1. This is an appeal by the plaintiff in which though the pecuniary interests directly involved are small, some interesting questions arise for decision. There is a pwitha or public pathway (marked 8. No. 260) in Surya Rewpetta, a part of the plaintiff's zemindari. The defendant is the Municipal Council of Cocanada, in whom this puntha is now vested up to 1919 it would appear to have vested in the Taluq Board of Cocanada by whom it was transferred to the defendant Municipality, in 1919 or 1920. The point for decision is, what are the rights of the plaintiff and the defendant in respect of the Palmyra trees growing on this bit of land. Neither the plaint nor the written statement suggests that these trees were planted by the plaintiff of the defendant or the Taluq Board, P.W. No. 3 says 'I do not know who planted them.' Presumably they were spontaneous growths and I deal with the matter on this assumption.
2. One contention on behalf of the plaintiff and one on behalf of the defendant may easily be put aside. The plaintiff claimed that the written statement admitted his original title to the land. I agree with the Courts below that this is not a reasonable construction of the allegation in the written statement. On behalf of the defendant, undue stress has been laid on the description of the land as Poramboke in the record of rights and the Settlement Register. Being a public pathway it was rightly classed as 'Poramboke' but; this description or classification throws little light on the question of title and much loss on the right to the trees.
3. The written statement alleged that this piece of land had been acquired by the Government long ago for public purposes and the Taluq Board had been exercising ownership therein. No attempt has been made to prove any such acquisition. The case must, therefore, be dealt with on the footing that the Taluq Board and the defendant Council have only such rights as vest in them under the statute, by reason of the land being used as a public way.
4. The two issues framed in tae case are by no means calculated to bring out the real points in controversy. The first issue was, whether the plaintiff has subsisting title to the suit land. This language suggests that the question was raised in terms of Article 142 of the Limitation Act. But as the question of limitation is raised by the second issue the first issue must be taken to relate to the loss of the plaintiff's rights, if any, by some other means. But the judgments of both the Courts have mainly discussed the question, whether the plaintiff at any time had a right to the land or the trees.
5. The second issue was whether the plaintiff had been in possession for 12 years before suit. The word 'for' must apparently be a mistake for 'within' and that is how both the lower Courts have discussed it. The suit is not one for possession on the footing of dispossession but one for declaration and damages. In such a case it is difficult to see the justification for an issue in terms of Article 142. Assuming, as a limitation issue ex hypothesi must, that the plaintiff had title at some anterior time, it would be for the defendant to establish its extinction, except when the suit falls under Article 142. Further, I do not think that in view of the pleadings, it was open to the Courts below to find that the plaintiff has not had enjoyment of the trees in question, within 12 years of suit. The allegations in the written statement, refer to the enjoyment of the land and issue 1 specifically refers to the land and when Issue No. 2 follows, without specific reference to the trees as distinguished from the land, it is not clear whether the enjoyment of the trees by the plaintiff within 12 years was meant to be put in issue. The plaint specifically alleges in para. 4 that for Fasli 1331 the trees were leased by the plaintiff to Veerasami and then it proceeds. 'The plaintiff understands that the defendant has been leasing out the trees for the subsequent Faslies contrary to plaintiff's right.' In para. 8, it is stated that the cause of action arose on July 10, 1922, when the leaves were first cut by a lessee of the Municipality. In answer to these definite allegations, there is not a word in the written statement suggesting that the defendant Municipality or the Taluq Board before it, ever leased or otherwise enjoyed the trees prior to Fasli 1331. The District Munsif refers to an admission by P.W. No. 2 that the lessee Veerasami could not enjoy the trees as defendant obstructed. But that would not amount to 'dispossession' and much less to any proof that the Municipality has been leasing these trees prior to the date admitted in the plaint.
