1. The question in this appeal is whether a certain strip of land in South Kanara running between land undoubtedly the property of the plaintiff and a stream is part of the plaintiff's warg. It arises in this wise: The Government claiming the strip to be poramboke, the site of a public foot-path, took proceedings under the Land Encroachment Act 3 of 1905, to evict the plaintiff from this strip. Therefore the plaintiff brought his suit for a declaration that the strip belonged to him in warg right. The plaintiff alleged that he and his predecessors-in-title had been in possession of the suit land for more than the statutory period of 60 years. It has been found by both Courts that the plaintiff has not been able to prove a title to the disputed strip. But the lower appellate Court, having found that plaintiff has been in possession between 30 and 40 years, has held that the presumption may be drawn in his favour of having been in possession for the fall statutory period. I think there is no doubt that this conclusion cannot be justified. It rests upon the decision of this Court in Sri Raja Chelikani Rama Rao v. Secy. of State (1910) 33 Mad 1, which was expressly negatived by the Privy Council in Secy. of State v. Chelikani Rama Rao AIR 1916 PC 21, where their Lordships said:
Nothing is better settled than that the onus of establishing title to property by reason of possession for a requisite period lies on the person asserting such possession.
2. Therefore the onus was on the plaintiff who asserted a title by possession for 60 years to prove it; and he was not relieved of that burden of proof by showing a possession for something less than the prescribed period. But apart from this, there is the Land Encroachment Act of 1905, Section 2 which declares (inter alia) 'all standing and flowing water, and all lands, wherever situated,' to be the property of Government, save in so far as the same are the property of any of the persons specified in the section. The Act applies to the whole of the Presidency. Its effect is to throw upon the person who claims lands other than lands falling within the excepted property included in Section 2, by a prescriptive title against Government to prove it. 'That Act' said their Lordships of the Judicial Committee in Secy. of State v. Subbarayudu ,
with its general and sweeping enactments has certainly the effect that in future, when there is a contest as to the right of water, the opponent of the Government will be put to prove his title. He will not be able, as he otherwise would have been when attacked by the Government, to put them to proof of his title.
3. It will be found that this principle is also enunciated by the learned Judges (Pakenham Walsh, Varadachariar and Pandrang Row, JJ.) who were parties to the unreported A.S. No. 453 of 1929. I may quote from Varadachariar, J.'s judgment where he says:
It may also be conceded that what is commonly spoken of as ' possessory title' founded on the mere fact of possession, cannot prevail against Government, because a possessory title can avail only against persons who are not the true owners, and under the Madras Act 3 of 1905 Government must be presumed to be the owner until a title is established in another.
4. Mr. Sitarama Rao, the learned advocate for the respondent plaintiff, has sought to give an exception from this general rule of prescription in favour of land in South Kanara. He has referred to Secy. of State v. M. Krishnayya, (1905) 28 Mad 257 and to the Privy Council ruling in Ambu Nayar v. Secy. of State AIR 1924 PC 150, where it was held that there was an undoubted presumption that waste and forest lands in South Kanara belonged to Government. He has moreover relied on a passage in Secy. of State v. M. Krishnayya, (1905) 28 Mad 257, where it is said in contradistinction to this particular presumption that land which has been at any time cultivated may generally be presumed to be warg land. I doubt whether any such presumption can be drawn in view of the emphatic provision of Section 2 of Act 3 of 1905. But, however that may be, there is no evidence in this case that the suit strip was cultivated by the plaintiff. On the contrary, it appears from the lower appellate judgment that the suit strip is covered with thorny shrubs and plants which make it impassable to passengers. For these reasons I think that the plaintiff having failed to prove a prescriptive title against the Government, his suit was rightly dismissed by the trial Court. It follows that the appeal must be allowed with costs here and in the lower appellate Court. Leave refused.