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Sri Rajah Saheb Meharban-i-dostan Sri Rajah Ravu Venkata Kumara Mahipati Surya Rao Bahadur Garu Sirdar, Rajahmundry Circar and Maharajah of Pittapuram Vs. the Secretary of State for India in Council, Represented by the Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1942)1MLJ344
AppellantSri Rajah Saheb Meharban-i-dostan Sri Rajah Ravu Venkata Kumara Mahipati Surya Rao Bahadur Garu Sird
RespondentThe Secretary of State for India in Council, Represented by the Collector and ors.
Cases ReferredCouncil v. Subbarayudu and Dawood Hashim Esoof
Excerpt:
- - 151 and 152 of 1938, must fail. in a river like the godavari lankas sometimes appear suddenly, but whether the disputed lankas were formed suddenly or gradually is not to be gathered from the evidence. lengthy correspondence followed between the appellant and the collector of east godavari without the appellant being able to convince the government that his claims were well founded and on the 14th february, 1927, the collector demanded the sum of rs. 5. it is impossible to compare a river like the godavari with any river in england, and this is sufficient in itself to make one hesitate to apply to it common law rules with regard to riparian ownership. 256 where he observed that conditions in madras are so dissimilar from those in great britain that it might well be that the english.....alfred henry lionel leach, c.j.1. these three appeals arise out of separate suits instituted by the appellant with the object of establishing title to certain lankas, or alluvial islands; in the river goda-yari. in o.s. no. 52 of 1936, out of which appeal no. 89 of 1937 arises, the appellant claimed the ownership of eighteen lankas, but only succeeded in respect of two of them. the suits out of which appeals nos. 151 and 152 of 1938, arise were dismissed in their entirety. all the suits were tried together by the subordinate judge of cocanada and were decided in one judgment. in appeal no. 89 of 1937 the respondent has filed a memorandum of cross objections which challenges the correctness of the subordinate judge's decision that the appellant' had established ownership of two of the.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. These three appeals arise out of separate suits instituted by the appellant with the object of establishing title to certain lankas, or alluvial islands; in the river Goda-yari. In O.S. No. 52 of 1936, out of which Appeal No. 89 of 1937 arises, the appellant claimed the ownership of eighteen lankas, but only succeeded in respect of two of them. The suits out of which Appeals Nos. 151 and 152 of 1938, arise were dismissed in their entirety. All the suits were tried together by the Subordinate Judge of Cocanada and were decided in one judgment. In Appeal No. 89 of 1937 the respondent has filed a memorandum of cross objections which challenges the correctness of the Subordinate Judge's decision that the appellant' had established ownership of two of the lankas. It is common ground that if the questions of law which arise in Appeal No. 89 of 1937, are decided against the appellant, Appeals Nos. 151 and 152 of 1938, must fail. In the circumstances this judgment will be confined to the main appeal until all the questions arising therein have been dealt 'with.

2. The appellant is the proprietor of the ancient Zamindari of Pittapuram in the Godavari District of the Madras Presidency. The Zamindari was included in the Permanent Settlement of 1801, and on the 5th May, 1803, a sanad was issued by Lord Clive, the Governor in Council of Fort Saint George, confirming the holder's rights in the lands forming the estate. The document, however, did not define the lands, but it is conceded on behalf of the respondent that they must have included the lanka lands of the village of Mulakallanka which was, and still is, situate within the banks of the river. In 1861, the Revenue Department of the Government surveyed this part of the river, and the plan prepared as the result recognised that the appellant was the owner of certain of the lankas then in existence. It is common, ground that the eighteen lankas in dispute in Appeal No. 89 of 1937, were not then in existence. They had, however, all appeared by 1901, when the River Conservancy authorities made, a survey of the river. In a river like the Godavari lankas sometimes appear suddenly, but whether the disputed lankas were formed suddenly or gradually is not to be gathered from the evidence. All that we have is that they were there in 1901. It is also common ground that after their formation the appellant took possession of them and leased to tenants those portions which were fit for cultivation. In 1921, the Lanka Inspector prepared a new. plan, and as the result the appellant was called upon to show cause why he should not be proceeded against under Sections 5 and 6 of the Madras Land Encroachment Act for unauthorised occupation of the disputed lankas. Lengthy correspondence followed between the appellant and the Collector of East Godavari without the appellant being able to convince the Government that his claims were well founded and on the 14th February, 1927, the Collector demanded the sum of Rs. 1,16,229-2-8 as the revenue assessed upon these lands for the years 1917 to 1926, and payment was enforced, On the 26th June, 1927, the appellant was, called upon to vacate the disputed lankas and was informed that in default he would be summarily evicted. Thereupon the appellant filed a suit claiming, (1) a, declaration of his title, (2) the refund of the Rs. 1,16,229-2-8, and (3) an injunction restraining the respondent from evicting him. The suit was originally filed in the Court of the District Judge of East Godavari and numbered O.S. No. 22 of 1927, but in 1929, it was transferred to the Court of the Subordinate Judge of Bajahmundry and in 1936, to the Court of the Subordinate Judge of Cocanada. The reason for the second transfer was that the Principal Subordinate Judge of Rajahmundry had begun the hearing, but had not completed it before he himself was transferred to Cocanada. In the Cocanada Court the suit was re-numbered O.S. No., 52 of 1936.

