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Olappamananna Nanakal Neelakandam Nambudripad, Karnavan and Manager Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in55Ind.Cas.770
AppellantOlappamananna Nanakal Neelakandam Nambudripad, Karnavan and Manager
RespondentThe Secretary of State for India in Council
Cases ReferredIndia v. Ashtamurthi
Excerpt:
water rights - non-tidal and non-navigable river, accretions in--riparian owners, rights of--sovereign rights--madras land encroachment act (iii mad. of 1905), effect of, on riparian rights--title to land, wihether affected by submersion--identification of land--palghat taluk--custom as to rights of crown in river-beds, existence of--civil procedure code (act v of 1908), section 100--custom, proof of, whether question of law--appeal, second--pleadings and proof--plaintiff failing to prove entire case, effect of--decree, partial, whether can be given. - - this decision by the collector was taken in consequence of a reference to the government pleader whose reply has bean filed as exhibit dcc xii, in which he expressed his opinion that in dealing with the respective rights of government.....spencer, j.1. this suit was brought by a jenmi or landowner of south malabar to obtain a declaration that the suit land forming the bed of a thodu or stream, called pulliyampalli puzha or thcdu, and the lands on both sides of it belong in jenm to him and that government has no jenm right over the suit plots, and to recover the same, the district munsif of ootapalam who tried the suit gave the plaintiff a decree accordingly, but the subordinate judge of south malabar at calicut who heard the appeal modified the judgment of the district munsif and dismissed the plaintiff's claim in respect of the items now in dispute with costs.2. the items now in dispute are items nos. 1 to 4 forming the old bed of the stream and items nos. 6 to 8 which are part of the present bed. item no. 5 is not.....
Judgment:

Spencer, J.

1. This suit was brought by a Jenmi or landowner of South Malabar to obtain a declaration that the suit land forming the bed of a Thodu or stream, called Pulliyampalli Puzha or Thcdu, and the lands on both sides of it belong in Jenm to him and that Government has no Jenm right over the suit plots, and to recover the same, The District Munsif of Ootapalam who tried the suit gave the plaintiff a decree accordingly, but the Subordinate Judge of South Malabar at Calicut who heard the appeal modified the judgment of the District Munsif and dismissed the plaintiff's claim in respect of the items now in dispute with costs.

2. The items now in dispute are items Nos. 1 to 4 forming the old bed of the stream and items Nos. 6 to 8 which are part of the present bed. Item No. 5 is not subject to appeal. The 1st defendant in the suit is the Secretary of State for India in Council. This defendant adduced a large quantity of documentary evidence to show that from 1855 till 1880, the Government laid claim to the beds of all rivers in Palghat and was levying a Jenmabhogam on persons who occupied the beds, and in some cases was selling Jenm right to the occupiers. In a similar case, Original Suit No. 330 of 1892, the appeal in which was heard by Mr. Benson, (afterwards Sir Ralph Benson, a puisne Judge of this Court) similar evidence was produced of the Government having granted Cowles and collected Jenmabhog for river accretions in certain rivers in the Palghal Taluk between 1859 and 1892, and that between 1863 and 1885 the Government sold Jenm titles in a number of such accretions in the Palghat Taluk, and private persons purchased titles from Government in such cases. The District Judge's judgment was not brought up to the High Court in second appeal, but as it stands, it is cartainlya recognition by a judicial tribunal of the existence of the custom which has been sought to bo proved in the present case. The Subordinate Judge was evidently influenced by this judgment, Exhibit DL, and relying on the evidence as to the assertion of title by Government to river-beds in Palghat Taluk, he found that a local usage prevailed in that Taluk by which non-navigable and non-tidal rivers belonged to Government in Jenm. He qualified this finding by saving that it is not supported by the general law of the Presidency or by any general custom prevailing in the Malabar District.