6. The discussion of this question of limitation in paras. 4 and 5 of the appellate judgment is not very illuminating. I am not concerned to decide whether the plaintiff's allegations of enjoyment of these trees prior to 1918 is true or not. But the learned Subordinate Judge has not stated clearly what his opinion is as to the events that are said to have happened in 1918. His remark in para. 6 that because plaintiff asserted in the plaint a specific kind of user for a long period of time, it was not open to him to rely upon the principle that possession must in such cases be held to follow the title is too broadly stated (see Ramanathan Chettiar v. Lakshmanan Chettiar 51 M. 622 : 133 Ind. Cas. 9 : 33 L.W. 747 : 61 M.L.J. 224; Ind. Rul. (1931) Mad. 697; A.I.R. 1931 Mad. 644. It must be remembered in this case that the lard is admittedly used as a public pathway and there is accordingly no possibility of its being used by the plaintiff as ordinary private land. The plaintiff claims only such interest in the land as a private owner could have in land which is subject to a public right of way and the user of it by the public as a way cannot be any interference with his rights. If as owner of the soil, he is in law entitled to the trees, least that should be shown by those who plead the extinction of his right thereto by lapse of time is that somebody else has been enjoying them for the statutory period. His mere non-enjoyment will not, in a case of this kind, account to 'dispossession' or 'discontinuance' of possession. The sub-soil rights themselves require another kind of interference, before any question of limitation can arise in respect thereof.
7. The question of the nature and extent of the plaintiff's right as zamindar, in land within zemindari, when there is admittedly a public pathway over such land, may first be considered, without reference to the statutory provisions vesting such roads and pathways in Local Boards or Municipalities. In the absence of definite evidence as to the time when the site came to be used as a puntha, the question has to be dealt with on alternative hypothesis. If it became a puntha only after the Permanent Settlement, it is difficult to see why the plaintiff should not be held entitled to the land subject to the rights of the public. It is little to the point to say that this would depend upon the terms of dedication. Nobody suggests an express dedication and it will be strange indeed if there should have been one for a village pathway. As observed by Mukherjee, J. in Chairman of the Howrah Municipality v. Khetra Krishna Mitter 33 C. 1290, what is likely to have happened is that the public of the neighbourhood was merely allowed to use the land as a pathway and the only inference which may legitimately be drawn from such user is that the dedication was of just what was required for a public pathway.
8. Assuming, however, that the land was used as a public pathway even prior to the Permanent Settlement and this is the assumption most favourable to the defendant the question is whether the Courts below are right in their conclusion that the plaintiff has no title to maintain this suit. In dealing with this question, they have failed to take note of the distinction between the pathway as such and the ownership of the land. They have also lost sight of the basis on which the ownership of the soil under a highway rests.
9. The decisions referred to in the judgment under appeal, viz., Narayanaswami Naidu v. Secretary of State for India 24 M.L.J. 36 : 14 Ind. Cas. 261; (1912) M.W.N. 496, Venkatarama Sivan v. Secretary of State for India : (1919)36MLJ203 and Raja of Pithapuram v. Secretary of State for India 47 M.L.J. 784 : 85 Ind. Cas. 345; (1925) M.W.N. 271; A.I.R. 1925 Mad. 415., relate to the claim of a zemindar or inamdar to ownership of what is actually used by the public, not of the soil subject to the rights of the public. For instance in Raja of Pithapuram v. Secretary of State for India 47 M.L.J. 784 : 85 Ind. Cas. 345; (1925) M.W.N. 271; A.I.R. 1925 Mad. 415., the plaintiff claimed that the puntha, land had become his private property in the sense that he could get it cultivated, that is in negation of the rights of the public to use it as a way. The observation that the Government is the cuntodian of that rights of the public and that, therefore, cannot be presumed to have parted with them at the Permanent Settlement must be understood in relation to the rights of the public, who have nothing to do with the soil. Similarly in Venkatarama Sivan v. Secretary of State for India : (1919)36MLJ203 , the question related, to land used as a cremation ground in an inam village and the learned Judges applied the theory that it would be presuming a violation of trust, to hold that Government would have assigned to the inamdar land which Government were bound to preserve for the communal use of the village. As indicated already, there is no question of public use or trust for public use, so far as rights in the soil of a highway are concerned when there is no denial of the rights of public. The decision in Narayanaswami Naidu v. Secretary of State for India 24 M.L.J. 36 : 14 Ind. Cas. 261; (1912) M.W.N. 496, is of doubtful authority at the present day, (see per Sadasiva Iyer, J. in Venkatarama Sivan v. Secretary of State for India : (1919)36MLJ203 . Whatever the position may be in respect of rivers bounding or flowing through an inam village, it will be too late at the present day to maintain that even in respect of rivers bounding or flowing through a zemindari the bed continues to be vested in the Government. The principle that the proprietor of the adjoining land is also owner of the bed of the river ad medium filume had been recognised in several Indian decisions of which it is sufficient to mention Venkatalakshmi Narasimhay. The Secretary of State for India : (1918)35MLJ159 , Secretary of State for India v. Maharaja of Bobilli 30 M.L.J. 163 : 32 Ind. Cas. 279 : 19 M.L.T. 6 : 3 L.W. 119; (1915) M.W.N. 1025, Sannidhiraju Subbarayudu v. Secretary of State for India : (1927)53MLJ868 , and the Secretary of State for India v. Maharajah of Burdwan 49 C. 103 : 67 Ind. Cas. 835 : 35 Cri.L.J. 92 : 1922 42 M.L.J. 61 : 4 U.P.L.R. (P.C.) 1 : 26 C.W.N. 619; A.I.R. 1922 P.C. 6 : 48 I.A. 565 See also the Secretary of State for India v. Sannidhiraju : (1932)34BOMLR500 . In Secretary of State for India v. Sannidhiraju the Judicial Committee re-affirm, what has been said in Orr Ewing v. Colquhoivn (1877) 2 A.C. 839 and Galbraith v. Armour 4 Bell's App. 374 that a public right of way over land stands on the same footing as a public right of navigation over a river and that in respect of a river as well as of a highway, the bed or soil is presumed to belong to the proprietors of adjacent land.
