the riparian owners' & not to the Govt. He found further that even If the plot E. F. G. H. I was not a re-formation 'in situ' & was an independant formation in a tidal & navigable river, as urged by the Govt., it would still belong to the plffs. being a 'lateral accretion, & not a vertical accretion.' He held after a careful discussion of the entire oral & documentary evidence regarding the income from tobacco cultivation in similar lanka lands & from his local inspection of the suit lands, that if permission had been given to cultivate them the net annual income per acre would be one 'putti' of tobacco, for the majority of the lands, & he fixed the value of that one 'putti' at Rs. 100 in 1940, Rs. 125/-in 1941, RS. 150/- in 1942, Rs. 175/- in 1943 & Rs. 200 in 1944. He gave slightly higher rates of income for Oorapaya lands, & the plot E. F. G. H. I.

5. He was of the opinion that in O. S. No. 34 of 1941 deft. 2. the conservator of Rivers, was an unnecesary party, as deft. 1, the Govt., which was liable to pay compensation, had been made a party & no independent tort had been proved against deft. 2 & so dismissed the suit as against deft. 2 & granted a decree only against deft. 1. He held in O. S. No. 34 of 1941, 29 of 1943, 14 of 1944 and 61 of 1944, that the suits were all maintainable even though a notice under Section 25 of Act VI (6) of 1884 had not been given to the conservator of Rivers, & that officer had not been made even a party in three of the suits. According to him, a suit under the general law against it the Govt. for damages & mesne profits, & even for compensation under Section 16 of Act VI (6) of 1884, was not precluded by Section 25 of Act which was only an enabling & not an exhaustive section.

6. In the end, he gave the plffs. In O. S. No. 34 of 1941 a decree' for Rs. 2,385-8-0 as damages & Rs. 374-13-0 as proportionate costs, & dismissed the rest of the claim with proportionate costs of Rs. 151-6-9. A. S. No. 256 of 1948 Is the appeal by the Govt. against that decree. The plffs. have filed a memo, of cross-objections for Rs. 2,614-3-9 the disallowed amount & costs subsequent Interest. In O. S. No. 29 of 1943 he gave a decree to the plffs. for Rs. 2,833-4-0 as damages & Rs. 388-5-3 as proportionate costs & dismissed the rest of claim with proportionate costs of Rs. 44-9-9. The Govt. have filed appeal No. 255 of 1948 against the decree, & the plff. have filed a memo, of cross-objections for Rs. 1,427-0-11, the disallowed amount, costs & subsequent interest. In O. S. No. 14 of 1944 he gave the plffs. a decree for Rs. 3,134-4-0 as damages & Rs. 428-10-1 for proportionate costs & dismissed the rest of the claim with proportionate costs of Rs. 24-8-1. The Govt. have filed A. S. No. 257 of 1948 against the decree to the plffs. have filed a memo, of cross-objections for Rs. 968-7-11 being the disallowed amount, costs & Interest. In O. 8. 61 of 1944 he granted a decree to the plffs. for Rs. 3,580 as damages & Rs. 399-0-11 as proportionate costs & dismissed the rest of the claim with proportionate costs of Rs. 342-6-5. The Govt. have filed A. S. No. 93 of 1947 against the decree, & the plffs. have filed A. S. No. 111 of 1947 for Rs. 6,773-5-8, for the disallowed amount, costs & interest. In O. S. No. 13 of 1944 he granted the plff. a decree for Rs. 300/-as damages with Rs. 53-10-0 as proportionate cost & dismissed the rest of claim with proportionate costs of Rs. 3-9-2. The Govt. have filed an appeal, A. S. No. 251 of 1948 against the decree. There is no memo, of cross-objections. In O. S. No. 11 of 1945, he granted the plff. a decree for Rs. 400/- as damages with proportionate costs of Rs. 67-0-10, & dismissed the rest of the claim with proportionate costs of Rs. 5/-. The Govt. have filed A. S. No. 252 of 1948 against the decree. There is no memo, of cross-objections. In O. S. No. 41 of 1943 he gave the plff. a decree for Rs. 750 as damages & proportionate costs of Rs. 120-9-0 & dismissed the rest of the claim with proportionate costs of Rs. 23-9-2. The Govt. have filed A. S. No. 253 of 1948. There is no memo, of cross-objections. In O. S. No. 42 of 1943 he gave the plff. a decree for Rs. 1,200 as damages & Rs. 177-13-7 as proportionate costs, & dismissed the rest of the claim with proportionate costs of Rs. 43-9-6. The Govt. have filed A. Section 254 of 1948 against the decree. There is no memo, of cross-objections.