3. In this part of the river there is a large lanka known as the Pedda lanka, the southern portion of which belongs to the Zamindar of Pittapuram and the northern portion to another proprietor. This lanka was in existence in 1874 and in that year a dispute arose between the two proprietors with regard to the boundary. The dispute gave rise to a suit in the Court of the District Judge (O.S. No. 3 of 1874). The dispute was settled by the District Judge drawing a line between a point on the western bank and a point on the eastern bank. In 1896, there was a boundary dispute in respect of a lanka lying some distance south of the Pedda lanka. On this occasion the disputants were the Zamindar of Pittapuram and the Government. This dispute was settled by the Sub-Collector in a similar manner. The lankas now in suit lie within the lines drawn by the District Judge and the Sub-Collector. The appellant claims that he is entitled to all the lankas which fall within the area bounded on the north by the line drawn by the District Judge, in O.S. No. 3 of 1874, on the east by the eastern bank of the river, on the south by the line drawn by the Sub-Collector in 1896, and on the west by the western bank of the river. In the first place, the appellant bases his claim on the fact that he is the owner of the lands on both banks of the river, which is here non-tidal. He points to the fact that the common law only recognises a right in the Crown to the bed of a river where it is both navigable and tidal. In the trial Court the appellant contended that the river was not even navigable in this part, but the Subordinate Judge held that it was, and the appeal has proceeded on the basis that the Godavari is a public navigable river. In the second place, the appellant claims that by the sanad issued in 1803, the Government granted to the Zamindari the bed of the river in so far as it lies within the area already mentioned. He also claims title to the disputed lankas on the ground that they represent lateral accretions to or reformations of lankas which are admittedly his. The respondent denies the validity of all these claims. The Subordinate Judge held that in India the bed of a public navigable river, whether tidal or not, is vested in the Crown, that the sanad confers on the appellant no title to the bed of the river, and that sixteen of the eighteen lankas represent formations unconnected I with the lands of the appellant. Other questions were raised in the trial Court but the appeal, has been confined to those indicated.

4. The question whether the bed of a public navigable river in India vests in the Crown involves the examination of a number of decisions of the Privy Council,', but before entering upon this task, it will not be out of place to. say something with regard to the nature of the Godayari river. In 1907, Mr. F. E. Hemingway, a member of the Indian Civil Service, compiled, at the instance of the Government, a Gazetteer of the Godavari District, and this contains much useful information. In the course of the description of the river, the author of the Gazetteer says (page 4 of Godavari District Gazetteer):

Among the great rivers of India the Godavari takes rank next after the Ganges and Indus. It runs nearly across the peninsula, its course is 900 miles long, and it receives the drainage from 1,15,000 square miles, an area greater than that of England and Scotland combined. Its maximum discharge is calculated to be one and a half million cubic feet per second, more than two hundred tames that of the Thames 'at Staines and about three times that of the Nile at Cairo.

