1. The Second Appeal arises out of a suit to recover six plots of land in an inam village, belonging to. Chokkanathaswamy Temple of Virudupatti, of which the plaintiff and 2nd defendant are trustees. The 1st defendant denied the plaintiff's title to those plots generally; in particular, it was also contended that the 1st defendant was entitled to plot II by purchase from the 2nd defendant (in his personal capacity), to plot II by tracing title to one K. Shanmugam Pillai and as to plot IV by tracing title to one Saravana Muthu Pillai.
2. It was also mentioned that a portion of plot III was known as Vannan Ooruni that a portion of plot V contains the memorial stones of the Chukkiliars and is known as Chukkiliar Malai and that plot VI was originally a public path, but has been closed about 20 years ago, by Messrs. Ralli Brothers and fell into disuse. Except as implied in these statements, no plea that any of the plots was dedicated to communal purposes and that the title to them is vested in Government was raised, nor any express issue taken, the 3rd issue raising the question of the plaintiff's title generally.
3. After the beginning of the trial, the 1st defendant applied for two additional issues, raising the question whether the suit lands are communal lands and therefore the plaintiffs had no title to them and whether the Civil Courts have jurisdiction. The Munsif was of opinion that these points were not raised in the written statement and rejected the application on the 14th March. On the 26th March, another application was filed, praying for amendment of the written statement but was also rejected. The Munsif then decreed the suit.
4. On appeal, the Subordinate Judge held that not merely plot III (as contended by the defendant) but also plots I to III (as contended by the plaintiff) constituted the Vannan Ooruni. It is clear from the contentions of the parties on this point, that the question whether Vannan Ooruni was communal land and the plaintiff had therefore no title to it was entirely absent from the minds of the parties; for, if they had the faintest idea that Vannan Ooruni was communal land and therefore the plaintiff had no title to it, the contentions would have been just the opposite of what they are. As to all these plots the Subordinate Judge found against the title of the defendants. He also finds that all the suit plots are described as poramboke in the documents. The defendant taking advantage of the Subordinate Judge's finding (which purported to be in favour of the plaintiff), that plots I to III constituted Vannan Ooruni contended that the three plots should be regarded as communal land, and a similar contention was also raised about plots IV to VI.
5. From the above narrative of the course of the proceedings in the First Court, it is clear that as to plot IV the defendant never intended to raise such a plea as to plot III; though he described it as Vannan Ooruni he did not intend to base such a pica on the description of the land as Vannan Ooruni; for, if such a plea was meant to be raised by him, he would not have hotly contested the plaintiff's case that plots I to III constituted Vannan Ooruni and not plot III alone, since the plaintiff's case would be favourable to him and that any intention to raise the plea could only be implied, in respect of plot V (portion) and plot VI.
6. The Subordinate Judge having found that the plots were porarnboke, seems to have assumed that they must be communal porambokes and without any further discussion, his finding being that the plaintiff failed to prove that the suit lands are not poramboke communal lands dismissed the suit.
7. The Inam village belonging to the plaintiff, all lands within the ambit of the village prima facie belong to the plaintiff and it is for the defendant to raise the plea that the suit lands are communal poramboke lands and therefore do not belong to the plaintiff and to allege and prove the facts necessary to substantiate the contention. So far as plot V (portion) and VI are concerned, the facts are certainly in the written statement; but so far as plot IV is concerned, no fact is alleged which can help the plea; as to plots I to III, the fact that one is Vannan Ooruni was mentioned not for supporting the present plea, which is sought to be extended to plots I and II, taking advantage of the Subordinate Judge's finding.
8. It is therefore clear that the trial before the lower Appellate Court must be unsatisfactory as the parties could not have adduced all their evidence, since the present contention was not present before the minds of the parties.
9. As to plot IV, we do not think that the defendant is entitled to any opportunity of changing his plea into one of an entirely inconsistent character. He said it was purchased and enjoyed as private land and that the path in it was private. As to this plot, the findings of the District Munsif must be restored.
10. As to the other plots, the case in Narayanaswami Naidu v. Karaturi Venkayya (1910) 7 M.L.J. 366 no doubt shows that communal land are not vested in the landholder; but Section 20 of the Estates Land Act shows that they revert to the landholder, even in an estate, if the character of the land as communal land has ceased. Moreover, in the case of Inam villages also, it is true that the grant of a whole inam village must be taken, subject to the rights of the community. In the case of burial grounds, threshing floors, etc., such rights (so long as the character of the site does not change) may be regarded as vested in the Government. Venkatarama Sivan v. The Secretary of State : (1919)36MLJ203 . But where the rights of the public amount to a bare easement, there is no reason to hold that the inamdar has no title to soil. In the case of an irrigation tank, irrigating certain lands, it is doubtful if there are any rights belonging to the community as the rights of irrigation appertain to the lands irrigated, as easements and the grant must be taken to be subject to the easements. If the tank is one for public drinking and bathing, the grant may be subject to the rights of the public for these purposes; but there is no reason to hold that the bed does not belong to the inamdar.
11. On the other hand, it seems proper to hold that it belongs to him. So that, if the tank ceases to be a tank, all rights vest in him and if it continues to be a tank, in the interests of the public, the proper person to take action against a trespasser is the inamdar, who is still the owner of the bed and can take action to remove the trespass. So that, in respect of plots I to III, even assuming that Vannan Ooruni was a pond, dedicated for communal purposes and continued to be such up to the date of the suit-which is doubtful the plaintiff is the proper person to maintain the suit to remove the trespass by the defendant.
12. As to the portion of plot V, which is Chukkiliar Malai, there seems to be an arrangement, by which the Chukkiliara obtainod another ground for their purposes and surrendered the suit land. The effect of this has to be considered. Anyhow, if the Chrkkiliars have ceased to use it for thoir purposes, it is possible to find that it has lost the character of Chukkiliar Malai.
13. The Subordinate Judge has not considered the effect of Ex. M. and there must be a finding on the point. Similarly as to plot VI, there must be a finding as to whether it was a public path and whether it has lost that character by disuse or otherwise. We accordingly call for findings on the following two points:
(1) Whether the portion of plot V, known as Chukkiliar Malai, has ceased to be Chukkiliar Malai, at the time of the suit, by disuse or arrangement or otherwise?
(2) Whether plot VI was dedicated as a public path and when? Whether it has lost the character of a public path by disuse or otherwise?
14. Fresh evidence may be adduced by both parties. The finding will be submitted in two months and 10 days will be allowed for filing objections.
The Subordinate Judge submitted the following findings viz., (1) that plot V has ceased to be 'Chukkiliar Malai,' at the time of the suit by-disuse and by arrangement, under Ex. M. and (2) that plot VI lost its character as pathway, by disuse at least during the last 10 to 12 years.
14. The appeal came on for final hearing, before Ramesam and Jackson, JJ.