3. Now the proof of custom arising out of the facts found in this case appears to me to be defective in the following particulars:

(a) It is not a custom or usage of great antiquity, seeing that it is not proved to have existed before 1855. In this connection see the observations of Sankaran Nair, J., in Meenakshi Amma v. Secretary of State for India 24 Ind. Cas. 517 : 26 M.L.J. 385 : 15 M.L.T. 847 : 1 L.W. 307 : (1914) M.W.N. 521.

(b) Its value is diminished by the fact that in 1855 when a question arose about the levying of Jenmabhogam in several parts of the District, notably Walluvanad Taluk, the then Collector, Mr. Logan, decided not to levy Jenuiabhogam for the reason that in non-navigable and non-tidal rivers, the accretions belonged to the riparian landlords, see Exhibit FF. This decision by the Collector was taken in consequence of a reference to the Government Pleader whose reply has bean filed as Exhibit DCC XII, in which he expressed his opinion that in dealing with the respective rights of Government and of private parsons to accretions in rivers the general principles of English law might be applied as a guide, except where a well established local usage to the contrary was proved.

(c) As regards Palghat Taluk the custom or usage found by the Subordinate Judge to exist has not been traced to any definite local origin.

4. Now if the 1st defendant, who had to open the case, has failed to prove the existence of a special custom prevailing in Palghat Taluk, what than is the position of the plaintiff? He is admittedly a riparian owner, see the statement of the Tahsildar of Palghat, D.W. No. 1, who stated that lands on both sides of the old Thodu site belonged to the plaintiff and that Government has no Jenmam right to the bed of the present site of the stream. In the Full Bench case Vasireddi Venkata Lakshmi Narasamma v. Secretary of State 47 Ind. Cas. 606 : 41 M.P 840 : 35 M.L.J. 169 : (1918) M.W.N. 662 the question referred to the Full Bench was whether a grantee from Government who holds lands bounded by a non-navigable river, has a right extending to half the bed of the river. It was held that there was a presumption in his favour and that the onus of showing that the grant did not cover the bed ad medium filum aquae lay on the grantor. That was a case of grant from Government of the lands adjoining a non navigable river or stream. The importance of it is that it recognises the principle of ownership of the river-bed, usque ad medium filum aquas, residing in a reparian owner as part of the common law of India. No doubt this presumption can be rebutted and in some cases the amount of evidence required to rebut it is very slight. But in this case, if the 1st defendant has failed to establish the local usage set up by him, it cannot be said that plaintiff's title as riparian owner is in any way impaired. Madras Land Encroachment Act (III of 1905) declares that 'all public roads, streets and the beds of the sea and rivers and streams and all lands wherever situated, save in so far as the same are the property...of any person holding under ryotwari tenure including that of Jenmi in Malabar are the property of the Government.' But as pointed out in the Full Bench decision Vasireddi Venkata Lakshmi Narasamma v. Secretary of State 47 Ind. Cas. 606 : 41 M.P 840 : 35 M.L.J. 169 : (1918) M.W.N. 662 this Act does not affect pre-existing rights. A similar view was taken in another Full Bench case Chinnappan Chetty v. Secretary of State for India 49 Ind. Cas. 673 : 42 M.P 289 : 36 M.L.J. 124 : 25 M.L.T. 121 : (1919) M.W.N. 120 : 9 L.W. 289 in which Abdur Rahim, J. also observed that the right of Government of regulating the distribution of the water of a river or stream does not supersede the rights of riparian proprietors and does not necessarily imply the ownership of the bed by the Government.

