Ramachandra Iyer, J.
1. These are applications under Article 226 of the Constitution for the issue of a writ mandamus and certiorari respectively to direct the respondent to forbear from interfering with the petitioner's right, possession and enjoyment of the Melakulam and Appasamudram tanks within the limits of what was once Idayakottai zamin in Palani taluk in Madurai district, and to call for the records and quash the order of the Estates Abolition Tribunal, Madurai, in R.A. No. 19-1953, dated 14th July, 1953, which affirmed the order of the Settlement Officer, Madurai, dated 29th September, 1952, made in Case Nos. 9 to 14 PLN 51, holding that a ryotwari patta in respect of the tanks referred to above could not be granted to the petitioner. In view of the general importance of the questions raised, these petitions have been posted before a Full Bench.
2. The petitioner was the zamindar of Idayakottai which is situated in Palani taluk in Madurai district. The zamin was notified as a zamindari estate and taken over by the Government on 3rd September, 1951, under the provisions of the Madras Estates (Abolitition and Conversion into. Ryotwari) Act (XXVI of 1948), which shall hereinafter be referred to as the Abolition Act or the Act In due course the petitioner filed an application before the Settlement Officer, Madurai, under Section 12(a) of the Act for the grant of a ryotwari patta with respect to several items of lands which he claimed as his private or pannai lands. Amongst the several items claimed were two tanks in the village known as Melakulam and Appasamudram. As the village has not yet been surveyed the tanks could be identified only by their Paimash numbers. Melakulam is covered by P. Nos. 330 and 331, while Appasamudram is covered by P. Nos. 489 and 490. In the village accounts they are mentioned and classified as water spread and tank bund area. The Settlement Officer granted a patta in respect of a number of items but rejected the; claim of the petitioner in regard to the two tanks. ;
3. The petitioner filed an appeal against the order of the Settlement Officer under Section 15(2) of the Abolition Act, to the Estates Abolition Tribunal, Madurai. The Tribunal found that the two tanks came into existence long prior to Act I of 1908 on what-was once the zamindar's pannai lands, but that they ceased to be the private lands on their being converted as tanks and that therefore the petitioner would not be entitled to the issue of ryotwari pattas in respect of them. The petitioner has thereupon moved this Court under Article 226 of the Constitution for the reliefs aforesaid.
4. In Srinivasa Rao v. State of Madras : (1956)2MLJ595 a Bench of this Court held that where a tank was an accessory to or part and parcel of the private lands of a landholder, he would be entitled to the grant of a ryotwari patta for the tank under Section 12(a) of the Act. The correctness of that decision has been challenged before us by the learned Advocate-General oh behalf of the Government.
5. It is contended on behalf of the petitioner that where a landholder constructed on what were his private lands a reservoir for storing water for irrigating exclusively his private lands whether the reservoir, was a well or a tank the lands so utilised for the reservoir would continue to be the private lands either as an ancillary to the remaining private lands or as part and parcel thereof. It was, therefore, urged that the landholder would be entitled to the grant of a patta in regard to the tanks as they formed really part of the other private lands in respect of which he was entitled to have a ryotwari patta.
6. Idayakottai was a zamin village governed by the provisions of the Madras Estates Land Act (I of 1908). It is not disputed that the two tanks of Melakulam and Appasamudram occupy a portion of what originally formed part of the private lands landholder and that the ayacut under the tanks is entirely comprised of the private lands of the landholder. None of the ryots of the zamindari had any right to the water from the two tanks. The question for consideration is whether in those circumstances, the tanks could be deemed to continue as private lands or at least considered to be so integrated with them as to entitle the landholder to a ryotwari patta even as regards the tanks.
7. It is necessary in this connection to refer to the relevant provisions of the Madras Estates Land Act (I of 1908).
8. Section 3(10) of that Act defines 'private land' as:
(a) in the case of an estate Within the meaning of Sub-clauses (a), (b), (c) or (e) of Clause (2) means the domain or home-farm land of the landholder by whatever designation known, such a kambattam, khas, sir or pannai and includes all land Which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired labour, with his own or hired stocks, for a continuous period of twelve years immediately before the commencement of this Act....
