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Secy. of State Vs. Dist. Board of Tanjore - Court Judgment

LegalCrystal Citation
Subject Civil
CourtChennai
Decided On
Reported inAIR1930Mad679
AppellantSecy. of State
RespondentDist. Board of Tanjore
Cases ReferredLokanath Bidyadhar v. Jahania Bibi
Excerpt:
.....and by assertion of right on his own behalf. 2. as regards issuel in the case, namely, whether the fishery right in dispute was enjoyed by the plaintiff openly, peaceably and as of right for over 20 years, there is the concurrent finding of both the lower courts in the affirmative. it is not the plaintiff's case nor is it indicated by the evidence that what was enjoyed by the government is a mere right to fish in the locality in question which does not exclude the acquisition of similar rights by others or by the lawful owner of the land but, on the other hand, it is an exclusive right of fishery in that locality, in the sense that even the lawful owner of the land has been excluded from the enjoyment of such fishery right therein. in my opinion, the correct position of those to whom the..........entitled to the exclusive right of fishery within the aforesaid limits of the river by reason of adverse possession of such interest in immovable property for over 12 years, the suit is for declaration, injunction and damages. the defendant denies that the plaintiff enjoyed the fishery peaceably and openly and by assertion of right on his own behalf. it is alleged that the collector of tanjore, as agent of the board of revenue, managed the chhatram properties till 1872 and, then, as agent of the district board, tanjore from 1872 to 1920 when a non-official president was appointed, that during the time the collector managed either as the revenue board's agent or as the district board's agent, his subordinates in the revenue department were looking after the chhatram properties, that it.....
Judgment:

Sundaram Chetty, J.

1. The plaintiff-appellant is the Secretary of State for India in Council. The suit is against the District Board of Tanjore in whom the right of management of the properties belonging to the plaint-mentioned chhatram is vested. The dispute in this case is in respect of the right of fishing in the river Korayar which is a non-tidal and non-navigable river within the limits of the inam village of Turakkadu which belonged to the chhatram. The village on either side of Turakkadu belong to the plaintiff. It is alleged in the plaint that the exclusive right of fishing in aforesaid river within the limits of the said village has been in the enjoyment of the Government peaceably and openly from Faslis 1302 to 1329 inclusive as of right and without interruption. The title to the said right of fishing is claimed as an casement under Section 15, Easements Act, and if for any reason that Act is held to be inapplicable, the plaintiff states that he is entitled to the exclusive right of fishery within the aforesaid limits of the river by reason of adverse possession of such interest in immovable property for over 12 years, The suit is for declaration, injunction and damages. The defendant denies that the plaintiff enjoyed the fishery peaceably and openly and by assertion of right on his own behalf. It is alleged that the Collector of Tanjore, as agent of the Board of Revenue, managed the chhatram properties till 1872 and, then, as agent of the District Board, Tanjore from 1872 to 1920 when a non-official President was appointed, that during the time the Collector managed either as the Revenue Board's agent or as the District Board's agent, his subordinates in the Revenue Department were looking after the chhatram properties, that it was in this capacity that the leasing of the suit fishery must have been made and that, in such circumstances, there could not be any adverse possession of the fishery right.

2. As regards issuel in the case, namely, whether the fishery right in dispute was enjoyed by the plaintiff openly, peaceably and as of right for over 20 years, there is the concurrent finding of both the lower Courts in the affirmative. This finding has been arrived at after a due consideration of the documentary and oral evidence. The documents unmistakably show that all the leases of the fishery right were granted by the Government and the muchlikas taken in favour of His Majesty's Government. The notifications regarding auction sales were issued by the Tahsildars on behalf of the Government and the sales held by the Tahsildar were confirmed by Deputy Collectors. The rents collected in respect of the leases so granted have all been credited to the revenue of Government. There is ample proof that the Government has been exclusively enjoying the plaint-mentioned right of fishery from 1894 onwards till 1920 openly without interruption and as of right. This being a concurrent finding of fact by both the lower Courts is not open to question in this second appeal and I accept it as a proper finding.

3. There is no doubt that an exclusive right of fishery is an interest in immovable property. Such a right may be acquired by 12 years' adverse possession. It is not the plaintiff's case nor is it indicated by the evidence that what was enjoyed by the Government is a mere right to fish in the locality in question which does not exclude the acquisition of similar rights by others or by the lawful owner of the land but, on the other hand, it is an exclusive right of fishery in that locality, in the sense that even the lawful owner of the land has been excluded from the enjoyment of such fishery right therein. That being so, the right established by the plaintiff is not a mere profit a prendre, but is an interest in immovable property which can be acquired by 12 years' adverse possession as against the lawful owner. Such an interest is transferable and heritable: vide Hill & Co. v. Sheoraj Raj A.I.R. 1923 Pat. 58. But the controversy in this case is centered mainly on the question whether possession of the fishery right set up by the plaintiff can be really deemed to be adverse to the defendant or the chhatram. It is contended on the respondent's side in accordance with the view taken by the lower Courts that the Collector must be deemed to have filled a dual capacity as the ex-officio President of the District Board and also as the agent of the Government and that the possession and enjoyment of the fishery right) by the Government through the acts of the Collector who filled such dual capacity could not be constituted as adverse possession as against the District Board in which the management of the chhatram was vested. The lower appellate Court, in coming to its conclusion, has observed that this question does not seem to be one free from doubt. In my opinion, the correct position of those to whom the acts of enjoyment are attributed and the nature of the enjoyment should be clearly ascertained before the application of the legal principles. Till 1872 the Board of Revenue was exercising the powers of supervision and control over the chhatram endowments under the provisions of Regn. 7 of 1817. After the passing of the Local Boards Act 4 of 1871, the management of the chhatram properties became vested in the District Board.

