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Secretary of State Vs. Sree Rajah Venkata Kumara Mahipathi Surya Rao Bahadur Garu, Maharajah of Pithapur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1938Mad470
AppellantSecretary of State
RespondentSree Rajah Venkata Kumara Mahipathi Surya Rao Bahadur Garu, Maharajah of Pithapur and ors.
Cases ReferredSecy. of State v. Rajah of Vizianagaram
Excerpt:
.....by plaintiff. no 5. 8. there is thus established the identification of the site of part of the suit lanka with the site of land which formerly belonged to the plaintiff and was washed away in 1849. that this kind of identification is all that is required to establish title by re-formation is clearly laid down in the leading case upon the subject,:lopez v. it may well be that it may have been so completely abandoned as to merge again, like, any other derilect land, into the public domain as part of the sea or river of the state, and so liable to the written law as to accretion and annexation. ' now, it is true that the lapse of time here amounts to nearly 70 years, and none of the reported cases had to deal with anything like so long an interval; in normal cases, the presumption must..........to government has since grown into this lanka, it was common ground at the arguments that the suit lanka first made its appearance in approximately the same shape and area as were observed during the pendency of the suit, in the year 1917-18.4. the first point to be decided is whether the suit lanka is an island or vertical accretion, or whether as held by the learned subordinate judge, it is to be regarded as a lateral accretion. it is admitted that there is no positive evidence that the lanka was first observed as an island, and later as attached to the land on the bank; but it is argued for government that the present condition of the suit lanka proves that it could have been formed in no other way. there admittedly exists a depression in the level of the suit lanka running close.....
Judgment:

King, J.

1. These appeals arise out of a suit brought in 1925 by the Maharajah of Pithapuram with the Secretary of State as the principal defendant, for a declaration of his title to a lanka measuring about 140 acres, in the river Vainatiam, a branch of the Godavari. This lanka adjoins the right or western bank of the river, and extends from the Gannavaram aqueduct in the north to the Government village of Mondepulanka in the south. To the west of the river throughout this length lies the zamindary village of Lankala Gannavaram belonging to the plaintiff along with the bank being lands bearing Section Nos. 5 (Uta Badawa Lanka), 2 (Gaddavani Lanka Thoorpulanka Polemere dori Tuni) and 1 (Jonnalanka). Plaintiff laid claim to this lanka on two grounds (i) because the Vainetyam at this point was neither tidal nor navigable, and he therefore was the owner of its bed, and (ii) because part of it was a re-formation of part of an old lanka of his called Turpulanka which had existed at this site and had been washed away by floods in 1849 and the rest was an accretion to this re-formed land; Government, on the other hand, denied plaintiff's right to the bed of the river, denied any reformation of any lanka belonging to plaintiff and claimed that the lanka in suit was not an accretion to any part of the village of Lanka Gannavaram, but was an independent formation first appearing in the river as an island. Even if, in the alternative, the lanka be found to be a lateral accretion and not an island it was contended that it was an accretion not to plaintiff's land but to a strip of land along the river bank acquired by Government under the provisions of the Land Acquisition Act in, 1898.

2. The learned Subordinate Judge of Amalapuram found, (i) that the river at this point was both tidal and navigable, so that plaintiff could lay no claim to the ownership of its bed, (ii) that, the lanka was not an island but a lateral accretion to the land on the river bank, (iii) that though it was probable that some part of the lanka was a re-formation of land once belonging to plaintiff, plaintiff had not been able to adduce sufficient proof of identity of site, and that, even if he had afforded such proof, he must be deemed to have abandoned his claim to the submerged land and therefore could not rely upon any such identification as affording him any title; and (iv) that the strip of land acquired by Government in 1898 did not extend throughout the whole length of the bank now in question, but only as far south as the junction between S. No. 5 and S. No. 2.

3. On these findings, the learned Judge held that the title to the northern portion of this lanka lay with Government as being an accretion to the land acquired by Government and to the southern portion with the plaintiff as an accretion to his land in Lankala Gannavaram. With this decision neither party was satisfied, and each has preferred an appeal (475 by Government and 584 by plaintiffs), claiming title to the whole subject-matter of the suit. It may be stated at the outset that the plaintiff no longer contests the first of the learned Subordinate Judge's findings that the river is both tidal and navigable; and in spite of a reference in the written statement to 1859 as the date of the first emergence of the island which according to Government has since grown into this lanka, it was common ground at the arguments that the suit lanka first made its appearance in approximately the same shape and area as were observed during the pendency of the suit, in the year 1917-18.

