1. The petitioners, the Mittadar of Devasthanam Mitta and his son, seek to revise the conviction recorded against them under Section 313 read with Section 362, District Municipalities Act, by the Sub-Magistrate, Vaniyambadi, which was confirmed by the Joint Magistrate, Tirupattur.
2. They were fined Re. 1 each. The offence charged against them was that they had cut and removed trees from four town survey numbers, namely 1166, 1227, 1225 and 1228. The Municipal Council claimed those properties as vested in it. Therefore the petitioners were charged with having violated Section 362, District Municipalities Act, by cutting and removing trees therefrom. Both the Magistrates found that the four survey numbers above mentioned were properties which vested in the Municipal Council of Vaniyambadi. The argument of the learned advocate for the petitioners in this Court is twofold: (1) that the acts charged do not amount to an offence under Section 362 (2); that the properties from which the trees were cut have not been shown to be properties vested in the Municipal Council.
3. Section 362 says:
No person shall, without authority in that behalf, remove earth, sand or other materials... from any land vested in the Municipal Council, or river, estuary, canal, back water or water course (not being private property)....
4. The argument is that trees do not come within the expression 'other material' in this section. I am unable to see how trees growing upon land are to be excluded from the expression other materials' which is quite general. To exclude trees growing upon the land vested in the Municipal Council from this section would enable anyone to cut and remove trees from Municipal land and plead that they had not contravened the section although, according to the words immediately preceding, to remove a basket of earth for a load of sand from the foot of such trees, would be an offence. I do not think that this is a reasonable construction. I must say that trees when cut are 'other materials' which are upon land vested in the Municipal Council.
5. As to the question whether the survey numbers from which the trees were cut were or were not vested in, the Municipal Council it was not disputed in either of the Courts below that Survey Nos. 1166 and 1227, which are registered respectively as 'road margin' and Government river poramboke,' belonged to and vested in the Municipal Council. 1 do not see how the petitioners can now be heard to re-open that question.
6. As regards the other two Survey Nos. 1225 and 1228 the survey register produced shows that they were classed as 'river poramboke within devasthanam limits.' The learned advocate for the petitioners argues that this shows that these properties are the private property of the Mittadar and that therefore Section 125, which was relied upon to show that the beds of watercourses and lands adjacent thereto belong to the Municipality, is not applicable.
7. But there is evidence that the classification of property as 'river poramboke within devasthanam limits' means that such property is not within the mitta proper but outside, and this is made clear from the facts referred to by the Sub-Magistrate in para. 7 of his judgment. Certain other properties were wrongly classed as patta lands. On the application of the Municipality the Director of Survey classed them as river poramboke within devasthanam limits.' The predecessor-in-title of the present petitioners sued the Government and the Municipal Council to have this classification altered and those properties classified as patta lands. That dispute was settled by a compromise the result of which was that the lands the subject of dispute were declared according to the request of the Municipality as river poramboke, but the Mittadar was compensated by the peshkush being reduced proportionately and by the arrears which had been collected being refunded and by his being permitted to cut and remove the trees which were growing upon those properties before the floods of 1874. This shows that the classification of property as river poramboke, although within the devasthanam limits, indicates that it is not part of the mitta, and this answers the objection of the learned advocate for the petitioners founded upon the decision in Venkata Lakshmi Narasamma v. Secy, of State  41 Mad. 840 that, in the absence of proof to the contrary, the presumption, which may be strong or weak, is that the soil of non-navigable rivers vests in the owners on either side. Here there was proof to the contrary. The river in question is the river Palar, an important river of considerable size although not navigable. Therefore the conclusion of the Magistrate was right that the properties in question are not the private properties, and the conviction was therefore right. The petition is dismissed.