10. The question, therefore, is not whether the puntha or even the land underneath it is likely to have been granted to the zemindar at the time of the Permanent Settlement, but whether by reason of his ownership of the adjacent lands, the zemindar does not in law become the owner of the soil underneath the highway. The reason of this rule was sought to be canvassed in City of London Land Tax Commissioners v. Central London Railway (1913) A.C. 364 but the House of Lords intimated that whatever, its history or reason may be the rule was too well established to be so canvassed or limited with reference to the reason underlying it. Lord Atkinson observed that the presumption is applicable even to cases where no grant or conveyance has to be constructed and unless and until rebutted the rule must prevail Lord Shaw put rivers and highways on the same footing for this purpose (See p. 379.) In Chairman of the Naihati Municipality v. Krishnaheri Lal Goswami 13 C. 171 the Calcutta High Court applied this principle as between a zemindar and a Municipality.
11. With reference, to the ownership of trees on a highway, it is instructive to note the observations of Lord Atkinson in the City of London Land Tax Commissioners v. Central London Railway (13). Speaking of the rights of the owner of the soil, he quotes Lord Mansfield as citing with approval a passage from Kolle's Abridgment to the effect that 'the freehold and all profits belong to the owner of the soil; so do all the trees upon it and mines under it. There can thus be no doubt that whether the puntha was in existence prior to the Permanent Settlement or came into existence after the Permanent Settlement, the zemindar as owner of the adjoining land, will also be the owner of the soil of the puntha and of trees, growing upon it, subject to the right of the public to use it as a highway.
12. Does it then make any difference, that under the provisions of the Local Boards Act or the Municipalities Act the pathway or the highway has come to be vested in Local Board or Municipality? The effect of such vesting has been fully discussed in Sundaram Aiyar v. The Municipal Council of Madura and the Secretary of State for India 25 M. 635 and the result of the has been stated as follows:
What is vested in urban authorities is not the land other which the street is formed but the street qua street and the property in the street thus vested in a Municipal Council is not general property or a species of property known to the Common Law bat a special property created by statute and vested in a corporate body for public purposes'. Pages No. 645 and 653,)
13. It is clear according to the authorities that this vesting cannot affect the rights of the adjacent owner in the soil of the highway.
