1. We deal at present only with the objection to the jurisdiction and with one ground on which appellants have attempted to support that of the Civil Court, that the suit land is tank-bed within the meaning of that expression as used in Section 3(16) of the Estates Land Act. No doubt, if the land is tank-bed, it follows from that provision that it is not ryoti and the lower Appellate Court's finding at the conclusion of the 7th paragraph of its judgment that it is ryoti and the acquisition of ryoti right in it, in spite of the proprietor, possible, is unsustainable.
2. The lower Appellate Court's use of language is not clear. But we understand it to hold that the land lost the character of tank-bed at some date not specified, and was cultivable waste at the date of suit, because of its cultivation for fourteen years. It is not, in our opinion, clear that this fact alone is a satisfactory ground of decision.
The Act contains no definition of 'tank-bed.' But the lower Appellate Court has proceeded on the assumption that the land originally had that character, although it was justified in doing so by no admission of defendants and in fact their written statement rather denies it. If, however, that assumption was justified, there is then the difficulty that the wording of Section 3(16) suggests its application to land, which had not lost its character as tank-bed, when the Act came into force; and, if so, a determination of the date on which that character was lost, is necessary, before the lower Appellate Court's argument can be accepted. Again it is argued that letting and cultivation of the land are not necessarily inconsistent with its retention of that character. For land may be let, but may not be cultivated in years in which water does not cover it or may be cultivated, notwithstanding that it does so temporarily; and the evidence as to the fourteen years' letting referred to by the lower Appellate Court does not show whether it was of either character or that it involved an abandonment of the use of the land as tank-bad. In this connection reference maybe made to the evidence of plaintiff's 1st and 2nd witnesses regarding the existence of a bund between the land and the tank and the possibility which the lower Appellate Court has not considered, that it indicates such abandonment. It is not our intention in referring to these points to attempt an exhaustive enumeration of those to which the parties and the lower Appellate Court may appropriately attend. We specify them only because they have been mentioned in argument and no authority regarding the interpretation of the term tank-bed' in Section 3(16) having been cited, such specification may be of assistance in the further enquiry which we mean to direct.
3. The interpretation of the term tank-bed' raises new and important questions and we cannot regard the lower Appellate Court's determination of it, reached without any finding by the trial Judge and apparently without appreciation by the parties of the matters really in issue, is satisfactory. We, therefore, call for findings on the issues:
(1) Whether the suit land was ever continuously used for the storage of water?
(2) If so, whether such use has been permanently abandoned and at what date?
4. Fresh evidence may be taken. Findings will be due in two months. Seven days for objections.
5. In compliance with the order contained in the above judgment the Subordinate Judge of Ellore submitted the following
6. Findings.--The plaintiff's case is that S. No. 18 in extent acres 3--50 cents was the site of a tank...(cheruvu prathas amu) and that the tank-bed...(cheruvu garbham) was being leased by him for cultivation temporarily from the year 1899, and that in Fasli 1318 he sold the Kudivaram right of the land for Rs. 840 to one Nagayya but that, as the defendants would not deliver up possession of the land, the sale could not be carried into effect. The plaintiff accordingly sues to eject the defendants from the land. The defendants deny that the land was at any time tank-bed land. I have been asked to submit findings, firstly, as to whether the suit land was ever continuously used for the storage of water; and secondly, if so, whether such use has been permanently abandoned and at what date. The schedule attached to the plaint, Index No. 5, would indicate that the suit S. No. 18 is the re-Survey No. The schedule shows that S. No. 57, an Inam land, and S. No. 58, a zeraiti land, are the northern boundaries of the suit land; though another schedule, Index No.512, shows that S. No. 59 Cheruvu also forms the northern boundary. In both, the Schedules the path leading to the Cheruvu S. No. 59 is shown as an eastern boundary for the suit land. At the time of trial it was