5. Having thus expressed my opinion that the plaintiff has prima facie the rights of a riparian owner in the plots now in suit, it remains to say a few words on the decisions cited at the hearing of the second appeal. It was held so long ago as 1830 in Secretary of State for India v. Vira Rayan 9 M.P 175 that in Malabar there was no presumption that forest lands were the property of the Government, and in Secretary of State for India v. Kadirikutti 13 M.P 369 the English law of riparian owership was applied to accretions caused By alluvion in rivers so far as they were not excluded by enactment or legal usage. In another case, Secretary of State for India v. Ashtamurthi 13 M.P 89 in the same volume, the rights of Jenmis to uncultivated waste lands, in their Jenms were recognised, and it was held that their rights did not pass in consequence of the sale of such land by Government for arrears of revenue due from the occupants. In Meenakshi Amma Secretary of State for India 24 Ind. Cas. 517 : 26 M.L.J. 385 : 15 M.L.T. 847 : 1 L.W. 307 : (1914) M.W.N. 521 Sankaran Nair, J., laid it down that in Malabar the English law as to ownership in beds of natural streams, namely, that the beds vest in the adjoining proprietor and not in the Crown, is the law of the locality. In his judgment he referred to the judgment of the District Judge, Mr. Benson, Exhibit DL, and expressed doubts whether that decision which supported a local custom in derogation of the general law would be followed in future. Sadasiva Aiyar, J., who sat with him, dissented from his conclusions on the case and also expressed a doubt whether the beds of natural streams and the sites of public paths even in Malabar did not belong to Governments as a rule. I have already referred to the judgment of Mr. Benson as District Judge Exhibit DL, on appeal from the judgment of Kelu Eradi, District Munsif of Palghat (Exhibit DXLIX), which it confirmed on the evidence before the Court, Another judgment was passed in 1908 by Mr. Ananthan Nair, Subordinate Judge of Calicut, Exhibit DLI, in which he dealt with riparian ownership to the bed of streams in the Ernad Taluk. Differing from the lower Court he decided that the land in suit was the Jenm of Government, giving as his reasons that there was a presumption in favour of Government that the beds of natural streams belong to them. He defined 'natural stream' 'as one which has existed from time immemorial, not an artificial stream coming into existence through the intervention of human agancy.' If his opinion were correct, no one in Malabar would have a right to a spring rising in his own garden or field. The Subordinate Judge in the present case drew an analogy from roads and the bads of navigable rivers that such property could not have belonged to private owners, as it was public policy that Government should keep roads and navigable rivers under control in the interests of the public. That analogy which applies to streams and roads, which are public thoroughfares, cannot be followed in the case of streams which are not navigable, as there is no public interest in such except in so far as they form part of an irrigation system.

6. Mr. Ramachandra Aiyar for the appellant took a preliminary objection in the case that the Government did not plead in their written statement the existence of local usage in the Palghat Taluk vesting the ownership of beds of non navigable and non-tidal rivers in the Government, and, therefore, the lower Court should not have admitted evidence as to the peculiar usage in the Palghat Taluk only, seeing that issue 4 in the suit was, 'whether the stream in question belongs in Jenmam to plaintiff or to 1st defendant either by law or custom of Malabar.' Now Palghat Taluk is a unit in the Malabar District and the whole includes the part. It has already been held by a Bench of this Court that the plaintiff was not prejudiced in consequence of the manner in which this issue was framed upon the defendant's pleadings as he failed to show that he would have adduced different evidence, if he had known that the custom set up by the 1st defendant related to Palghat Taluk only. As observed in Mohidin v. Shivlingappa 23 B.K 666 : 1 Bom. L.R. 170 if a party fails to prove all that he wishes to prove, there is no reason for denying him the right which he succeeds in establishing. I think that there is no substance in this objection and that it should be dismissed. But as the plaintiff has succeeded on the main issue, it is unnecessary to deal with the authorities quoted in support of this preliminary objection. As my learned brother agrees with me, we allow the second appeal and reversing the Subordinate Judge's judgment, restore that of the District Munsif with costs here and in the lower Appellate Court. The memorandum of objections is dismissed with costs.

Krishnan, J.

7. This second appeal raises the question of ownership of river-bed lands in non-tidal and non-navigable rivers between the Government and the private Jenmi, in the Palghat Taluk of South Malabar.

8. There ware 8 items in suit. Of these items No. 5 has been found to be the plaintiff's private Jenm and to have no connection with the river; there is no appeal from the decree of the lower Appellate Court in the plaintiff's favour regarding it. Items Nos. 1 to 4 formed the bad of the 'Pulliyampatti Thodu' before it recently changed its course and items Nos. 6 to 8 form part of its present bed. The stream itself ia a small one with apparently very little water in it in the hot season. The plaintiff's allegation that it has an artificial water-course dug on his own lands was not proved, it is found to be a natural stream and from its very description it is clear that it is neither tidal nor navigable.