It is not necessary for the present purpose to refer to the remaining portion of that section which related to the case of an estate which became an inam after 1936.
9. Section 3(16) defines 'ryoti land' thus:
'Ryoti land ' means cultivable land in an estate other than private land but does not include (a) beds and bunds of tanks and of supply, drainage surplus or irrigation channel; (b) threshing floor, cattle-stands, village sites, and other lands situated in any estate which are set apart for the common use of the villagers; and (c) lands granted on service tenure either free of rent or on favourable rates of rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists.
From the above definition of ryoti land the beds and bunds of tanks would not form part of a ryoti land. That would not necessarily mean that they would form part of the private land. The determination of that question would depend on the meaning of the term 'private land' as given in Act I of 1908.
10. Neither the word 'tank' nor the words 'tank bed' are defined either under the Madras Estates Land Act (I of 1908) or under the Abolition Act. In ordinary parlance a tank may denote any depression storing water varying in size from a pond to a lake. Ordinarily a tank is closed by an embankment on all sides consisting of earth or masonry or both. In an estate the tank bed is not communal poromboke. The property in the tank bed situate within the ambit of the estate would naturally vest in the proprietor. But his rights would be restricted in a tank which is a source of irrigation for the lands in the estate. Such a tank should be preserved as such, and the landholder would have no power to destroy the same but would on the contrary be bound to maintain and repair it. The right of the ryots in regard to such tanks would be in the nature of easements, but not a proprietary one. Vide Ramaswami v. Ramaswami : AIR1943Mad59 .
11. But there might be tanks in an estate in which the ryots would not have any rights customary or easementary. Such tanks would form the absolute property of the proprietor. The claim in the present case on behalf of the petitioner is that the two tanks of Melakulam and Appasamudram were the absolute properties of the proprietor with no rights outstanding in the ryots and that therefore an appropriate patta should be granted to him in respect of them.
12. The Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948) was passed with the avowed and declared object of abolishing the permanently settled estates and for the introduction of ryotwari tenure in those areas. Under the ryotwari system all arable lands, whether cultivated or waste, are divided into blocks and granted to individuals acting on their own account without a middleman. The State, however, does not grant any title-deed to the ryot but it only grants a ryotwari patta, which has not been understood to be any conferment of title but only as indicating a certain fiscal arrangement between the Government and the individual concerned. The terms of the engagement are the payment to the Government by the pattadar of a tax which is fixed on the basis of a periodical settlement. In addition, the ryot would be bound to pay the Government a tax for the water supplied by the Government for the irrigation of the land covered by the patta. The obligation of the Government is to supply necessary and sufficient water for the accustomed requirements of the ryotwari pattadar and subject to that, the sovereign and paramount right of the Government to distribute water is absolute. A ryotwari proprietor has no right to prescribe the source from which the water should be supplied, though he could insist on the existing arrangements continuing till the Government provides an equally efficient supply. The underlying idea of that sys- tem is that the irrigation sources belong to the Government, the ryotwari pattadar being only the holder of the land and his right being only to obtain the accustomed supply of water with no specific right in regard to the source from which such water is supplied. It is, therefore, not possible to conceive of the grant of a ryotwari patta with regard to a tank in an ordinary Government village.
