Arnold White, C.J.
1. In this case the plaintiffs are inhabitants of a villaga called Nemathampatty and the defendants are also inhabitants of the same villaga. The matter in dispute is a pond or tank which may be described as the village pond of the village in question. It is said that the pond, as a matter of fact, is itself outside the boundaries of Nemathampatty village. But I think I am accurate in describing the pond as the village pond of the village of which the plaintiffs and the defendants are the inhabitants or some of the inhabitants.
2. Now the case set up by the plaintiffs is that they had certain rights as hereditary trustees of this tank, the parties for whom the beneficiary rights are supposed to exist being the defendants and other villagers of the same village. It may be it is not strictly accurate to describe the defendants as the cestuis que trustent of the alleged trust, but there can be no doubt that the trust which the plaintiffs set up is supposed to exist for the benefit of the defendants as villagers.
3. The case for the plaintiffs as made in paragraph 5 of the plaint is (I give the material portion only) that their ancestors and afterwards the plaintiffs have from time immemorial been undisputedly enjoying the pond in question for over fifty years as trustees. That is the case made in the plaint and that is the case made before us. They ask for a declaration that the properties with certain exceptions hereditarily belong to the ancestors of the plaintiffs and that the properties should be delivered to them and that the defendants have no rights other than the rights of taking water like other people and they ask for a permanent injunction restraining the defendants from interfering with the properties. They also ask for an injunction directing the defendants to remove a certain platform and certain mud walls which the defendants have erected.
4. In their defence the defendants set up an exclusive title as trustees to the pond in question. That has been found against by the learned Subordinate Judge. The plaintiffs appeal and the question for determination is whether the learned Subordinate Judge was right in holding that the plaintiffs bad failed to make out the case which they set up in their plaint. Now the acts upon which the plaintiffs rely as creating in them a title as trustees by immemorial possession or by prescription whichever may be the more correct description of their claim, are to be found in paragraph 11 of the judgment of the learned Subordinate Judge. He says 'that the plaintiffs and the forty-sixth and forty-seventh defendants and their fathers and grandfathers have been maintaining and conserving the plaint tank at their cost and have built flight of steps, sluices for it, and a Pillayar kovil, on one of its bunds, have been cleaning it and its supply kal, repairing and strengthening its bunds and have also been enjoying the fruits of the trees in the bund, selling withered and fallen trees thereon, and that they are maintaining the' Pillayar kovil also. It is further well proved that the occupants of the houses on its bund constructed them with leave of the plaintiffs' ancestors.'
5. That is what the Judge finds with regard to the acts done by the plaintiffs in connection with this village tank.
6. Mr. Ranga Chariar suggest that that is putting the case too high in favour of the plaintiffs. However, I will deal with the case on the footing that the learned Subordinate Judge was right in holding that the plaintiffs had established that these acts had in fact been done by the plaintiffs. Then with regard to the rights of the defendants in the pond in question these are the findings of the learned Subordinate Judge. In paragraph 19 he says: 'I have no doubt that the plaint pond just like other ponds in the village is the ancient immemorial pond of the village and is therefore village common property either vested in the State or in the Zamindar, the proprietor of the entire village.' Again in paragraph 22 he says: 'In this case (that is, the case before him) also the right of every one to use the corany is not denied. I have found that, from the very nature of the case, the plaint oorany as an ancient village pond is the village common property.' Again in paragraph 24, 'I therefore find on this issue that the plaintiff's exclusive title as owners or trustees of the plaint oorany, has not been made out and that the plaint oorany is village common tank to the use of every part of which all the villagers are entitled,'
7. I do not think it necessary to discuss the question of the ownership of the tank. The right which the plaintiffs set up is analogous to the right set up in the ease of Muttaya v. Sivaraman I.L.R. (1883) Mad. 229. The Subordinate Judge in dismissing the plaintiffs' suit was of opinion that the case before him was governed by the decision of this Court in the case of Muttaya v. Sivaraman I.L.R. (1883) Mad. 229 which went on appeal to the Privy Council, the Privy Council confirming the decision 01 the High Court of Madras and holding that the plaintiffs had failed to make out the title which they set up.
