M.M. Ismail, J.
1. The appellants herein instituted O.S. No. 351 of 1962 on the file of the Court of the District Munsif of Valangiman at Kumbakonam for declaration of their right to a tank and to the fishery rights therein situate in R.S. No. 73/2 in Narthangudi Village and for a permanent injunction restraining the respondents from interfering with their possession of the same, or, in the alterative for recovery of possession of the tank with the fishery rights therein.
2. The appellants claimed title to the tank and the fishery rights therein, having exercised the same for more than hundred years, and they came to file suit only because the first respondent-panchayat purported to lease out the fishery rights in the tank by public auction on 23rd April, 1962. The appellants claimed title to the property and also in the alternative claimed that even if they were not the original owners of the tank and the fishery rights they had perfected their title by adverse possession. On the other hand, the case of the respondents was that the tank was situate in natham poramboke and as such, the tank was Government property and under the provisions of the Madras Panchayat Act, it had vested in the panchayat and consequently the first respondent-panchayat had acquired the right to auction the fishery rights. Both the Courts below have rejected the case of the appellants and dismissed their suit and hence the present second appeal.
3. Since I have decided to set aside the judgment and decree of both the Courts below and remand the suit for a fresh disposal in view of the gross failure on the part of the Courts below to understand the case put forward by the appellants and the wrong approach on their part to the questions raised in this suit, I do not propose to express any final-opinion on any of the points in controversy.
4. As I pointed out already, the appellants claimed that they were the owners of the tank and the fishery rights therein and in the alternative claimed also that they had perfected title by adverse possession. Admittedly, there was documentary evidence to show that it was the appellants' predecessors-in-interest who had been leasing out the fishery rights in the tank from 1873 onwards, as evidenced by Exhibit A-4 and other similar documents. By a partition deed dated 14th July, 1900, marked as Exhibit A-1, the tank had been dealt with as the property belonging to the family and had been partitioned. In each and every one of the lease deeds produced in this case, the lessees had acknowledged that the tank belonged to the lessor's family. However, without paying proper attention to any of these documents as evidence of title of the appellants, the Courts below proceeded on the basis that the tank was situated in natham poramboke and that the appellants themselves had admitted the same. I am clearly of the opinion that this approach was thoroughly wrong and was entirely unjustified with reference to the facts of the case and the materials placed before the Court. As I pointed out already, there is evidence to show that as early as 1873 the fishery rights in the tank were leased out by the predeces-sors-in-interest of the appellant's family. Both the Courts have come to the conclusion that there was no evidence as to who dug the tank and when the same was dug. Nonetheless, relying solely upon Exhibit B-1, which is an extract from the Re-settlement Register the Courts below came to the conclusion that the tank was situate in natham poramboke. D.W. 1 had stated that the Re-settlement Register was prepared in 1925, that Exhibit B-1 was an extract from the Resettlement Register and that R.S. No. 73/2 had been shown in that Register as poramboke. The fact that in 1925 the land in question was shown as poramboke did not automatically mean that at the time when the tank was dug, the land was poramboke, or that in the poramboke land, the tank was dug. Equally, the admission of the first appellant was that the tank was situate in the poramboke land, that is, he was referring to the state of affairs existing on the date when he was examined. There was no admission on the part of the appellants that the tank was dug in a poramboke land. Therefore, there could be no question of the appellants themselves having admitted that the tank was dug in a poramboke land and if at all, they could claim title only by prescription on the basis of adverse possession. Hence, the question regarding title put forward by the appellants had to be investigated into and examined independently of their alternative claim to title by prescription. The Courts below have failed to do that because of the wrong assumption that the appellants had admitted that the tank was situate in natham poramboke, failing to make a distinction between this tank being situate in what was described as a natham poramboke in Exhibit B-1 and the tank having been dug in what was a natham poramboke or not. Tt has been repeatedly held that the mere fact that in the Re-settlement Register, a particular piece of land has been described as poramboke will not by itself establish title of the Government to the land in question. Under these circumstances, I do not have the slightest hesitation in holding that both the Courts below have failed to appreciate the question of title put forward by the appellants to the tank in question and approach the claim from that point of view.