13. As the object of the Abolition Act is to convert the zamindari estate into a ryotwari tenure eliminating the middlemen, namely, the zamindars, the provisions therein should be understood in relation to that purpose. Broadly stated, the effect of the statute is : On notification of the estate under. the Act, the entire estate (including all communal lands and porambokes, other non-ryoti lands, waste land, pasture land, lanka land, forest lands, etc., rivers and streams, tanks and irrigation works, fisheries and various other rights) would stand transferred to the Government and vest in them free of all encumbrances, and the Madras Revenue Recovery Act, the Madras Irrigation Gess Act, and all other enactments applicable to the ryotwari areas be applicable to the erstwhile estate. The result of the notification would be to vest the entire estate in the Government and the proprietor would be entitled only to a compensation. Provision is, therefore, made under the Act for the notification and taking over the estate, appointment of Settlement Officers and Tribunals, the grant of pattas, adjudication of disputes and compensation to be paid to the proprietor for expropriation of his land. Section 11 specifies the land in which the ryot would be entitled to a ryotwari patta. Section 12 specifies the lands in the zamindari estate in which the landholder would be entitled to a patta. Section 13 concerns itself with the lands in an inam estate, while Section 14 with under-tenure estate. As regards the grant of a ryotwari patta in regard to private lands the relevant portion of Section 12 is this:
12. In the case of a zamindari estate, the land-holder shall with effect on and from the notified date, be entitled to a ryotwari patta in respect of (a) all lands (including lanka lands) which, immediately before the notified date, (i) belonged to him as private land within the meaning of Section 3, Clause (10)(a) of the Estates Land Act, or (ii) stood recorded as his private land in a record prepared under the provision of Chapter XI or Chapter XII of the said Act, not having been subsequently converted into ryoti land....
Section 15(1) states,
The Settlement Officer shall examine the nature and history of all lands in respect of which the landholder claims a ryotwari patta under Section 12, 13 or 14 as the case may be, and decide in respect of which lands the claim should be allowed.
Sub-section (2) of Section 15 provides an appeal to the Appellate Tribunal. Section 16 makes every person who becomes entitled to a ryotwari patta liable to pay the assessment, etc., to the Government. Section 21 authorises the survey of estates : Sub-section (1) of that section states:
Any estate or part thereof may be surveyed, or, if it has been surveyed before the notified date may be resurveyed, as if it were Government land, in accordance with the provisions for the survey of such land contained in the Madras Survey and Boundaries Act, 1923.
Provided that any resurvey made under this Sub-section may be limited to what is necessary for the introduction of the ryotwari settlement in the estate or part thereof.
Sub-section (2) of that section states,
The cost of the survey or resurvey, except so much thereof as is payable by the ryots or the landholder under the provisions of Section 8 of the Madras Survey and Boundaries Act, 1923, shall be borne by the Government.
Section 22 prescribes the manner of effecting the ryotwari settlement of the estate. Section 67 enables the Government to make rules to carry out the purposes of the Act.
14. Under the authority vested in Section 67 the Government have framed rules for the working of the Act. In particular rules have been framed by the Government on 31st October, 1950, in regard to the grant of patta to the landholder. Those prescribe, that every landholder claiming a ryotwari patta under Sections 12, 13 or 14 as the case may be, should apply in writing to the Settlement Officer within six months from the notified date or within 2 months from the date of publication of the rules whichever was later. Every such application should be in a Form specified in the Appendix to the Rules. That Form directed the landholder to specify, among other things, the local name, if any of the land, survey number and sub-division, extent in acres and cents, classification wet or dry and survey numbers of the boundaries and the summary of evidence proposed to be adduced in support of the claim. It is clear from Section 15 and the Rules and the Form prescribed that, the right to a ryotwari patta in respect of the private lands of a landholder is a matter for adjudication by the Settlement Officer, and that he has got to make out his claim with reference to every field or survey number claimed by him.
15. We have then to consider whether an irrigation tank though constructed on what was once the landholder's private land could be held to be private land. Mr. Vedantachariar, the learned advocate for the petitioner, first contended that as the tank was in origin a private land the landholder would be entitled to a ryotwari patta as the tank was essentially a land containing water and as a private tank it should be held to be private land. The contention was reinforced by reference to certain authorities which held that the word 'land' included in its conception water thereon. Reference was also made to a passage in Coulson and Forbes on 'Weters and Land Drainage ', 6th edition, page 124, where it is stated ;
It does not appear that by the English law there is any difference as to the ownership of the soil between land covered with still and running water. Where, therefore, a lake or pool iics wholly within, and is surrounded by a manor or estate, the presumption is that the owner of the manor or estate is also the owner of the soil of the lake; and where the boundary of two properties passes along the pool, it is taken to coincide with the medium filum of the pool; although, of course, it may be proved expressly to have some other direction.