alleged that S. No. 18 was the old S. No. and the Kurnam, P.W. No. 1, has come forward to swear that the old Survey Nos. 17 and 18 correspond to re-Survey No. 59 which measures acres 10--75 cents, and that out of this land the suit land, measuring acres 3--50 cents, was leased to the defendants by the plaintiff. The plaintiffs attempt has been to make out that the entire re Survey No. 59, acres 10--75 cents, is tank-bed land, and that the plaint land which forms a portion thereof also partakes of that character. But beyond such vague assertion there is nothing to support such a contention. The copy of the Adangal account, Exhibit A, shows that the suit land, though forming part of Survey No. 59, is zeraiti cultivated land in the possession of Chodavaiapu Ramanna and irrigated by the Government canal water. The Kurnam admitted that even with regard to the remaining acres 7--25 cents in Survey No. 59 only 5 acres form the waterspread of the tank. The sketch prepared by him, Exhibit B, would also show that the tank-bed forms but a portion of the Survey No. 59, and that there is a considerable portion of the land in the south not covered by the tank. In this connection it is necessary to remember that re Survey No. 59 is said to include 2 old Survey Nos. 17 and 18 and that the suit land corresponds to old Survey No. 18. There is nothing to show that it was tank-bed. No doubt the plaintiff has put forward some persons to swear that the suit land formed a portion of the tank to its north, and that even at present in spite of a bund intervening, a considerable quantity of water would stagnate on the suit land during the rainy seasons. But I have little hesitation in rejecting it as absolutely unworthy of credit. The witnesses have given free vent to their imagination and indulged in all sorts of assertions. This would be evident from their story as to (sic) wajastambham having at one time (sic) the land. Admittedly there is a (sic) bund intervening between the (sic) and the tank. Nevertheless the (sic), P.W. No. 1, did not scruple to assert that there would be some extent of the suit land under water, though first crop was being raised on the land with the help of canal water every year. The P. W. No. 3 merely confined himself to stating that before defendants began cultivating the land 14 or 15 years ago it formed the waterspread of a tank. But the plaintiff's 4th witness was more straightforward and he admitted that before the defendants came into possession of the land it was waste land. The land was also let to the defendants in 1899 as Asalaminha waste, and in subsequent Faslies as a zerait land. The plaintiff would assert that, as the land is known as Pallacheruvu, it should have formed part of a tank at one time. But the name might merely indicate a wet land near a tank. The P.W. No. 5 would ask the Court to believe that water would stagnate to a depth of 3 feet on the suit land, when there is heavy rain. Similarly the P.W. No. 6 would allege that water would always stagnate on the land, though admittedly the land was being cultivated by the defendants during the last 22 or 23 years without interruption and damage. The plaintiff has utterly failed to prove by any reliable evidence that the suit land formed the site of a tank at any time and that it is tank-bed land. At any rate there is not the least doubt that it had ceased to be used for the storage of water long ago, and that it had been abandoned from being used for any such purpose before the memory of man. The fact that in Fasli 318 the plaintiff had sold publicly the Kudivaram right in the land conclusively proves its permanent abandonment from being used as tank-bed. It was argued for the plaintiff that such abandonment should be considered as having taken place only after the said sale and not before. This overlooks the fact that but for such abandonment, it could not have been fit for cultivation when leased to the defendants in 1899 and that since then the land is being used only for cultivation purposes and not as a tank, is admitted.
7. In this connection it may also be noted that even the existing tank in Survey No. 59 serves no useful purpose accept for washermen to wash the clothes (sic) is not an irrigation tank nor is it (sic) general utility to the villagers. In (sic) circumstances no one is interested even in preserving the present tank.
8. For the aforesaid reasons I answer the 1st issue in the negative, and the 2nd issue in the affirmative.
9. This appeal came on for final hearing after the return of the finding of the lower Appellate Court upon the issues referred to by this Court for trial, the Court delivered the following.
10. We accept the finding and dismiss the appeal against order with costs.