After describing the river's course to the Eastern Ghats, through which it forces its way, the author proceeds (page 5 of Godavari District Gazetteer):

In flood time the water flows with terrific force.... Native boatmen are much afraid of navigating the river at such times...so great is the action of the stream during floods that the rocky bed has been scoured out to depths popularly supposed to be unfathomable, but which really vary normally from 100 to nearly 200 feet. High floods rise quite 50 feet above the normal level, so that the gorge then encloses a torrent of waters from 150 to 250 feet in depth.

The Godavari flows into the Bay of Bengal and a few miles from the coast it has formed a delta. With regard to this part of the river, the author of the Gazetteer says (page 6 of Godavari District Gazetteer):

Seven traditional mouths are recognised as sacred by Hindus. The holy waters of the Godavari are said to have been brought from the head of Siva by the Saint Gautama, and the seven branches by which it is traditionally supposed to have reached the sea are said to have been made by seven great rishis. The mouths of these are considered especially holy, and to bathe in the sea at any one of them is considered an act of great religious efficacy.

The village of Mulakallanka is some fifty miles from the mouth of the river.

5. It is impossible to compare a river like the Godavari with any river in England, and this is sufficient in itself to make one hesitate to apply to it common law rules with regard to riparian ownership. The great difference in conditions in India from those in England was referred to by J. G. Burn, J., in Secretary of State for India v. Venkatanarasimha Naidu (1919) 11 L.W. 256 where he observed that conditions in Madras are so dissimilar from those in Great Britain that it might well be that the English common law rule should not be applied without modification, and that public rights should be recognised in the beds of rivers which are navigable but not tidal. That this opinion is well founded appears to us to be clear from the judgment of the Privy Council in Sri Balusu Ramalakshmamma v. The Collector of Godavari District Srinath Roy v. Dinabandhu Sen Haradas Acharjya Chowdhuri v. Secretary of State for India in Council (1917 Cri.L.J. 590 Naresh Narayan Boy v. Secretary of State for India and Tharakdas Acharjee Chowdhury v. Secretary of State for India in Council (1935) 69 M.L.J. 171 .

6. In Sri Balusu Ramalakshmamma v. The Collector of Godavari District the Judicial Committee were called upon to decide a case which also concerned newly formed land in the Godavari river. The plaintiff claimed the land as an accretion to a lanka belonging to her, but it was found that the accretion pertained to a lanka owned by the Government higher up the stream. In the course of the appeal the appellant endeavoured to set up a claim to the ownership of the river bed on the strength of being the owner of the land on both banks. This claim had not been suggested in the trial Court and the appellant was not allowed to raise it in the appeal. In the course of the judgment, the Privy Council considered that although there is not in Madras, as there is in Bengal, an express law embodying the principle that gradual allusion enures to the land to which the accretion is made, the rule is equally well established in both the provinces. Their Lordships intimated however, that they had grave doubts whether the presumption applicable to little English rivers applies to great Indian rivers such as the Godavari.

7. The Judicial Committee refused to apply the English common law in Srinath Roy v. Dinabandku Sen . There the appellants claimed to be the proprietors of a fishery in the tidal waters of the Ganges in Eastern Bengal. As the result of a sudden change in the course of the river, the waters of the fishery flowed over private lands, and the respondents pleaded their right to fish in a portion of the channel of which they owned both the bed and the banks. The Board held that the English common law of waters could not be applied in its entirety and that where a right to fish had been granted by the Government the right continues notwithstanding that there is violent change in the course of the river which causes it to flow over private lands. It was pointed out that in the deltaic area of lower Bengal changes occur rarely 'by slow degrees, and often with an almost cataclysmal suddenness. The judgment was delivered by Lord Sumner, who inquired into the extent of the application of the English common law in the United States of America and his investigations showed that some of the States had refused to follow it because it was inapplicable to conditions there. In this connection Lord Sumner said:

