1. In this case, the plaintiff, as owner of Shrotriem village of Kilianur, asked for a declaration that a portion of the bed of the Kusasthalai River belonged to him and for an injunction restraining the defendants from interfering with his enjoyment thereof. The defendants Nos. 1 to 14 are the ryo's of the neighbouring village of Patraipur-rambadur; the 15th defendant is the Secretary of State for India.
2. The District Munsif dismissed the suit. On appeal the District Judge gave a decree for the plaintiff. The defendants appeal against the decree. We think the appeal must be allowed on the ground that the plaintiff is not the owner of the portion of the river bed claimed by him. In this Presidency, the beds of river are ordinarily vested in Government, as pointed out by Sundara Aiyar, J., in the recent case of Chockalingam Pillai v. Emperor (1912) 1 M.W.N. 119 : 11 M.L.T. 162. See also Section 2 of Act III of 1905 and Kundukuri Mahalakshmama Garu v. The Secretary of State for India 34 M.k 295.
3. It is, therefore, necessary for the plaintiff to show that the portion of the river-bed in dispute belongs to him. The plaintiff's title rests on the grant Exhibit F., made to his predecessor-in title in 1802 and on the Inam title-deed Exhibit H. issued in 1879.
4. The former recites the reason for the grant as follows:
The Settlement of a permanent land tax on the lands of Hon'ble Company's Jagir having rendered the continuance of the office of Nattawar unnecessary, the Governor in Council has abolished that office and the immunities attached thereto; the Governor in Council has at the same time been pleased favourably to consider the claims of the present incumbents in the office of Nattawar, whose interests are affected by the abolition of that office, and has been pleased to resolve that their Shrotriem lands shall be continued to them and their heire. It then goes on: 'In consequence of the foregoing resolution and of your having performed the duties of the Nattawar for a period of time, the Governor in Council confers on you the village of Kilianur and three other villages, on Shrotriem tenure subject to a certain quit rent and with a provision that it would revert to Government on alienation or on failure of legal heirs'. This was confirmed by the issue of the Inam title-deed (Exhibit H) in 1879 whereby the Inam Commissioner says: I acknowledge your title to a personal inam consisting of the right to the Government Revenue on land claimed to be 28.30 acres of dry and 304.93 acres of wet land situate in the Shrotriem village of Kilianur.' In the margin, the words 'beside poramboke' are written. It is to be observed that in neither of these documents are any boundaries specified nor is there any mention of the river or river-bed. The plaintiff's case, briefly stated, is, that the revenue village was granted to the villager, means everything which was at the time of the grant treated by Government as belonging to the village and that the Government measurement and survey accounts both before and after the grant show the portion of the river-bed, now in dispute, as belonging to the village. We do not think that this argument is sufficient to establish the plaintiff's title. The river is a broad one, the sandy bad of which, like that of most Indian rivers, is dry during the greater part of the year. It forms, as it were, a natural boundary between Kilianur on the west and other villages on the east. No doubt, in the Tarabadi or measurement account of 1777 (Exhibit J.), 24 3/8 cawnies out of the total area of the village are shown as taken up by the river. But the owner's account also shows the area in the village occupied by the village temple, the village site with its 25 houses, the village threshing floors and so forth.
5. In order to understand these accounts, it must be remembered that the whole country was then as now divided up for administrative convenience into areas called villages, the village was as it were the unit of administration and every part of the land belonged for administration purpose to some particular village. In the same way, every parcel of land, whether it was private property or communal property or lands at the disposal of Government or roads, rivers, tanks, etc., was shown in the village account kept for revenue and administrative purpose; when the more accurate and scientific survey was subsequently made, the revenue village was still retained as the unit and the parcels shown in the old village accounts were shown in the survey plans and registers with a statement of the exact areas as determined by the scientific measurements. In the case of rivers which form the boundaries between adjacent villages, the modern rule appears to be to show half the river in the map of each village (see Rule 64 of the Survey Manual of 1888), but in 1868 when Kilianur and the adjacent village were surveyed, the rule does not seem to have been followed. The places show that the whole of the river-bed is demarcated, off into portions of irregular shape and siz9 which are said to belong to the villages in whose village map they appear. Probably, the division was determined by the existence of channels or springs used for the irrigation of some of the villages but this is not clear though it does appear that several of the riparian villagers have tanks which are fed by channels from, the rivers.
6. Turning now to the grant to the plaintiff's predecessor, we find that it is expressly stated to be on Shrotriem tenure. A Shrotriem is stated in Wilson's Glossary to be: 'Lands or a village held at a profitable rate, properly on assignment of land revenue to a Brahman learned in the Vedas, but latterly applied generally to similar assignments to native servants of the Government, Civil or Military and both Hindus and Mahamadans as a reward for past services.' A Shrotriem grant gives no right over the lands, and the grantee cannot interfere with the occupants as long as they pay the established rents. The object of the grant was to make a provision for an official whose office was no longer necessary. What was regarded was the value of the lands producing an income. This appears very clearly from the terms of the Inam title-deed though, no doubt, in the margin the words 'beside poramboke' are added.
7. These words would indicate a right to poramboke land, such as unassessed waste, but it could not include all porambokes, since that word includes all kinds of communal property such as burning grounds, temple sites, threshing floors and also public roads (called road poramboke) and rivers called river poramboke. It could never be supposed that Government, in making a grant like Exhibit. F as a reward for service rendered, included in the grant the property of private persons or the communal property of the villagers such as temples, threshing floors, cattle stands, burning grounds, or the like or public roads, simply because they are included in the area of the village as shown in the village and survey accounts and are not in terms excepted from the grant. Nor do we think that there is any reason to hold that the Government intended to convey or did in fact convey to the grantee any rights in the bed of the river because for administrative and survey purposes a part of it was included in the village.
8. As observed in the case of Ambalavana Pandara Sannadhy v. Secretary of State for India 15 M.L.J. 251 the construction and control of works and sources of irrigation have from the earliest times been the special function and duty of the Government in India: Madras Railway Co. v. Zemindar of Carvet nagaram 14 B.L.R. 209 Ponnusawmi Tevar v. Collector of Madura 5 M.H.C.R. 6. It is unreasonable to suppose that in a grant such as is evidenced by Exhibit F Government, by describing the grant as the grant of the village in Exhibit F, or by using the words 'besides poramboke' in Exhibit H, intended by such several terms to assign away a portion of the river-bed and thus introduce a divided ownership and control over it and deprive themselves of the power of properly discharging their duties in connection with the irrigation on the river. There is no specific grant of the river-bed and we do not think that several terms used should be construed as involving such a grant.
9. We may add that the only acts of ownership alleged by the plaintiff in respect of the river-bed are, that some six or seven years ago he made pits in the sand and took water therefrom to water his young causarina trees. These are acts such as might be done by any ryot having land near the river and are not such as would be objected to by Government if done in a Government river nor are they such as to indicate ownership of the river-bed by the person doing them.
10. We must, therefore, reverse the decree of the District Judge and restore that of the District Munsif with costs in this and in the lower Appellate Court.
11. One set of costs only is allowed as no separate contention was urged on 15th defendant's behalf.