4. Section 51, Clauses 1 and 2, Madras Local Boards Act 5 of 1884 are exactly similar in wording to Section 26, Clauses 1 and 2, Madras District Municipalities Act 4 of 1884. In dealing with Section 26 of the latter Act, it has been held in Chairman, Municipal Council, Rajahmundry v. Venkateswarlu [1908] 31 Mad. 111, that, prior to the transfer to the municipality, the Board of Revenue had only powers of supervision and control; but what was made over to the municipality under Section 26 was not only the superintendence of the choultry but also the actual management. These observations seem to be applicable to the present case also which is governed by Section 51, Madras Local Boards Act 5 of 1884. It is not correct to say that prior to 1872 the Revenue Board was in actual management of the chhatram properties beyond exercising the general powers of supervision and control. The contention of the respondent, that the Collector, as a subordinate of the Board of Revenue must be deemed to have been in possession and management of the chhatram properties prior to 1872, is unsustainable. After 1872 the actual management; did pass to the District Board. The District Board is a corporate body capable of owning property, having perpetual succession and a common seal of its own and is also capable of suing and being sued on its corporate name. As such a corporate body, it is district from its President or the individual members thereof: vide Section 27 of the Act. Under Section 33 (1), Madras Local Boards Act 5 of 1884, the resolutions of the Local Board shall be carried into effect by the President in whom the entire executive powers of the Board shall be vested and who shall be directly responsible for the due fulfillment of the purposes of this Act. The section exactly corresponding to this in the District Municipalities Act referred to above is Section 32 (1). It has, however, been held by this High Court that the relation of principal and agent does not exist between the Municipal Council and the Chairman: Srinivasa Ayyangar v. Municipal Council, Karur [1899] 22 Mad. 342.

5. The powers of the President of the District Board, being the same as the powers of the Chairman of a Municipality as set forth in the two sections above referred to, it must be taken on the authority of the decision in Srinivasa Ayyangar v. Municipal Council karur [1899] 22 Mad. 342, that the President of the District Board is not really the agent of the Board. Moreover, Clause 2, Section 33, Madras Local Boards Act, states that it shall not be lawful for the President to exercise any power which, by this Act, it is expressly declared, shall be exercised by the Local Board. Though the executive power is vested in the Collector as the ex-officio President of the Board, still the Board, in its corporate capacity is capable of taking any action in the management of its properties by means of resolutions passed at meetings and the President has to carry out such resolutions and act in conformity with them. It cannot be said that the District Board is incapable of suing in its own name and under its own initiative apart from the President. A suit may be laid by the District Board in its own name and any Secretary may sign the plaint on its behalf. It is not, therefore, correct to say that the Collector, as ex-officio President of the District Board, was the person in possession and management of the chhatram properties. As he is not strictly an agent of the District Board, it cannot be said that he held any fiduciary position with respect to the chhatram properties whose management vested in the District Board. There is no doubt that the enjoyment of the fishery right in question was by the Government through its subordinate officers, namely, the Collector, the Revenue Divisional Officer.the Tahsildar and so on. All the leases were granted distinctly by the Government and the rents went into the coffers of the Government. During the period of such enjoyment it was perfectly open to the District Board to set up its right on behalf of the chhatram and sue the Government for any remedy open to it by reason of the wrongful enjoyment by the Government. It seems to me that, prior to the decision of the Privy Council in Bala Surya Prasad Row v. Secy. of State A.I.R. 1917 P.C. 42, the Government was treating the bed of a river even within the limits of a zamindari or inam as its own property and exercising acts of ownership over it accordingly. In all probability, the right of fishery in question was enjoyed by Government on that basis. Such an enjoyment, though under a mistaken notion of right, would still be adverse to the real owner of the property. The District Board, in its corporate capacity, had no incapacity to sue during the period of adverse enjoyment and the mere fact that the Collector happened to be its ex-officio President does not affect the adverse nature of the Government's enjoyment. It is clear that the Government never purported to enjoy the fishery right on behalf of the chhatram or the District Board. In view of these facts, the mere circumstance that the Collector had two capacities combined in him does not, in my opinion, change the character of the Government's enjoyment, nor was there a suspense of the right of action which the District Board had. There was thus no impediment to the acquisition of a prescriptive right by adverse possession on the part of the Government.