The question how far a rule established in this country can be usefully-applied in another, whose circumstances, historical, geographical, and social, are widely different, is well illustrated by the case of navigability, as understood in the law of the different states of the United States of America. Navigability affects both rights in the waters of a river, whether of passing or repassing or of fishing, and the rights of riparian owners, whether as entitled to make structures on their soil which affect the river's flow, or as suffering in respect of their soil quasi-Servitudes of towing, anchoring, or landing in favour of the common people. The Courts of the different States, minded alike to follow the common law where they could, found themselves in the latter part of the eighteenth and the early part of the nineteenth centuries constrained by physical and geographical conditions to treat it differently. In Massachusetts, Connecticut, New Hampshire, and Veermontj where the rivers approximated in size and type to the rivers of this country, the English common law rule was followed, that tidality decided the point at which the ownership of the bed and the right to fish should be public on the one side and private on the other. Other States, though possibly for other reasons since they possessed rivers very different in character from those of England, namely, Virginia, Ohio, Illinois, and Indiana followed the same rule. But in Pennsylvania, North Carolina, Iowa, Missouri, Tennessee, and Alabama, this rule was disregarded, and the test adopted was that of navigability in fact, the Courts thus approximating to the practice of Western Europe.

Lord Sumner went on to add:

The reasoning has been put pointedly in Pennsylvania. Chief Justice Tilghmau, says in Carson v. Blazer (1810) 2 Binney 477 'the common law principle concerning rivers' (viz., that rivers, where the tide does not ebb and flow, belong to the owners of adjoining lands on either side), 'even if extended to America, would not apply to such a river as the Susquehanna, which is a mile wide and runs several hundred miles through a rich country, and which is navigable and is actually navigated by large boats. If such a river had existed in England no such law would ever have been applied to it'.

The present case is concerned with an Indian river more than three miles wide in the relevant area and one which flows through a rich sub-continent for 900 miles.

8. Lord Buckmaster in delivering the judgment of the Privy Council in Haradas Acharjya Chowdhuri v. Secretary of State for India in Council (1917) Cri.L.J. 590 said:

The river Ganges in its course through the district of Dacca rests so uneasily in its bed that its boundaries can never at any moment be defined with certainty that their limitation will be long observed. Frequently the river leaves its course, flows over large tracts of land, leaving other areas bare, and then again its waters recede, giving back the lands submerged in whole or in part to use and cultivation. It is obvious that difficulties as to ownership must arise in these circumstances, and of the extent and complication of these difficulties the present case affords an excellent illustration. The general law that is applicable is free from doubt. The bed of a public navigable river is the property of the Government though* the banks may be the subject of private ownership. If there be slow accretion to the land on either side, due, for instance, to the gradual accumulation of silt, this forms part of the estate of the riparian owner to whose bank the accretion has been made. (See Regulation XI of 1825). If private property be submerged and subsequently again left bare by the water it belongs to the original owner.

In that case the plaintiffs claimed that a large tract of land formerly under the river Ganges formed part of a permanently settled Zamindari in the Dacca District of Bengal. The passage extracted from the judgment in Haradas Acharjya Chowdhuri v. Secretary of State for, India in Council (1917) Cri.L.J. 590 was quoted by Lord Phillimore in Naresh Narayan Roy v. Secretary of State for India in Council and was referred to as stating the principles upon which a tribunal should act in a claim of that kind.

9. The latest pronouncement of the Privy Council is that contained in Tarakdas Acharjee Chowdhury v. Secretary of State for India in Council (1935) 69 M.L.J. 171 which also referred to the ownership of large tracts of land formed by the recession of the Ganges in the Dacca District of Bengal. In this case their Lordships observed:

It is beyond question that the bed of a public navigable river, and the river Ganges undoubtedly belongs to that category, is presumed to be the property of the Government, and not that of a private person.

Neither in this ease nor in Haradas Acharjya Chowdhuri v. Secretary of State for India in Council (1917) Cri.L.J. 590 Was any suggestion made that the tide is a factor in deciding the ownership of the bed of a public navigable river in India.