7. We have perused the entire records, & heard the learned Govt. Pleader for the Govt. & the learned counsel for the plffs. The learned Govt. Pleader raised several contentions. His first contention was that O. S. No. 34 of 1941, 29 of 1943, 14 of 1944 & 61 of 1944 were not maintainable & should have been dismissed as the requisite notice under Section 25 of Act VI (6) of 1884 had not been given to the Conservator of Rivers; & as no compensation under Section 16 for refusal of permission to cultivate the lands could be claimed except as provided for under Section 25 of Act, & that the suits had become barred by limitation under Section 25. We cannot agree. It is, no doubt, true that if In a particular Act a particular mode Is exclusively prescribed for claiming the compensation claimable under the Act, that mode, and 'no other' should be resorted to. But where as In Section 25, there is no reference to the compensation claimable under Section 16, & Section 16 & other sections of Act VI (6) of 1884 nowhere say that the compensation claimable under Section 16 shall only be claimable by a suit brought against the conservator of Rivers, the right of the plffs. under the general law to sue the Govt. for such compensation, or for damages or mesne profits, cannot be taken away, & will remain as supplementing the right under Section 25 of the Act. So no question of non-maintainability, or limitation arises. As this point has not been apparently covered by any decision of this Court, it is better to discuss the point a little in detail.

8. Section 16 runs as follows:

'Whenever under Section 11, 12, 13 or 14 the conservator of Rivers refuses the owner or occupier of any land permission to plant, cultivate or build on any land, or requires him to remove any groynes buildings, constructions, plantations, grasses, trees or other obstructions or works existing at the time or the survey or subsequently authorised by the conservator of Rivers, such owner or occupier shall be entitled to compensation for any damages sustained by him by reason of such requirement or refusal of permission.

Section 25 runs as follows:

'No suit shall be brought against any conservator, surveyor or subordinate, or any person acting under his direction, for anything done or intended to be done under this Act until after expiration of three months next after notice in writing shall have been delivered or left at the office of such conservator, surveyor, subordinate or person or at his place of abode, explicitly stating the cause of action & the name & place of abode of the intended plff. & of his agent in the cause if any, & upon the trial of such suit the plff. shall not be permitted to go into evidence of any cause of action except such as is stated in the notice so delivered, & unless such notice be proved the court shall find for the deft; & every such suit shall be commenced, within six months next after the accrual of the cause of action.'

It will be obvious, even at a cursory glance, that Section 25 does not say that the compensation claimable under Section 16 can only be claimed by a suit brought under that section against the Conservator, surveyor or subordinate or any parson acting under his direction. It is also not reasonable to hold so, as the section does not refer to the word 'compensation' at all or say that that shall be the only mode of claiming the compensation claimable under Section 16. As the lower court has remarked, it is immaterial from the point of view of the plffs. whether a decree is passed against the Govt. or the conservator of Rivers, or against, both, & that, while it is open to the plffs. to make both parties or one of them a party to a suit for compensation, the sum awarded as compensation has to be recovered only from the Govt. as this represents only compensation under Section 16 of the Act for an act lawfully done by the conservator of Rivers under powers vested in him under Act VI of 1884, & not any compensation for independent torts committed by the conservator of Rivers for which the Govt. is not liable. It is clear that Section 25, while undoubtedly covering a claim for compensation under Section 16, as contended by the learned Govt. Pleader, may also conceivably cover other claims against the Conservator, surveyor or subordinate or person acting under his direction, besides the compensation contemplated in Section 16. So, two conclusions follow. The first is that the compensation claimable under Section 16 can be claimed by a suit under Section 25 after a notice under Section 25, against the Govt. & the conservator of Rivers though if the conservator is added the conditions prescribed in Section 25 for the period of notice & for limitation will operate. The very clause,