9. The District Munsif held that the ownership of all the lands was in the plaintiff but on appeal the Subordinate Judge has held that except as to S. No. 252B, which is said to be a part of items No. 1 and 2, the Government is the owner of the rest of the lands. The plaintiff has appealed to us and claims all the lands to be his and the Government has filed a memorandum of objections claiming S. No. 252B for themselves.

10. Taking items Nos. 5 to 8 first, it is found by the lower Appellate Court and it is not disputed that they were lands belonging in Jenm to the plaintiff before they were submerged by the recant change in the course of the river. It is clear law that a person does not lose his title to his lands by mete submersion under water, so long as the land is identifiable. 'This view was laid down by the Privy Council so early as in the case Rajah Leelanund Singh v. Rajah Mohendernarain 13 M.I.A. 57 : 13 W.R. 7 : Sar. P.C.J. 482 : 2 Suth. P.C.J. 286 : 20 E.R. 473 and has since been consistently followed. Non-resistance to vis major such as flood, which causes the change of a river's course, cannot be treated as any evidence of acquiescence or of abandonment of rights by plaintiff, as the Sub-Judge remarks. In fact the Government Pleader conceded, and rightly so, that the decree of the Sub-Judge regarding these lands was not supportable. Plaintiff must be given a decree for them as prayed for. The question of water rights in the river is not before us and our decree should not be taken to have affected them in any way.

11. Taking next S. No. 252B about which Government has filed a memorandum of objections, it has been found by the lower Appellate Court that plaintiff has proved his title to that land before it was submerged by the river when it changed its course on a former occasion; the river is said to have changed its course twice. This finding was not attacked before us and accepting it, it follows from the principle above stated that the land belongs to the plaintiff. The only objection urged by the learned Government Pleader to this part of the case was that the plaintiff's original ownership of land was not set up in the plaint, and that he should not have been allowed to make out a new case afterwards. I consider that paragraph No. 3, Clauses (1) and (3), of the plaint do state that the land over which the river originally flowed was plaintiff's Jenmam the fact that that statement was coupled with an assertion that the water-course itself was one dug by the parties does not affect that statement. The decree of the Sub Judge regarding this item must, therefore, be confirmed.

12. Finally we have items Nos. 1 to 4, excluding S. No. 252B, to consider. As regards these lands the plaintiff failed to prove his title to them before submersion. But there is no allegation or proof that they were the Jenmam of any other landlord. Plaintiff is a very rich Jenmi owning extensive lands in this neighbourhood and his learned Vakil asserts that all the lands in this locality, including these items, are his Jenm. But we must accept the finding that he is not proved to have been the Jenmi of these lands before submersion in second appeal, as it is one of fact. It is then argued for him that as the admitted riparian proprietor of the lands on both banks of the river adjoining these lands, items Nos. 1 to 4, when the river ran over them, he is entitled to them under the rule that land in the bed of a non navigable river belongs to the adjacent riparian proprietor up to the middle of the stream, 'ad medium filum aquas'' as it is usually put. If this rule of law applied he must be held to have been the owner of the whole bed as he claims, as admittedly he was the riparian proprietor of the lands on both banks. The claim of the Government to these lands cannot be supported by anything in Madras Act III of 1905, as Section 2 of that Act expressly reserves, as pointed out in the Fall Bench case in Chinnappan Chetty v. Secretary of State for India 49 Ind. Cas. 673 : 42 M.P 289 : 36 M.L.J. 124 : 25 M.L.T. 121 : (1919) M.W.N. 120 : 9 L.W. 289 the prior rights of parties including those of a Jenmi in Malabar.