5. Equally, the Courts below have failed to bear in mind the distinction between the possession and evidence as to exercise of rights of ownership over the property over a certain period of time, when they approached and dealt with the question of adverse possession in this particular case. Admittedly there was evidence to show that the appellants and their predecessors-in-interest had been dealing with the fishery rights in the tank in question from 1873 onwards. However, the learned District Munsif pointed out that there was no lease deed from 1896 to 1927, in 1934 and 1935 and from 1938 to 1945 and from 1945 to 1953. On this basis, the learned District Munsif came to the conclusion that there were gaps in the possession of the appellants and that the burden was on the appellants to establish their continuous possession for the purpose of having their title to fishery rights in the tank by prescription, accepted by the Courts. With reference to the statement of the learned District Munsif that there was no evidence of the fishery rights having been leased out by the appellants from 1945 to 1953, it has to be pointed out that D.W. 1 who was the karnam of the village, himself in his evidence admitted that from 1949 to 1961 it was the appellants who were enjoying the fishery rights. This evidence is totally opposed to the conclusion recorded by the learned District Munsif that there is no evidence of the lease from 1945 to 1953, which takes in the period from 1949 to 1953. Further, the learned District Munsif assumed that the absence of evidence in the form of lease deeds is the same thing as abandonment or discontinuance of possession started by the appellants. It is only on the assumption that the absence of evidence regarding the lease of fishery rights is tantamount and equivalent to abandonment of possession on the part of the appellants, the learned District Munsif has discussed the law in this behalf and pointed out that such discontinuance will enure to the benefit of the real owner of the property who would be deemed to have constructive possession of the property. In this the learned District Munsif assumed two things (1) that the Government was the owner of the tank and (2) that the appellants had discontinued or abandoned possession of the tank or the fishery rights. Neither of the two assumptions is warranted by the facts in the case, or the evidence available on record. The law in this behalf has been clearly laid down by the Privy Council in Secretary of State for India in Council v. Debendra Lal Khan (1934) L.R. 61 IndAp 78 : 66 M.L.J. 134, Lord Macmillan pointed out there:
The classical requirement is that the possession should be nec vi. nee clam nee precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercised due vigilance, to be awared of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to is notice. The Limitation Act is indulgent to the Crown in one respect only, namely in requiring a much longer period of adverse possession than in the case of subject; otherwise there is no discrimination in the statute between the Crown and the subject as regards the requisites of adverse possession. It may be added that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession 'be not proven to have continued every quarter, month or year, yet ordinary possession will be sufficient ad victorium causae albeit it be proponed in the terms of a continual possession, quiaprobatis extremis praeesumuntur media if the distance be not great.' (Stair's Institutions of the Law of Scotland, IV, 40, 20). 61 I.A.
The fact of possession may be continuous though the several acts of possession are at considerable intervals. How many acts will infer the fact is a question of proof and presumption independent of prescription : Miller on Prescription, page 36.
The nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible. The Crown in the case of a fishery belonging to it exercise its rights by granting leases or licenses to fish; it does not itself fish. Consequently the granting by a person other than the Crown of leases or licenses to fish in the case of a fishery which prima facie belongs to the Crown is evidence of the usurpation by that person of the distinctive rights of the Crown and is thus most significant evidence of adverse possession.
These observations of the Privy Council are apposite to this case. This also involves the case of fishery rights and the Courts below have proceeded to reject the inference that has necessarily to be drawn from the various lease deeds commencing from 1873, holding that the Government was not a party to any of these documents. The observation of the Privy Council is that once a trespasser exercises the rights of possession and ownership openly, it is enough to constitute adverse possession and that there is no obligation on his part to bring to the notice of the real owner that he was exercising such rights of ownership adverse to the real owner. Here again, the maxim referred to by Lord Macmillan, 'when the extremes have been proved, those things which lie between are presumed' will apply. Further, as heldl by the Supreme Court in Nathoo Lal v. Durga Prasad : 1SCR51 , the law presumes in favour of continuity of possession. In this case, if there had been a leasing out of the fishery rights by the appellants and their predecessors-in-interest from 1873 to 1896 and subsequently for several years upto 1961 and there is absolutely no evidence to show that during the interval, or any part of the interval, anybody else including the Government, exercised any right, the above maxim will automatically apply and the necessary inference and presumption will follow with reference to the materials available in this case.
6. One other curious thing which the Courts below assumed in this case is that simply because the first appellant and his family were the hereditary village munsifs of the village, their possession and the exercise of fishery rights may be attributed to their character as village munsifs and therefore the character of their possession in this particular case was equivocal. To say the least, this is wholly unwarranted. In no case the village munsif can be said to have any right to deal with the fishery rights in a tank, or the tank in a poram-boke in his own right, except in his capacity as village munsjf, if at all he has got any such right. It is not the case of any party and there is no material to support the case, that the right exercised by the appellants and their predecessors-in-interest was in the capacity of there being village munsifs of the village.
7. Taking all these factors into account, I am of the opinion that the Courts below have not applied their mind to the point to be decided arising out of the claim put forward by the appellants and therefore the judgments and decrees of both the lower Courts are set aside and the second appeal is allowed. The matter is remanded to the trial Court for fresh disposal.
8. The appellants herein have filed C.M.P. No. 6272 of 1968 for reception of certain documents as additional evidence in this case. Since I am remanding the entire matter to the trial Court, this civil miscellaneous petition also will be transferred to the trial Court for disposal. The second appeal is allowed in the above terms. The appellants will be entitled to refund of the Court fee paid both on the memorandum of appeal before the first appellate Court as well as on tht memorandum of second appeal before this Court. There will be no order as to costs. No leave.