'No suit shall be brought against any Conservator, surveyor or subordinate or any person acting under his direction?in Section 25 shows that it is a section Intended to protect the conservator, surveyor, or subordinate or person acting under his direction, & not one intended to exclude the liability of the Govt. for compensation under Section 16, except by a suit under Section 25. Under Section 80, C.P. C., no suit shall be instituted against the Govt. or against a public officer in respect of any act purporting to be done by such public officer In his official capacity except under the terms regarding notice etc., prescribed by that section. It is clear to us that the Conservator of Rivers, East Godavarj who is no other than the Executive Engineer, Head works, Dowleswaram Division, is a 'public officer', & that his acts in these suits were undoubtedly purported to be done by him as such public officer in his official capacity. So a suit for compensation under Section 16 of the Act VI (6) of 1884, can, in our opinion be brought against Govt. alone under Section 80, Civil P. C. without adding the conservator. If, the conservator is added, the notice under Section 25 will become necessary. Of these four suits, the conservator was added only in O. S. No. 34 of 1941. We agree that no decree could be given against him in that suit as the notice required under Section 25 of Act VI (6) of 1884 was not given to him. But the lower court held him to be an unnecessary party in that suit, & dismissed the suit as against him. We see no legal objection to the lower courts having granted a decree against deft, l (Govt.) who had been given proper notice under Section 80, C. p. C.. The decree will not be affected by the addition of deft. 2 in the plaint as he had been held to be an unnecessary party to the suit & there was no decree against him.

9. The second conclusion is that Section 25 of Act VI (6) of 1884 may conceivably cover claims to compensation against a conservator, surveyor Or subordinate or any person acting under his direction though such compensation may not In all cases be claimable against the Govt. being compensation for damage caused by the negligent & careless acts of these officials & subordinates in carrying out their duties under the Act albeit not 'mala fide.' So we overrule this contention.

10. The next contention of the learned Govt. Pleader is that the lower court went wrong in holding that the Godavari at the spot where the suit lands, especially the plot E. P. G. H. I, are located is not a tidal & navigable river whose bed vests in the Govt. After an exhaustive consideration of the entire evidence in the case we agree with the learned' Govt. Pleader that the lower Court went wrong in this respect though it does not affect the decrees in these suits, & that really the Godavari at this spot is a tidal and navigable river whose bed belongs to the Govt. We have had occasion in a recent appeal, A. S. No. 120 of 1947, between more or less the same parties, to deal with this question regarding the Godavari river only a furlong away from the present spot, concerning some islands formed near Patha Gannavaram, on the other side of the Vynatheyam branch of the Godavari to Lanka Gannavaram. The conclusion we arrived at regarding the river & the river bed in this case also is the same and is based on the same grounds.

11. The law regarding the matter is well settled, & may be stated broadly in five propositions, as we did in A. S. No. 120 of 1947: (1) The bed of a navigable river in any part of India whether tidal or not, is vested In the Govt., & not in the Zamindar or other private persons owning lands on both sides of the river, unless it has been granted to such private individual. The Privy Council has laid down this clearly In 'Maharajah of Pithapurani v. Province of Madras', I. L. R. (1949) Mad. 675. The English common law rule that the bed of non-tidal rivers, even though they are navigable, belongs to the riparian proprietors, does not apply to Madras State. (2) To create a title to the river bed in the Govt. the river should be navigable at that part of it where the disputed plots are situated. (3) The ownership of the bed of the river would depend upon its character in 1802, the time of the permanent settlement & the grant of the adjacent land to the plff. 'Province of Madras v. Jagannadha Raju', ILR (1945) Mad 420. (4) A river in India is not navigable in the legal sense unless it is navigable throughout the year, though it need not be navigable for a portion of the day, as at low tide. (5) Facilities for passage of large river crafts, which may not be capable of rising to the dignity of ships, seem to be generally considered sufficient to call a river affording such facilities a navigable river. 'Secretary of State v. Venkatananisimha Naidu', 11 M. L. W. 256.