13. The learned Government Pleader has, however, put forward two answers to the plaintiff's contention. He first contended that the rule in question did not apply to Malabar at all and, secondly, that in any case its applicability was excluded in the present case by a special custom having the force of law existing in the Palghat Taluk where these lands are situated, by which all river accretions and river bed lands there vested in the Crown.

14. For the first part of the argument he relied mainly on the observtions of Sadasiva Aiyar, J., in the case in Meenakshi Amma v. Secretary of State for India 24 Ind. Cas. 517 : 26 M.L.J. 385 : 15 M.L.T. 847 : 1 L.W. 307 : (1914) M.W.N. 521. But as the learned Judges who took part in that case expressed different opinions on the point, that case cannot be treated as of much authority on it. The question of riparian rights to the bed of a non-navigable river has since recently been considered by a Full Bench of this Court in Vasireddi Venkata Lakshmi Narasamma v. Secretary of State 47 Ind. Cas. 606 : 41 M.P 840 : 35 M.L.J. 169 : (1918) M.W.N. 662 and the ruling there is distinctly in favour of the plaintiff's contetion. Though the actual decision was on the construction of a grant, the learned Chief Justice who delivered the judgment of the Full Bench clearly adopts the view that the rule in question is a part of the common law of India and that there is a presumption in favour of its applicability in general. The presumption must be rebutted by the party alleging the contrary. After that decision it is unnecessary to consider the previous decisions on the point in detail as they are all referred to in it. I, therefore, agree with my learned brother that plaintiffs must be held to be prima facie entitled to these lands, unless the custom set up is proved.

15. It was also suggested by the learned Government Pleader that Malabar being a ryotwari tract with periodical re-settlement of land revenue, the Government must be taken to be the proprietor of the soil as in other ryotwari tracts and that the rule in question should, therefore, be held to apply rather in their favour as the real riparian proprietors than against them. This suggestion of proprietorship in Government is opposed to what has been laid down in decided cases regarding Jenmis' rights in Malabar. It has been recognised that Malabar Jenmis are undoubtedly proprietors of the soil. This question is dealt with at length by Sankaran Nair, J., in the case in Meenakshi Amma v. Secretary of State for India 24 Ind. Cas. 547 : 26 M.L.J. 385 : 15 M.L.T. 247 : 1 L.W. 307 : (1914) M.W.N. 521 already referred to above, and he baa collected all the authorities there and has referred to the leading owe on the point in Secretary of State for India v. Vira Rayan 9 M.P 175. It may be remarked that Sadasiva Aiyar, J., in his dissenting judgment in the same case does not controvert the proposition that 'Malabar is a land of private proprietors.' The same view was stated by Parker, J., in Secretary of State for India v. Ashtamurthi 13 M.K 89 In a later case in the same volume page 369 Secretary of State v. Kadirikutti 13 M.P 369 the question arose with reference to the ownership of a river accretion itself in a Malabar river. Though the case was decided in favour of the Crown, it was on the ground that the river was navigable and tidal at the spot and the accretion was a sudden one. The observations in this case show clearly that if the river bad been non-tidal or non-navigable, their Lordships would have decided against the Crown and in favour of private ownership. It may be said that by this case the general proposition that there is no presumption in Malabar that waste lands are the property of Government has been abrogated to this extent that 'land covered by water of the sea or of a tidal river is not within the category of waste lands', to which the rule of private ownership applied (see page 375); but no farther. The learned Government Pleader's argument based on the alleged proprietorship of the soil in the Government must, therefore, be disallowed.

16. It remains to consider his last contention based on the alleged existence of a special custom in the Palghat Taluk. The District Munsif has found against the custom but the Sub-Judge has supported it, The question whether the facts proved and found satisfy the requirements of law to establish a custom is a question of law and one which we can and must consider in second appeal. See the observations of the Privy Council in Palaniappa Chetty v. Sreemath Deirasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 40 M.P 709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 I.W. 222 : 44 I.A. 147 and the ruling of this Court in Kumarappa Reddi v. Manavala Goundan 44 Ind. Cas. 699 : 41 M.P 374 : 23 M.L.T. 44 : 34 M.L.J. 104 : 7 L.W. 243 : (1918) M.W.N. 850. We have been taken by the learned Pleaders on both sides through the evidence regarding this alleged special custom.