6. The decision in Guru Das kundu v. Basanta Kumar Roy [1910] 11 C.L.J. 373 seems to my mind to be almost exactly in point. In that case, the question was whether the enjoyment of immovable property by the Government could be deemed to be adverse to the Court of Wards who were managing the plaintiffs' properties. It was contended that the possession of the Government from 1888 to 1894 must be deemed to be the possession of the Court of Wards, namely, the Board of Revenue. In negativing this contention, it is observed thus on p. 377:

But that is not enough to make the possession of the Government the possession of the plaintiffs by the Court of Wards. The distinction between the Collector in his official capacity and in the capacity of a manager under the Court of Wards was pointed out in the case of Chowdhree Sheoraj Singh v. Collector of Moradabad 2 N.W.P. 379. That was a suit to recover money deposited by the Collector as an officer of the Court of Wards in the Government Treasury. It was held that the Government was not liable as a trustee by reason of the money having been deposited in the Treasury by an officer of the Court of Wards, though that officer was, in fact, the Collector.

7. That principle well-nigh applies to the present case, in distinguishing the capacity of the Collector as President of the District Board and his ordinary official capacity as a Government servant. It cannot be seriously contended that, by reason of this dual capacity, the possession of the Government of the fishery right in question is either the possession of the District Board or is not adverse to it. Stress has been laid by the learned advocate for the respondent on the following passage at p. 377 of the said ruling:

In this case the wards ware represented by non-official managers and there was nothing to prevent a suit being 'instituted in their name against the Government, provided that the sanction of the Court of Wards was first obtained.

8. It seems to me that the real decision did not turn upon this fact, though it was stated as a ground for meeting the argument that the Court of Wards could not have sued the Government. Be this as it may, according to the provisions of the Local Boards Act, there is really nothing to prevent a suit being instituted by the District Board on behalf of the chhatram in respect of the fishery right against the Government, though the Collector happened to be the ex-officio President of the Board. In the appeal preferred against the decision in Guru Das v. Basanta Kumar [1910] 11 C.L.J. 373, two points were urged, the second of them being that the possession of the revenue authorities could not be availed of against the plaintiffs by reason of their being at the time minors under the guardianship of the Court of Wards. Their Lordships of the Privy Council, though they allowed the appeal, have, however, expressed no dissent from the view of the High Court on the question of adverse possession as would appear from the following passage on p. 875, namely:

In differing from the High Court upon the determination of the appeal, their Lordships do not wish to be taken as expressing any opinion adverse to the view on the second point.

9. In support of the plaintiff's contention reliance is placed upon the decision in William v. Pott [1871] 12 Eq. 149. In that case it has been held that:

the principal may acquire a possessory title to real estate by receiving the rents for 20 years through an agent, although that agent is the person really entitled to the estate.

10. The possession of the agent was held to be possession of the principal. Though the agent was enjoying the property by receipt of rents on behalf of his principal alone, without knowing that the property belonged to himself, such enjoyment was held to be adverse with the result that the ownership of the agent in the property was extinguished by reason of such adverse possession of the principal through him. If such possession could be deemed to be adverse, possession of the Government in the present case must a fortiori be deemed to be adverse to the defendant,

11. A number of decisions were quoted on behalf of the respondent, in which possession was not held to be adverse under special circumstances none of which exists in the present case. They relate to the case of co-owners in which possession would become adverse only after one co-owner sets up a hostile title to the knowledge of the others, to the case of a third party trespassing on the property while it was in the possession of a usufructuary mortgagee and continuing in possession for over the statutory period, where there was a doubt as to whether his possession according to animus was adverse to the mortgagee alone or to the mortgagor also and consequently the knowledge of the mortgagor as to such possession had to be shown, to a case of principal and agent and to the cases of alienations by the trustee or shebait of an idol Ittappan v. Manavikrama [1898] 21 Mad. 153, Harikanta Das v. Bibi Nurunnissa [1919] 53 I.C. 626, Periya Aiya Ambalam v. Shunmugasundaram [1915] 38 Mad. 903, Taru Bai v. Venkatrao [1903] 27 Bom. 43, Malkappa v. Mudicuppa [1913] 37 Bom. 84, Linga Munisami Reddi v. Govindaswami Naicken A.I.R. 1922 Mad. 369, S. Somayajipad v. kunhu Kutti Kovilamma : (1918)34MLJ344 and Rama Reddy v. Rangadasan A.I.R. 1926 Mad. 769. As none of those cases can be applied to the facts of the present case as stated above, I am of opinion that they have no bearing and, therefore, it is unnecessary to consider them in detail.

12. I am therefore, clear that the plaintiff has acquired by adverse possession for over the statutory period the right of fishery in question which is doubtless an interest in immovable property capable of being acquired by adverse possession. A suit for possession of such a fishery right is governed by Article 144, Lim. Act: vide Lokanath Bidyadhar v. Jahania Bibi [1911] 14 C.L.J. 572. The plaintiff, having acquired such an indefeasible title, is entitled to the declaration and injunction prayed for as also to the past damages claimed as to the correctness of which there is no dispute.

13. In the result, the decree of the lower appellate Court is reversed and a decree is passed in plaintiff's favour as prayed for with costs in all the Courts against the defendant.


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