1. These are appeals by the claimants against the decrees of the District Court of Godavari, in Appeal Suits Nos. 591 and 593 of 1903, confirming the decisions of the Forest Settlement Officer of Godavari, in Claims Nos. 1 and 2 of 1902. These were claims by the Mallavaram and Nadavapalli Estates respectively to land at the mouth of the Godavari which Government, by a Notification dated the 2nd December 1901, proposed to form into a reserved forest. Both claims being intimately connected were dealt with by the lower appellate Court in one judgment, and in this Court the same arguments were put forward on behalf of both sets of claimants. It was first contended that as the appellants were in possession at the date of the notification the lands should not have been notified as a reserved forest. This contention was properly dealt with and overruled by the Forest Settlement Officer in paragraph 7 of his judgment in Claim No. 1. The appellant's pleader did not attempt to argue the matter before us, but contended himself with stating this objection.
2. It was further contended that the right of the Crown would be barred if the claimants succeeded in proving 12 years' adverse possession prior to the coming into force of the limitation section of Act IX of 1871, and if Madras Regulation II of 1802, applied to suits to enforce public rights. The contention was based upon certain remarks in Secretary of State v. Vera Rayan 9 M.k 175. The remarks are at pages 185 and 186 of the report and are as follows:
The clause of Act XV of 1877 which precluded the reviver of a right to sue barred was not confined to that Act but was extended to Act IX of 1871. The words are 'All reference to the Indian Limitation Act, 1871, shall be read as if made to this Act, and nothing herein or in that Act contained, shall be deemed to revive any right to sue barred under that Act or under any enactment thereby repealed'. Had this stood alone and had we come to the conclusion that Regulation II of 1802, Section 18, applied to public rights we should have agreed with the Judge that 12 years' adverse possession would have barred the right of the Crown to sue.' When these remarks were made it was apparently thought that Regulation II of 1802 was repealed by Act IX of 1871. Regulation II of 1802 was not repealed by Act IX of 1871. This was discovered in the course of the argument before us and the contention was then dropped. We have, however, referred to the matter because it seemed desirable to point out the misconception on which the remarks in Secretary of State v. Vera Rayan 9 M.k 175, were based. It is now clear that if the claimants had to establish a title by adverse possession they would have to prove such possession for 60 years before the notification.
3. The main portion of the land in dispute lies between Hope Island on the north and a channel called Neelarva on the south. The District Judge finds that the claimants have been in possession since 1882 of the portion of this tract claimed by each of them.
4. The District Judge has further found that this tract together with that portion of Yalakalatippa which is shown in Exhibit I, consists of island formed in the bed of the sea at the mouth of the Godavari. This finding is attacked but there is, in our opinion, evidence to support it, and we must accept it. No doubt the District Judge is possibly in error in assuming that Exhibit I, a map published in 1842, correctly represents the outlines of the coast and adjacent islands in that year. The survey on which the map is based may reasonably, be supposed to have been made some time before 1842, and between the survey and 1842, some changes in the outlines may have occurred. This possible error, however, in no way affects the correctness of the finding now in question inasmuch as the finding applies to the portion of Yalakalatippa shown in Exhibit I as well as to the land subsequently formed.
5. The District Judge has next found that the (sic) to the islands in question originally vest (sic) in the Crown. It is admitted before us that. (sic) the islands were formed within 3 miles of e main land. The rule of English law is that islands arising out of the sea belong crima facie to the Crown--vide the Law of (sic) Waters, Coulson and Forbes, 2nd Edition age 31. In the absence of local usage or statutory enactment to the contrary, the same rule would apply in British India, vide Secretary of State for India v. Kadirikutty 13 M.k 369. It is argued, however, that the rule of English Law above mentioned no longer holds good owing to the decision in Reg. v. Keyn 46 L.J.M.C. 17. The reason generally given for the rule is that the King is the owner of the soil beneath the sea. Since the case of Beg. v. Keyn 46 L.J.M.C. 17 this reason can apparently no longer be resorted to in support of this rule. But that circumstance by itself is no reason why the ancient rule should not continue to be followed. If it were necessary to find support for the rule it could, no doubt, be found in the well-established rule of the common law of this part of India that waste land which is not the property of an individual or a community belongs to the Government, or it may be correct to regard the title of the Crown as similar to the title by escheat as suggested in Secretary of State for India v. Kadirikutty 13 M.k 369, with reference to the observations of the Privy Council in The Collector of Masulipatam v. Cavaly Venkata Narrainappa 8 M.I.A. 500 'private ownership not existing, the State must be owner as ultimate Lord.'
6. The District Judge then holds that as the title was originally in the Crown, the 8claimants must prove adverse possession for 60 years. Here the District Judge is clearly wrong. Though, the title was originally in the Crown, still as the possession of the claimants for 20 years, prior to the notification is found, it rests upon the Crown to prove that it has a subsisting title by showing that the possession of the claimants commenced or became adverse within the period of limitation, i.e., within 60 years before the notification. Secretary of State for India v. Vera Rayan 9 M. 175, Secretary of State for India v. Bavotti Haji 15 M.k 315; The Secretary of State for India v. Kota Bapanamma Guru 19 M.k 165. As the several islands were formed gradually and probably appeared and became capable of occupation at different times it may be that there is proof that some, if not all of them, came into existence as land capable of occupation within 60 years prior to the notification. In the case of such land the title of the Crown must be a subsisting title. In the case of lands which came into existence as land capable of occupation more than 60 years prior to the notification, the Crown must show by evidence that it had a subsisting title, at sometime within that period.
7. We must, therefore, ask the District Judge, to return a finding as to whether the Crown has a subsisting title to the whole or any portions of the claim land lying between Hope Island on the north and Neelarva on the south.
8. Further evidence on both sides on this question may be adduced before the District Judge as the true point in issue was not correctly understood by the parties at the trial. The finding should be returned within five months from date of the receipt of this order and ten days will be allowed for filing objections.
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10. In compliance with the above order, the District Judge submitted the following.
11. I am directed by the High Court to try the following issue: Whether the Crown has a subsisting title to the whole or any portions of the claim land lying between Hope Island on the north and Neelarva on the south.
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12. Having regard to the rule laid down by the High Court regulating the onus of proof in the present case, it is not necessary for me to pronounce my opinion as to whether the claimants have proved sixty years' adverse possession as against the Government.
13. I accordingly find that the Crown has no Subsisting title to the whole or any portion of the claim land lying between Hope Island on the north and Neelarva on the south.'
14. The Second Appeal came on for final hearing after the return of the above finding and the Court delivered the following judgment on 30th September 1909.