8. I do not say that the title set; up in Muttaya v. Sivaraman I.L.R. (1883) Mad. 229 is identical with that in the present case, but it is certainly analogous. I do not say this case is precisely on all fours with Muttaya v. Sivaraman I.L.R. (1883) Mad. 229. There are grounds of distinction which have been pointed out in the course of argument. One ground was that there was an admission in Muttaya v. Sivaraman I.L.R. (1883) Mad. 229 that the tank was the common property of the villagers. I do not know there is much substance in that distinction, because we have a finding of the learned Subordinate Judge--a finding which is not seriously contested, and which we see no reason to differ from--that hare the pond was the common property of the inhabitants of the village.
9. Another ground of distinction deserves more serious consideration. In Muttaya v. Sivaraman I.L.R. (1883) Mad. 229 there was a certain agreement and that agreement is set out in extenso in the report of the case in the Privy Council [Sivaraman Chetti v. Muthaya Chetti I.L.R. (1889) Mad. 241]. No doubt the rights of parties in that case were considered with reference to the special agreament or compromise in that case. But I think it is clear from reading the judgment of the Privy Council as a whole that it was not the view of their Lordships that the rights of the defendants were created by the agreement in that case. I think their view was that the agreement merely embodied rights which previously existed. We find on page 249 of the report, 'the terms of the Kararnama are fatal to the claim of the plaintiffs that they are entitled to repair at their sole expense. Their Lordships do not find anything in the previous evidence to show that these terms are erroneous.' That suggests that their Lordships are of opinion, as I have said, that the agreement merely embodied the existing rights
10. No doubt these are grounds of disfunction and it may be that the learned Subordinate Judge was not quite right in his view that there was no distinction between the two oases. But however this may be I am certainly of opinion that the general principles upon which the judgments of this Court and of the Privy Council proceeded in the case of Muttaya v. Sivaraman I.L.R. (1883) Mad. 229 if applied to the case before us, make it clear that the learned Subordinate Judge is right in his view that the plaintiffs had failed to make out their title as trustees.
11. Now the acts which were relied upon in Muttayav. Sivaraman I.L.R. (1883) Mad. 229 as creating in the plaintiffs a title by adverse possession or prescription with reference to the point in question in that case are set out at page 242 of the Privy Council Report in Sivaraman Chetti v. Muthaya Chetti I.L.R. (1889) Mad. 241 and they are curiously similar to the acts relied on by the plaintiffs in this case. It would appear also-that the allegations in the plaint in the case before the Privy Council were not traversed and that the case proceeded on the assumption that the allegations as to the acts done by the plaintiffs were established. Their Lordships held, as I understand their judgment, that the acts were not sufficient to create the title which the plaintiffs there set up. I am not sure that the Privy Council case is not stronger than the present case, stronger in favour of the title on which the plaintiffs rely for the purpose of excluding the defendants from having any part in the conservancy of the tank. Beyond the statements in the plaint, to which I have referred, we have the admitted fact that in the Privy Council case the plaintiffs dug the tank in question. True it was said they dug it with the permission of the defendants, but we have the admitted fact that they dug the tank either with or without permission. There is no such allegation in the present case.
12. Here there is no evidence that, in the first instance, the plaintiffs were the owners of the tank. I think it may fairly be assumed that in the first instance the plaintiffs together with the defendants had precisely the same rights in connection with the tank, that is, rights as villagers. I certainly am not disposed to make any presumption of a lost grant in favour of the plaintiffs.
13. With regard to the case of Venkatrama Aiyar v. Secretary of State : (1910)20MLJ74 I do not think that that case is in point. There was no question of the rights of trustees as against parties who were entitled to the benefit of the trust. The question was as between rival owners and the only right in question was the proprietary right. Here admittedly no beneficiary right is in question, The only right in question is the right of a trustee as trustee.
14. For the reasons I have given I hold that the plaintiffs' suit was rightly dismissed and I would dismiss this appeal with costs.
15. The Memorandum of Objections also is dismissed with costs.
16. I concur.