10. The judgments in these cases would appear to put it beyond doubt that the bed of a public navigable river in India is vested in the Crown, but on behalf of the appellants it has been suggested that they should be ignored by reason of the observations made in the judgments of the Privy Council in Secretary of State for India in Council v. Subbarayudu and Dawood Hashim Esoof v. Tuck Sein (1931) 60 M.L.J. 593 : L.R. 58 IndAp 80 : I.L.R. 9 Bang. 122 (P.C.). The first of these two cases concerned the interpretation of Section 1 of the Madras Irrigation Cess Act, 1865. That section states that whenever water is supplied or used for purposes of irrigation from a river, stream, channel, tank, or work belonging to, or constructed by, Government, it shall, subject to a proviso, be lawful for the Government before the end of the revenue year succeeding that in which the irrigation takes place to levy at pleasure on the land so irrigated a separate cess for the water. The plaintiff owned about twelve acres of land under an inam granted by a Zamindar. The land was bounded by a tidal channel, which was connected with one of the branches by which the river Godavari then reached the sea. The plaintiff took water from this channel for irrigating his land and in consequence the Government levied a water cess. The suit was filed to recover the money which the plaintiff had been compelled to pay. The question was whether the river was one 'belonging to' the Government for the purposes of the section and it was held that a river belonged to the Government when it is the proprietor of the land abutting on the river on both sides, or when the river is tidal and navigable. Their Lordships were not called upon in that case to consider the question whether the bed of a public navigable river in India can be deemed to be owned by the riparian owners when the river is non-tidal. We consider that the judgment should be read as applying only to the particular question raised in that ease.

11. In Dawood Hashim Esoof v. Tuck Sein (1931) 60 M.L.J. 593 : L.R. 58 IndAp 80 : I.L.R. 9 Bang. 122 (P.C.) the plaintiff, who was the proprietor of a saw-mill, constructed on his land a pond in which he proposed to float logs from a creek into which the tidal waters of the Rangoon River flowed. The defendant, who claimed to own the soil of the upper part of the creek, planted piles opposite to the entrance to the plaintiff's pond in order to prevent the passage of logs. Thereupon the plaintiff sued for an injunction directing the removal of the obstruction. He alleged that the creek was a public waterway. The evidence showed that at certain periods of the month the tide reached the most remote part of the creek, but usually the upper part was dry, except for a few hours on five, to ten days in each month when there was sufficient water to float ordinary teak logs to the end. It was held that the evidence did not establish that the upper part of the creek was a public waterway. Sir George Lowndes in delivering the judgment of the Board said that in India it had long been recognised that the beds or channels of tidal navigable waters are the property of the Government in right, of the Crown, and went on to observe:

The principle of the English rule is stated by Lord Cranworth to be that it is only within these limits that the bed can be regarded as in the, nature of unappropriated soil, not capable of ordinary cultivation and occupation. Their Lordships think that this principle is equally applicable to Indian waters, and that the same rule should be applied. The public right of navigation or waterway can only be co-extensive with the right of the Crown or the Government in the bed, and their Lordships are therefore of opinion that the right claimed by the respondent in the present case over the creek cannot extend beyond the limits of 'ordinary' high tides in the sense defined above.

Their Lordships were here concerned with the question whether a small creek was a public waterway and were not considering to what extent the rules of the English common law can legitimately be applied to a rive like the Godavari.

12. After an examination of the questions raised in Secretary of State for India in Council v. Subbarayudu and Dawood Hashim Esoof v. Tuck Sein (1931) 60 M.L.J. 593 : L.R. 58 IndAp 80 : I.L.R. 9 Rang. 122 (P.C.) we cannot regard the judgments in those eases as governing the question under discussion. On the other hand we are of opinion that the judgments of the Judicial Committee to which reference was first made give clear indication of the answer which should be given here. The Court is not bound to apply the principles of the English law when they are manifestly unsuited to the occasion, and the principle relied upon by the appellant is unsuitable here. The Godavari is a gigantic river of supreme importance to millions of people, its waters are regarded as sacred by all Hindus and there is a right in the public to navigate the river. In these circumstances and having regard to the pronouncements of the Privy Council in the cases first mentioned we hold that the Subordinate Judge was fully justified in refusing to recognise by virtue of riparian ownership a right in the appellant to the bed of that part of the Godavari river which flows through his Zamindari.