4. The first point to be decided is whether the suit lanka is an island or vertical accretion, or whether as held by the learned Subordinate Judge, it is to be regarded as a lateral accretion. It is admitted that there is no positive evidence that the lanka was first observed as an island, and later as attached to the land on the bank; but it is argued for Government that the present condition of the suit lanka proves that it could have been formed in no other way. There admittedly exists a depression in the level of the suit lanka running close to and parallel with the river bank. This is called by Government's witnesses a 'paya' or arm of the river, and they say generally that it used to be much deeper than it is now. D.W. 3, Mr. Stephens, who at the time of his giving evidence, was Executive Engineer, Godavari Central Division, refers to some old plans as proving the existence of such an arm of the river in 1860 and 1875. Now there is no doubt that the plans in question do suggest that in both those years the river was flowing in two streams with a sand shoal between them, but there is this striking difference between the two plans, that whereas the narrower stream in 1860 was near the western bank, the narrower stream in 1875 was on the other side. We are unable therefore to accept these plans as proving that there is any continuity in the course of the streams from year to year; and, we find from another plan, Ex. CCC, which shows the state of the river in 1903-04, that there is no stream at all but only an extensive formation of sand along the western bank at this point. As the learned Subordinate Judge points out in para. 46 of his judgment; it is impossible to call the suit lanka an island as it exists now. The levels of the depression as shown in Ex. VII, a plan prepared in December 1923, are on an average but very slightly below the levels of the higher portions of the lanka. We think that as the lanka presents every appearance now of being a lateral accretion and not an island, the onus is upon Government to show that it once was an island. No positive evidence of this fact exists, and a study of previous plans of the river cannot possibly establish the continued existence of any stream along the western bank which has now shrunk into the present depression. It is obvious that the course of the deep channels in the river must be subject to frequent changes. We are of opinion accordingly that there were no sufficient reasons for dissenting from the view of the learned Subordinate Judge that the suit lanka is a lateral and not a vertical accretion.

5. The next question is regarding the exact length of the strip of land acquired by Government in 1898. The oral evidence here is clearly in favour of the lower Court's finding. Mr. Stephens examined for the Government was shown a plan Ex. vi-b, prepared by the P.W.D. in 1898, and stated specifically' that land was acquired as far as a point which he marked thereon as 'D'. This corresponds with the point which marks the junction between Section fields Nos. 2 and 5. Government however relies upon Ex. Vi-b as showing a 'boundary line to the west of P.W.D. land' which proceeds all the way from the aqueduct to the Government village of Mondepiulanka at a place called Jonnelanka. Whafe Mr. Stephens says about this is not that it shows that any land was acquired south, of his point 'D', but 'I think that Ex. vi-b, showed the P.W.D. boundary line with a view to fix once for all the boundary between lanka high level margin and the river bed. Government further seeks to rely upon a note found in Ex. 15 to the effect that from a point corresponding to Mr. Stephen's 'D' down to Jonnelanka there is no land to the east of the line being, enjoyed by the zamindar or his lessees, and it is suggested that that unoccupied lantt' was nevertheless 'acquired' by Governments but acquired without the need of paying; compensation for it.

6. It is noteworthy, however, that Ex. 15' is a sketch prepared by the P.W.D. of 'land to 'be taken up,' and shows that land) as stopping definitely short at Mr. Stephen's point the note in question evidently explaining why it goes no further south. Finally Government relies upon the southern boundary given in the notification (Ex vi-c). This is given as 'Jonnalanka', and it is argued that the name' must be a clerical error for 'Jonnalanka' This, however, is a mere speculation upon which no question was asked of or information given by any of the witnesses. And) it manifestly conflicts with other indications in Ex. vi-c. The land to be acquired is described as a portion of Untabadavalanka, which is the name appropriate only to Section No. 5, and not to Section No. 2, and the extent is given as 3.71 acres. Ex. vi (m) (as well as Ex. 15) show beyond any doubt that the land which was thus measured5 had a length of 1797 links and could not have extended any further south than Mr. Stephen's point. We think therefore that the learned Subordinate Judge was-right in his finding that the strip of land acquired by Government stopped at the point which marks the junction between Section No. 5 and Section No. 2; and that upon his findings as so far upheld the decree dividing the lanka between Government and plaintiff was the correct decree.

7. It then remains to 'discuss plaintiff's case with regard to the re-formation of part of his old Turpulanka. We have already said that the learned Subordinate Judge refuses to find that plaintiff has sufficiently identified the site of the land which he lost in 1849, although the loss itself he holds to be proved beyond doubt. The main reason for this former finding appears to be an etymological one. Plaintiff's case is that the lost land lay east of Utabadavalanka which is now Section No. 5. The learned Judge points out that 'badava' in Telugu means 'swamp' or 'marshy land' and argues that as such land must naturally be by the water's edge it would be impossible for any land to exist to the east of it, so that the land lost by the plaintiff in 1849 could not have been where he now claims it to have been. There is however no evidence as to when this name was first given. It is clear that at the present time the land called Uttabadavalanka (S. No. 5) has got land to the east of it (i.e., part of the suit lanka) and it is equally possible that in 1849 also the same physical conditions may have existed, and the original meaning of the name may have no longer applied to those conditions. If therefore positive evidence exists by which the location of the lost land may be discovered, it ought not, we think, to be rejected merely because the name Utabadavalanka seems at first sight an inappropriate one. Now, that positive evidence is, in our view, clearly afforded by certain 'amarakam' accounts of Gannavaram village produced by plaintiff. The learned Advocate-General who appeared for the plaintiff has carefully compared and analysed two of these accounts, Ex. D, relating to Fasli 1258 (1848-9, the Fasli immediately preceding the flood) and Ex. E relating to Fasli 1260. They show the extents and the lease-amounts realized in respect of five plots of land which must have been then existed along the western bank of the river. In Ex. D the total extent of these 5 plots is 87.3 acres, in Ex. E, 55.9 acres, and it is possible to discover the extent of the diminution in area in each of these plots. In one of the plots, described on p. 83 of the printed papers as being 'near Polimera' there is no loss. This plot, it was not seriously disputed, must correspond to the present Section No. 2. Another plot, given immediately after Vootabaduva, both on p. 70 and on p. 84, is agreed to have lain north of the aqueduct and was diminished by 8 acres. It seems v reasonably, certain that the remaining 3 plots which together suffered a loss of 23.6 acres must have been situate east of what is now called UtabadavaLanka is now S. No 5.