12. The evidence in this case clearly shows that river craft carrying firewood etc., can freely navigate in this portion of the river at all times of the year except during low tide, & even shows that there is tidal action at this place. We hold that the Vynatheyam, passing between the villages of Lanka Gannavaram & Patha Gannavaram, is a navigable and tidal river at this spot, & that its bed belongs to the Govt., though, of course, that will not affect the right of a private owner of lands submerged by that river to those lands When they are re-formed 'in situ' or to 'lateral accretions' to such lands. Till the year 1866 Lanka Gannavaram & Path a Gannavaram admittedly formed part of one single village. In that year, for purposes of revenue convenience, the single village was divided into two separate villages. In A. S. No. 120 of 1917 we held that the river Vynatheyam, at a spot a furlong from the suit plots & adjoining Patha Gannavaram on the opposite side, was a navigable river even at the time of the permanent settlement in 1802. we considered that a river navigable throughout the year now except at low tide should have been navigable then, the Dowleswaram anicut having even diminished the quantity of water below it, & the river above it being navigable for many miles even now & for years before. In 'Province of Madras v. jagannatha', a Bench of this Court held that the Vasishta branch of the Godavari from which the Vynstheyam takes oil' only some three miles from this spot, should have been navigable in the year 1802. There have been also some other cases holding the river Godavari very near the suit plots to be navigable. The oral evidence in the case of disinterested & credible persons, also proves this.

13. But this conclusion of ours regarding the Vinatheyam river, differing from the lower court, will not help the Govt. much in these suits as we are satisfied, after an exhaustive perusal of the evidence on record, that the lower court was right in considering all the suit plots to be only reformations 'in situ' of ancient zamindari ryoti lands submerged by the river Godavari in 1915, after having been continuously cultivated for more than 60 years. That will apply also to the plot E. P. G. H. I. which too we are satisfied, is only a reformation 'in situ' of former zamindari 'ryoti' land. The contention of the learned Govt. Pleader, that the plot E. P. G. H. I is still river bed, & has not yet become a formation, cannot be upheld in view of the express recital in para 5 of the written statement filed by the Govt. in O. S. No. 61 of 1944 Which admits that the plot E. P. G. H. I. has been formed, though it calls it 'an independent formation' in the bed of the river. This plot E.F. G.H.I, is only two or three feet lower in level than the rest of the plots claimed in the suit, & is more than 16 feet above the level of the Godavari, & not a drop of water is found anywhere on this plot. So, we need not consider the further contention of the learned Govt. Pleader that the lower court erred in recognising the title of the plff. to this plot on the ground of its being a lateral accretion, though it was not set up in the plaint Si was covered only by an issue & though it was not consistent with the allegation of re-formation 'in situ'. We are of opinion that the question of lateral formation, haying been raised by an issue & covered by the evidence, could have been considered by the lower court under the law though it is not quite consistent with the plffs'. story of re-formation 'in situ' & though it is unnecessary for supporting the plffs'. case as they have fully proved their case that this plot too is only re-formation in situ'. We see no point in the learn-ed Govt. Pleader's claiming that the re-formations 'in situ' were partly due to the conservancy work: done by Govt. That will not take away the title of the owners to the re-formed lands, even if true, any more than the title of the owner of a stolen or lost jewel is lost by him before the Govt. police officers recovered it.

14. The next contention of the Govt. Pleader was that when the orders of the Conservator of Rivers were held by the lower court itself to be fully justified in the interest of river conservancy, & to be necessary and proper, the plffs. should not have been given any damages. We cannot agree. Section 16 of Act VI (6) of 1884 expressly allows compensation for such rightful refusal of permission to cultivate, & that right to compensation has not been taken away- by any other Act or Ordinance or circumstance. The mere fact that orders refusing permission for cultivation were proper & in public interests cannot take away the private parties' right to compensation, as no private party need shoulder the whole burden of conferring such a benefit on the public. Thus a plot may be required for constructing defences, or a hospital, or a prison, or a school, or a court, or a cremation ground, & yet the Land Acquisition Act, under which such lands are acquired usually, not only awards compensation to the private party whose land is acquired for such public purposes, but gives him 15 per cent extra for compulsory acquisition. So, this contention cannot hold good.