14. As regards trees on the highway, the rights of parties may differ according as they have been planted by the local authority or not. Whether ordinarily the local authority will have a right to plant trees on a highway or not, there can be no doubt that under the Local Boards Act it is authorised to plant trees. (See Section 95 of the Local Boards Act 1884, and Section 112 of the Act of 1920;. And it may be a legitimate inference, that trees so planted belong to the local authority. It may also be that the owner of the soil may not be entitled to plant trees on the highway so as to obstruct the user thereof by the public or even without the previous permission of the Local Board if the statute so provides vide Section 163(a) inserted in the Local Boards Act by XI of 1930. But where trees spontaneously grow on the highway the balance of authority is in favour of the view that they belong to the owner of the soil and not to the local authority. This is the view stated in Mackenzie on Highways at p. 54 on the authority of the opinion of James V.C. in Turner v. Ringwood Highway Board (1861) 9 Eq. 418. The other case referred to at the footnote on page 54 in Mackenzie's book, viz., Nicol v. Beaumont (1883) 53 L.J. Ch. 853 : 50 L.T. 112 throws no light on this question. Coverdalev. Charlton (1879) 4 Q.B.D. 104 : 48 L.J.Q. B 128 : 40 L.T. 88 : 27 W.R. 257 related only to grass growing on the highway and as observed in Sundaram Aiyar v. The Municipal Council of Madura and The Secretary of State for India (15) its authority as to the nature and extent of the vesting in the local authority has been considerably shaken by later pronouncements. In Stillwell v. New Windsor Corporation Clauson, J. discussed Coverdale v. Charlton (18), and the learned Judge was of opinion that the trees on a highway should be treated as the highway authorities trees 'for all the purposes of exercising the rights of the highway authoritys', i.e. the extent to which it is necessary to keep the highway fit for the use of the public. In that case the claimant complained of the action of the local authority in removing or threatening to remove trees which were found to be in the highway. Dealing with case on the footing that the trees might either have been planted by the highway authority, or by the owner of the soil with the permission of the highway authority the learned Judge held that if the highway authorities were satisfied that the trees caused an obstruction to the use of the highway they would not only have the right but would be under a duty to remove the obstruction. He refers to the fact that even in Coverdale v. Charlton (18) Bramwell, L.J. doubted whether the effect of Section 149 of the English Public Health Act, 1875 was to vest the property in the trees in the highway authority. Being of opinion that the authority was entitled to remove the trees on the ground of obstruction, he left alone the question as to the property in the timber, when the trees have been felled.
15. In the Madras Local Boards Act, a provision has been inserted by the Amending Act of 1930, prohibiting any person from felling, removing or otherwise damaging any tree vesting in or belonging to a Local Board and growing on any such public road (See Sub-clause (2) of Section 163 A). There was no similar provision in the previous. Acts, and it is perhaps too much to draw inferences from the language employed in this provision. But I may note for what is worth, that according to this provision, two conditions must be satisfied, viz., not merely that the tree grows on a public road vested in or belonging to a Local Board but that the tree itself should vest in or belong to the Local Board. There is nothing in the Local Boards Act to suggest that the beneficial enjoyment of trees spontaneously growing on the sides of a highway was intended to belong to the Local authority or to exclude the general principle that they belong to the owner of the adjacent land.
16. For these reasons, I should have upheld the plaintiff's claim to the trees in question, but for one circumstance appearing in the evidence of D.W. No. 1, viz., that the defendant Municipality is said to have acquired the lands adjoining the suit puntha. The bearing of this circumstance has not been adverted to by either of the Courts below nor has any reference been made to it in the written statement. But as the defendant is a public body and as the fact has been spoken to by D.W. No. 1, I do not wish to deprive the defendant of the right which on the very principle of the decision in City of London Land Tax Commissioners v. Central London Railway (13) it would have acquired by reason of the acquisition of the adjoining properties. Before coming to a definite conclusion on this point, it seems to me better to call for a finding from the lower Appellate Court on the question, whether and to what extent, the defendant Municipality has become the owner of lands adjoining the suit puntha. Both parties will beat liberty to adduce any fresh evidence relevant to this question. Finding to be submitted by April 15. Ten days for objections.
17. In pursuance of the directions contained in the above judgment the Additional Subordinate Judge of Oocanada submitted the following
18. Finding:--In S.A. No. 337 of 1931, filed against the decree of the Subordinate Judge of Oocanada in A.S. No. 107 of 1927, the High Court was pleased to call for a finding on the following question
Whether and to what extent the defendant Municipality has become the owner of lands adjoining the suit puntha.
19. Upon receipt of the High Court's order, the case was posted to this date for further evidence, if any and notice was accordingly given to both parties. No evidence was let in today, but the appellant's Vakil filed a memo, the lands adjoining the suit puntha (S. Nos. 258, 259, 261 and 262) belong to the Municipality, having been the Land Acquisition Act herewith submitted. I, therefore, find that the defendant Municipality is the owner of the lands adjoining the suit puntha.
20. This Second Appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following
21. Judgment:--In view of the report by the lower Court that the adjacent lands admittedly belong to the Municipality, the Second Appeal fails and must be dismissed with costs.