8. There is thus established the identification of the site of part of the suit lanka with the site of land which formerly belonged to the plaintiff and was washed away in 1849. That this kind of identification is all that is required to establish title by re-formation is clearly laid down in the leading case upon the subject,: Lopez v. Muddan Mohan Thakur (1869-70) 13 M.I.A. 467 by the Privy Council. The fact that between the submergence and the reformation the land was 'wholly lost and absorbed and no part of its surface remained capable of identification,' in no way militates against the title based upon the re-formation. The same case and succeeding cases also show that where there are two competing claims to land, one based upon re-formation, the other upon lateral1 accretion, the former must prevail. The learned Subordinate Judge however lays-great stress upon a reservation found in Lopez v. Muddan Mohan Thakur (1869-70) 13 M.I.A. 467 Their Lordships while affirming the title based upon reformation in the case before them, observe as follows:

Their Lordships however desire it to be Understood that they do not hold that property absorbed;' by a sea or a river is, Under all circumstances, and after any lapse of time, to be recovered by the-old owner. It may well be that it may have been so completely abandoned as to merge again, like, any other derilect land, into the public domain as part of the sea or river of the State, and so liable to the written law as to accretion and annexation.

9. The learned Subordinate Judge after quoting this passage, goes on to observe (in para 61 of his judgment) that although the written statement (and indeed the evidence) furnishes no suggestion of any act of abandonment on plaintiff's part, the long lapse of time is enough to 'raise a presumption of abandonment.' Now, it is true that the lapse of time here amounts to nearly 70 years, and none of the reported cases had to deal with anything like so long an interval; but, after all, seventy, years is within the span of a single lifetime. In normal cases, the presumption must clearly be the other way as in the nature of things the owner of submerged land can exercise no acts of ownership over it during the period of its submersion. In the present case, when we are dealing with a river whose fluctuations in course and tendency to throw up and wash away lankas is notorious, we think that the mere extension of the period of submersion to nearly seventy years is not enough to support a finding that the plaintiff must be deemed to have abandoned his right to the land. The plaintiff's title has therefore been established to the 23.6 acres of the suit lanka to which we have referred and to such further slighter and later losses suffered by the same three plots or to 25 acres in all.

10. The question then arises whether plain-' tiff can also be held entitled to the remaining portion of the suit lanka which lies east of Section No. 5 and has been decreed to Government by the learned Subordinate Judge. We did not find that any of the reported cases deal with a situation similar to this, but there is a reference to such a contingency in Nogender Chunder Ghose v. Mohomed Esof (1873) 10 Beng L.R. 406 at page 433, where their Lordships of the Privy Council say:

They also consider that a title founded on the original ownership and identification of site is to be confined prima facie to the re-formation on that site.

11. On the evidence in this case, which contains no account of any stages in the formation of the suit lanka, we are unable to hold that the portion of the suit lanka east of the 25 acres has been shown to be an accretion to those 25 acres, to which alone in the northern portion of the suit lanka we hold that plaintiff's right must be restricted. In regard to the southern portion of the suit lanka, decreed to plaintiff by the learned Subordinate Judge, one argument advanced by the learned Government Pleader remains to be briefly mentioned. It is this, that the suit lanka is not an accretion at all, as its formation has not been proved to have been gradual. This point we may notice was never taken in the pleadings in the Court below, nor did it form the subject-matter of any issue, and we think that the formation of this lanka comes within the rule laid down by the Privy Council in Secy. of State v. Rajah of Vizianagaram (1922) 9 A.I.R. P.C. 105 (another Godavari case), that:

The recognition of title by alluvial accretion is largely governed by the fact that the accretion is due to, the normal action, of .physical forces, and that the word 'gradual' with its qualifications only defines a test relative to the conditions1 to which it is applied.

12. In the result the appeal by Government (A.S. No. 475) must be dismissed with costs. The appeal by plaintiff (A.S. No. 584) is allowed to the extent that his title will be declared to 25 acres of the suit lanka lying east of Section No. 5 to the east of the land acquired by the Government in 1898. A commissioner will be appointed to demarcate these 25 acres in a rectangular plot. For the rest the plaintiff's appeal is dismissed.


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