17. Before, however, considering that evidence it must be pointed out that the Government in their written statement did not really sat up any special custom in the Palghat Taluk, but set up a general custom as prevailing throughout Malabar; fie attempt of the Subordinate Judge to make the existence of a comma after the word 'local usage' in paragraph 6 of the written statement that such a custom confined to the Palghat Taluk was sat up seems to me to be futile.

18. In fact the learned Government Pleader did not attempt to support his view. The form of issue 4 removes all doubt in the matter and shows what the parties intended by the pleadings. Mr. Ramachandra Aiyar for the appellant argued that the Government should not have been allowed to change their case in appeal to one of a special custom in Palghat. It is, however, open to a party who sets up a territorial custom to prove it with reference to a smaller area included in the larger area in which it was alleged to exist, when he is unable to prove it for the whole extent, see Mohidin v. Shivlingappa 23 B.P 666 : 1 Bom. L.R. 170 However, if on the evidence on record I was of opinion that a prima facie case in support of the smaller custom had been made out by the defendant, I should have been inclined to frame a definite issue about that custom and remitted it for trial to give an opportunity to the plaintiff to adduce further evidence for the reasons stated in his affidavits filed in this Court. In the view I am taking it is not necessary to pursue the matter further.

19. I should now consider the evidence which has been put forward in support of the custom. It has been fairly summarised by both the Courts. We start with Exhibit 47 (printed on page 44 of the paper-book), where the Government for the first time in 1855 seem to have asserted their right to a river accretion. They were issuing similar Cowles till 1863, when the policy of selling the Jenmi right in such lands seems to have been adopted. Till 1881 no one contested the Government's right, but in that year one Ekkanath Karimal claimed a river accretion as belonging to him. He does not, however, seem to have pursued the matter beyond putting a petition to the Collector which was rejected. The same policy was continued till 1884. At this stage comes in an important document Exhibit FF, which seems to indicate a change in the policy of the Government. It is an order of Mr. Logan, Collector of Malabar, based on the opinion of the then Government Pleader, which was filed in the Appellate Court as Exhibit DCCXII, recognising that in rivers in Malabar which are neither navigable nor tidal the river accretions belonged to the riparian landlord and not to the Government. This order seems to have been circulated to all the Taluks in Malabar. No doubt the Government Pleader's opinion recognized that the rule would not apply where there is a special custom to the contrary. But it is significant that there is no evidence of any levy of Jenmabhogam even in Palghat Taluk between 1885 and 1858, by which time Mr. Logan had retired and left Malabar. In 1838 the old practice was re-started but this time the claim of the Government was challenged in a Court of law. The decisions of both the District Munsif and of the District Judges Exhibit, DXLIa and DL, were, however, in favour of the Government and recognised the alleged custom as a valid one. This case was not brought up to the High Court. Nevertheless the Government seem to have treated it as settling the question in their favour and to have continued the practice up to date of claiming river accretions as belonging to them.

20. That is how the evidence stands. To prove the existence of a valid custom having the force of law it is necessary to establish (1) that it was ancient, (2) that it was continued and acquiesced in, (3) and that it is reasonable. If any of these conditions fails, the custom cannot be upheld as valid. The question for consideration is whether there requisites have been complied with.