13. The appellant's claim that the sanad issued in 1803 can be read as a grant to him of the bed of the river in this area does not call for lengthy discussion. There is nothing in the document itself which indicates that the Government intended to vest the bed of the river in the holder of the Zamindari, but the appellant says that this should be inferred because in 1861, the Government recognised in him the ownership of certain lankas and until 1921, it made no claim to the lankas which were formed between 1861 and 1901 and are now in dispute. It is not suggested that the appellant has established a claim to any of these lankas. by reason of adverse possession and the fact that the officials of the Revenue Department of the Government allowed the holder of the Zamindari to take possession of new formations without objection cannot in itself affect the rights of the Crown. It may be that their inaction can be attributed to negligence or connivance. The deciding factor here is the plan prepared by the Revenue Department in 1861. This plan admittedly shows that there were then in the area now claimed by the appellant two. lankas which belonged to the Government and lanka lands of considerable extent which belonged to private proprietors other than the Zamindar of Pittapuram. The plan shows towards the eastern bank a lanka known as the Bobvar lanka and on the western bank a lanka called the Kundevan lanka. Both these lands were-in 1861, the property of the Government and they still remain its property. On the eastern side of the river there is a lanka called the Katavaram lanka and another on the western side one called the Chidippi lanka. These lankas appear on the plan of 1861 and it cannot be disputed that they have always belonged to other Zamindars. In addition the plan shows between the banks of the river in this part lanka lands belonging to the villages of Torredu, Bobvar lanka, Jaliludi and Katavaram in which the Zamindar of Pittapuram has never had any interest. In these circumstances the appellant's claim to a grant of the river bed must be rejected. The wording of the sanad lends no support to his claim and the admitted facts negative any inference being drawn in his favour....

* * * *

14. [Then their Lordships dealt with the evidence relating to the contentions of the appellant that the disputed lankas must be regarded as accretions to lankas admittedly his or reformations of lankas which had belonged to him and accepted the contentions in regard to lankas IV and V only. [The Lankas are referred to by the Roman numerals which they bore in a plan exhibited in the cases.]

15. The Government has filed cross-objections with regard to Nos. XX-A and XXIII which the Subordinate Judge found to be the property of the appellant. In this Court the Government has accepted the finding with regard to No. XX-A and on behalf of the appellant the claim to No. XXIII has been given up. No. XXIII is not a lanka;, it is a shoal covered by water except in the dry weather.

16. As the result of the finding that lankas Nos. IV and V belong to the appellant, he is entitled to a proportionate refund of the Rs. 1.16,229-2-8. Learned Counsel have agreed that the sum involved is Rs. 6,885-11-8. Therefore the decree of the trial Court in 0.8. No. 52 of 1936 will be amended to provide for this. In other respects the decree of the trial Court will stand. In this Court the parties will pay and receive proportionate costs, but in view of the importance of the case the respondent will be allowed additional costs in the sum of Rs. 1,000. In accordance with the provisions of Section 82 of the Code of Civil Procedure the Government will be allowed three months' time in which to make the refund.

17. As the legal issues arising in the main appeal have been decided against the appellant, Appeals Nos. 151 and 152 of 1938 will be dismissed with costs.

18. The long course which this litigation has taken is a matter for regret. As already indicated the main suit was filed on the 4th July, 1927, but no evidence was recorded until the 4th February, 1936. The judgment was delivered on the 14th January, 1937. The memorandum of appeal was filed on the 30th March, 1937, but the appeal was not called for hearing until the 3rd November, 1941, more than fourteen years after the institution of the suit. The congestion of cases in the Courts of this province cannot be made the excuse for this regrettable state of affairs. One has only to glance at the case diary in the trial Court to learn that the parties themselves are largely to blame for the leisurely progress which this suit has made. If they had been as diligent as they should have been, the questions raised would have been decided long ago. We attach no blame to the Subordinate Judge who tried the case. On the other hand we consider that he has dealt with all the questions arising in the suit in a very able manner.

19. After this judgment had been delivered, the learned Government Pleader informed the Court that the appellant owned no lands on the western bank of the river in this area and not all the lands on the eastern bank. This was admitted to be the case by Mr. Raghava Rao who has appeared with the learned Advocate-General for the appellant. When the appellant's case was argued by the learned Advocate-General, we understood the argument to be based on the ownership by the appellant of the lands on both the banks of the river, and we also understood this to be accepted by the learned Government Pleader, although we gathered that the Government claimed to be the owner of land immediately beneath the banks. The position now disclosed does not affect our conclusions on the question involved in the appeal whether of law or of fact, but if it had been disclosed during the arguments it would have simplified matters in some respects.

Decree in O.S. 52 of 1936 modified and the other appeals dismissed.


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