15. The last contention of the learned Govt. pleader was that the 'quantum' of compensation awarded was excessive & ought to be drastically reduced. The learned counsel for the Maharajah-& others who have filed three memoranda of cross objections & A. S. No. 111 of 1947, argued on the other hand, that the compensation awarded by the lower court was totally inadequate & that the entire compensation claimed in those four suits ought to have been granted, especially since the highest bid for the lease was Rs. 10,000/- every year. The learned Government Pleader attacked those bids as bogus & nominal, & even the lease to plff. 3 as a fraudulent act intended to prevent the actual cultivating ryots from getting 'ryoti' rights in those lands. We are not very much concerned in this case with the alleged fraudulent act of the zamindar in giving a lease to plff. 3, the Yuvarani of Pittapuram, who has neither bulls nor ploughs of her own & is not likely to cultivate those lands herself. Such leases to members of the zamindar's family are too numerous, & of too long a practice, to be suddenly declared null & void. On principle, there is nothing in law to prevent a zamindar from giving a lease to a member of his family especially in these days when zamindaries are being abolished & zamindars levelled, down to the status of common men. Nor need a lessee show bulls & ploughs of His own or cultivate the land himself, before he can claim the leasehold lights granted to him validly. In fact many Brahmins & Vysias & others, who do not own ploughs or bulls & do not intend to cultivate the lands themselves, have got leases in their names & those leases' cannot be attacked as invalid for those reasons. The learned Govt. Pleader did not, therefore, seriously press this portion of his argument. He pressed the other portion of his argument, namely, that the bids were all bogus & nominal ones, & that the auctions were simply held to bolster up the suit claims, that not a pie was paid by the bidders, that the auctions themselves were held only after applications for cultivation had been made in 1940 & it was informally known that they would be refused, & that the auctions were held year after year thereafter in spite of the knowledge that permission to cultivate would be refused in public interests, would all show the bids to be bogus & nominal. We agree regarding this, for the reasons urged by the learned Govt. Pleader which appeal to us as true & valid.

16. But his further contention that no compensation or damages should have been awarded to the pin's, or, at the most, only some small amount, not exceeding Rs. 25/- per acre aoeg hot appeal to us. No doubt, one witness examined by the plffs. admitted that he sustained loss by clearing similar 'lanka' land of 'nanal' & cultivating it with tobacco. But that was an exceptional case and cannot be relied on. No doubt also, some of the witnesses like P. W. 7, speaking to an income of Rs. 200/- or Rs. 300/- per acre by tobacco cultivation of similar lands, were speaking of lands in Kapileswaram Estate, 17 or 20 miles from this place. It is also true that the Govt. realised only Rs. 7-11-0 to 73-12-0 per acre by leasing out the 'Lanka' lands in 'Mondapulanka, Kottapalli lanka', Manapalli Lanka, Koderu lanka and Korugeru milli Lanka' similar to the suit lands, & situated only some 2 to 8 furlongs from the suit lands, though tobacco was raised in the lands in all those five 'lankas'. But Govt., it is notorious, realises much less in such leases than private parties do. There is no doubt that there is an element of surmise & guess in fixing the damages arising out of the refusal of the permission to clear the nanal & do tobacco cultivation on these lanka lands. There is also evidence to show that the normal net income per acre from such lands is only a 'putti' an acre. The lower court has considered all these factors when rejecting the contention of the Govt. for awarding no compensation, or a very small sum as compensation, & when rejecting the exorbitant sums (Rs. 300 to Rs. 560 per acre) claimed by the plffs. based on the bids & the evidence of P. Ws. 3, 4, 5, 6, 1, 8, 9, 11, 14, 15, 16 & others about the realisations from Kapileswarsm lanka and other lands farther away. It has carefully weighed the evidence on both sides & arrived at the figures it did after such weighing & after a local inspection. Generally, appellate courts are not expected to interfere with such careful assessment of figures by the trial Court, which has seen the witnesses & weighed every bit of evidence, oral & documentary & made also a local inspection. We do not see any reason to depart from that salutory practice in this case, especially as we too consider the figure fixed by him to be proper. In the end, therefore, we hold that the compensations, or damages, awarded by the lower court in all the cases were correct & proper, & do not deserve to be interfered with.

17. In the result, all the appeals & memo of cross-objections are dismissed with costs. Govt. given two months time to pay the costs.


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