21. Mr. Ramachandra Aiyar has drawn our attention to the case in Secretary of State for India v. Asthamurthi 13 M.P 89 which is a very important and instructive case on this question as it dealt with a similar claim by Government with reference to waste lands in Malabar. Mr. Justice Parker in an elaborate judgment has traced the history of the way in which Government began to issue Cowles in Malabar for cultivation of waste lands and gives the various steps adopted, in the course of their policy of claiming the Jenmi right in such lands. There is no reason to think, and it is not likely, that Palghat Taluk was treated differently from the other Taluks, or riverbed lands from other waste lands. Though the case itself arose in the Ernad Taluk, the judgment is perfectly general and applies to all Malabar. Beading that judgment it is a fair inference to hold that Exhibit 47 must have been issued in pursuance of the same policy that prevailed elsewhere. It follows that Exhibit 47 probably represents the first assertion of title by Government to river-bed lands in the Taluk and that there is no scope for any inference or presumption that the same practice had existed previously. That judgment shows that the claim to waste lands was not based on any anterior custom but was made as a matter of policy. In fact if there was any antecedent practice in the matter before us, one may fairly expect Government would have been in a position to adduce evidence about it; they have rot done so. There is no evidence that such a custom existed during the previous periods of Hindu or Muhammadan domination in Malabar. The reference by the Sub-Judge to the statement in Keralolpathi which gives the traditions of Malabar is mistaken, as the word is not (attuthurithikal) as the Sub-Judgs thinks but (attu thurithkta) which means as the District Munsif says, to regulate (the course of) the river It has no reference to any islands as supposed by the Sub-Judge.

22. In this state of evidence can we say that the custom has been proved to be sufficiently ancient to be recognised as the law of the land? A similar question was considered in Secretary of state for India v. Ashlamurthi 13 M.P 89 above referred to, with reference to waste lands generally and answered in the negative. 1 agree with my learned brother that our answer in the present case must also be in the negative, more especially because as shown above the practice for the last 60 years or so relied on has not been uniform or continuous during the whole period. I think the Munsif was right in attaching much importance to Exhibit FF. It expressed the deliberate opinion of a very experienced Collector of Malabar who, it may be observed, is the author of the Malabar Manual and I have no doubt that the practice of claiming river-beds ceased for a time even in Palghat Taluk on account of it. I am unable to agree with the Sab-Judge that this document should be kept out of consideration because it arose with reference to another Taluk, viz., Walluvananad. Mr. Logan did not evidently treat it as applying only to that Taluk, and it is significant to remember in this connection that even in this case in their pleadings the Government made no distinction between the Palghat and other Taluks. It seems to me the Munsif was right in holding that Exhibit FF showed a break in the continuity of the practice.

23. Furthermore it has been pointed out to as that Exhibit 47 itself reserves 'the right of any persons and the Bohgams that may arise therefrom,' and says that these 'would be according to local custom.' What the exact meaning of this reservation is and what the local custom referred to is, are not explained. It may be that Government did not mean to interfere under Exhibit 47 with the rights of private Jenmis, as Mr. Ramachandra Aiyar contends; his suggestion is supported by what appears in Secretary of Slate for India v. Ashtamurthi 13 M.P 89 to have been the policy of the Government about the date of that document. If this is correct, Exhibit 47 can hardly be relied on in proof of a custom of exclusive Jenm right in the Government. It is also pointed out that there is an indication in Exhibit 294 that Chennath Nair owned some river-bed lands but without knowing more about the matter, I am not able to attach much weight to it.

24. The practice was also challenged by private Jenmis more than once as stated above though they failed each time. It must, therefore, be held that the second requisite above stated for a valid custom has also not been properly complied with.

25. Great reliance has been placed on the judgment of the District Judge, Exhibit DL, in favour of the Government and it is claimed that the custom had been judicially recognised by it and should be upheld by us. That judgment cannot be treated as an authoritative recognition of the custom settling its validity, as it is not that of the High Court. It can only be looked upon as an instance where the Government asserted its title successfully in a Court of law. No doubt it is entitled to weight, but it is not conclusive. As pointed out by the District Munsif, Exhibit FF was not before the Court in that case and thus it loses its weight to a great extent.

26. Inspite of that judgment it is clearly open to us to consider the validity of the custom set up on the evidence before us. I agree with my learned brother, whose judgment I have had the advantage of reading, that a custom or local usage in the Palghat Taluk as alleged has not been made out.

27. The result is items Nos, 1 to 4 should also be wholly decreed to the plaintiff. I, therefore, agree to the order proposed by my learned brother.


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