Venkatasubba Rao, J.
1. The question raised in this Letters Patent Appeal is whether the suit tank belongs to the Zamindar or to the Government. The immediate cause of this litigation, as pointed out by Cornish, J., was the action of the Local Taluk Board in auctioning in the year 1926 the right to fish in the tank. Both the Taluk Board and the Government were made defendants and their contentions were rejected by the District Munsiff as well as the Subordinate Judge. A second appeal was filed in this Court, only by the Government whose plea was that the tank was communal property. Cornish, J., reversing the concurrent decision of the lower Courts, has held that the title of the Government has been proved.
2. Should the tank be held to' be communal property as pleaded, it stands to reason that the Government cannot be presumed to have included in the grant property which belonged to the villagers in common (see the judgment of this Bench in Appa Rao v. Secretary of Stated A.I.R. 1938 Mad. 193. But both the lower Courts have concurrently given first, a negative finding that the tank is not communal property and secondly, a positive finding that it is an irrigation tank. If the tank is an irrigation tank as has been found, 'it would be meaningless' in the words of the Subordinate judge:
To hold that the Government had given the lands forming the ayacut of this tank to the Zamindar but reserved to themselves the tank itself.
3. The lower Courts advert to two further circumstances to show that the tank is the property of the Zamindar; (i) that it is within the territorial boundaries of the Zamindari; and (ii) that the Government during a period of over a century never exercised any acts of ownership over the tank. For the first time in 1926 the Taluk Board, as already mentioned, purported to sell the fishing in the tank; but that the Zamindar considered himself entitled to the right to fi&h;, is evident from two prior transactions of the years 1904 and 1909 (Exs. C and D).
4. Cornish, J., in dissenting from the lower Courts, has relied upon three circumstances. The first is that in what is known as 'Bhubandhu Account' (Ex. II), the tanks in the village including the suit tank were shown under the heading 'Minaha' which means deductions. Of the many statements and accounts prepared at the permanent settlement, the Government have chosen to file this paper alone, and as the District Munsiff pertinently points out, it would not be proper to draw any inference in favour of the Government, who have refrained from producing the other records which should undoubtedly be in their possession. Apart from that, does the 'Bhubandhu Account' lend the slightest support to Cornish, J.'s inference? The utmost that can be inferred from the exclusion of the tanks is, that they were not taken into account in fixing the assessment payable by the Zamindar. As their Lordships observe in the Urlam case,
It does not follow that all which is not brought into account in fixing the Jamma or peishkush is excluded from the grant. On this finding many things of great importance to the enjoymant of a zamindari would not pass by a zamindari grant, for example, waste land, farm buildings, tanks or, in the present case, irrigation channels.' (Kandukuri Balasurya Rao v. Secretary of State for India
5. To assert that all which is not brought into account in fixing the peishkush is excluded from the grant, is to state the proposition too broadly. That certain land had been exempted from revenue wholly or partially and was on that ground not brought into account is one thing; but it is quite a different thing that some portion was not yielding revenue' and its income was not therefore brought into account. To the former category belong what are known as lakhraj lands and the following passage from the judgment of one of us in Secretary of State v. Sri Rajah Vasireddi (1929) 30 L.W. 129 affirmed by the Privy Council in Vasireddi Chandra Mouleswara Prasada v. Secretary of State for India may be usefully quoted here:
It has been broadly contended by the Advocate-General for the plaintiff that the term lakhraj lands in Regulation XXV of 1802 does not comprise village service inams. As they were not lakhraj he argues, the revenue from them would be prima facie included in the assets of the zamindari when its peishkush was fixed atthe permanent settlements. Section 4 of that Regulation provides that the. permanent settlement of the land tax shall be made exclusive inter alia (1) of lakhraj lands (or lands exempt from payment of public revenue) and (2) all other lands paying only favourable quit-rents. Without doubt absolute grants in inam are included in the expression 'lakhraj lands'. Then, on what footing do (1) private service inams and (2) village service inams stand? So far as the former are concerned, it has been consistently held that they are not lakhraj. But the reasons adduced in support of, that view furnish a clue to the right understanding, of the nature of village service inams. In the case of personal service inams, was there any reason at the time of the permanent settlement for treating them 'as lands exempt from the payment of public revenue?' The Zamindar was receiving income from such lands, though not of course in the shape of cash rent but in the shape of services; for the rendering of services was one mode of paying the rent. It was reasonable therefore to treat them at the settlement as revenue-paying lands....
Private service inams not being held to be lakhraj on the ground that they were a source of profit to the Zamindar, if the same principle, be applied in the case of village service inams what would be the result? It follows as a corollary that if the services are of a public nature, that is, if it is not the Zamindar, that is benefited but the estate or the community at large, the lands would in that case be regarded as lakhraj or exempt from public revenue and the income from them excluded from the assets....The result of the cases then is, that while in regard to private service inams the Zamindar has the right of resumption, in regard to the village service inams, they are resumable by the Government. My brother Ramesam, J., sitting with Oldfield, J., in a case dealing with Sarvadumbala Grant (an absolute grant in inam) classified the lands excluded from the assessment under Section 4 of the Regulation thus:
(1) Lands granted on condition of rendering service (that is, public service inams),
(2) Sarvadumbala inams,
(3) Inams granted on favourable quit-rent the first two groups together forming the lakhraj lands mentioned in the section.
This seems to embody the correct principle and lam prepared with all respect to accept the classification as correct.' (Pages 141 to 143.)
6. The principle referred to above does obviously not apply to things (including tanks) such as those mentioned by the Judicial Committee in the Urlam case. It follows accordingly that the first ground mentioned by Cornish, J., is untenable.
7. Secondly, the learned Judge says that in the Survey and Settlement Register (Ex. III), the tank is referred to as 'poromboke' and from that he infers that it belongs to the Government. That the word 'poromboke' is used in several senses is well settled by authority. Granting that poromboke includes communal property it cannot be seriously maintained that it connotes no other kind of property.
8. Lastly Cornish, J., thinks that from the description of the tank as 'village tank', it should be inferred that it belongs to the villagers. This view, it need hardly be said, is clearly untenable. This is the largest tank in the village (being over 9 acres in extent) and it is known variously as (a) Pedda Cheruvu; (b) Vooru Cheruvu or tank of the place; (c) Grama Cheruvu or village tank. It would be far fetched to hold that because a tank is called a village tank, the villagers necessarily own it. It may not be without interest to point out that one of the three tanks is called the 'Dogs tank.' In the result, we are satisfied that the conclusion of the lower Court is correct. The judgmentof Cornish, J., is set aside and that of the lower appellate Court is restored. The Government will pay the appellants' costs both of the second appeal and of the Letters Patent Appeal. Time for payment of costs two months.