16. From this it is contended that as the term 'land' also includes a land over which water is stored, a tank should be held to be a land, and the ownership being in the proprietor with no outstanding claim thereto in anybody else, it should be held to be private land. We cannot agree with this contention. The term 'private land' in Act I of 1908 has a statutory meaning given to it. It. cannot be interpreted to mean a land which is private ; and then taking the meaning of the word 'land' as including a tank, to treat private tank as private land within the meaning of the statutes. '
17. It is then contended that the tanks in the present case were appurtenant to the cultivated private lands of the petitioner, and that therefore if the cultivated portion of the lands were to be granted a ryotwari patta in favour of the petitioner, the appurtenant rights of irrigation should also pass to him.
18. In Sadhu v. Bihari Singh I.L.R. (1908) All. 282 there was a house which was appurtenant to an agricultural holding of a village. That village was divided between two co-sharers with the result that the house of the tenant was within the portion owned by one co-sharer while right over the agricultural holding fell to the other sharer. The co-sharer landlord in whose share the house of the tenant fell sought to eject him on the footing that the tenant had no agricultural land within the property allotted to his share. The claim was rejected on the ground that the partition between the two co-sharers effected no change in the position of the tenants and so long as he was in possession of the occupancy holding he could not be ejected from the house as that house was a part of the holding and appurtenant to his agricultural holding.
19. In Babu Lal v. Ram Prasad I.L.R. (1939) All. 67 it was held that the phrase 'appurtenant to an agricultural holding' meant something which was adjunct to or part and parcel of the holding. In its secondary sense it meant what was usually enjoyed with and not in the sense of a right of easement. In that case two plots of abadi land were in possession of the tenant from the times of their ancestors, who had been occupancy tenants, and were used for the purpose of tethering cattle storing manure, etc. It was held that in the absence of the evidence regarding the origin of the tenancy or of the possession of the plots by the tenants the plots should be regarded as appurtenant to the holding and that so long as the tenancy subsisted the landlord was not entitled to sue for possession of the plots.
20. In Srinivasa Rao v. State of Madras : (1956)2MLJ595 . it was held that where a parcel of land was held by a person for cultivation with a tank upon it the tank would go with the land and that if there was patta for the land there should be a patta for the tank as appurtenant thereto.
21. In our opinion, it would be difficult to justify the claim of the landholder to a ryotwari patta in respect of an irrigation tank on any theory of appurtenant or accessory rights. The relation between principal and accessory rights is the converse of that existing between servient and dominant rights. In either case the owners should be different. One right can be adverse to another only if it is vested in a different owner. This would apply even in regard to a beneficial right to arise out of another property. The accessory right would be a beneficial right to the owner of the property. Where the owners of the two properties are the same no question of accessory rights would at all arise for the simple reason that the person who has the higher rights of ownership in regard to both the properties could not (and hardly could have even intended to) create a right against himself. It follows that where the proprietor was entitled to all the lands within the ambit of his estate (except of course the ryoti lands in respect of which he would only have the melwaram rights) no question of accessory rights in regard to a particular plot of land can arise in relation to another part of the property of the proprietor. This would be so even adopting the extended meaning given to appurtenant rights in Babu Lal v. Ram Prasad I.L.R. (1939) All. 67
22. It was next contended that the tanks having been constructed for the irrigation of the private lands of the landholder they should be held to form part and parcel of the private lands and a ryotwari patta granted on that basis. In support of that contention the analogy of issuing patta to a ryot under Section 11 was relied on. Under Section 11 of the Act a ryot would be entitled to a ryotwari patta in respect of the ryoti lands properly included or which should have been properly included in his holding. If a ryot were to construct a tank upon a portion of the holding, it would be an improvement to the ryot's holding within the meaning of Section 3(4) of Act I of 1908, and it would only enhance the value of the holding rather than cease to be a ryoti land. It would not vest in or revert to the landholder, on the ground that not being cultivable land it could not properly be within his holding. It is contended that as in such a case the ryot would be entitled to the patta in respect of the tank, in the case of private lands also, a tank constructed within the area of the private lands of the landholder, should be considered to be an improvement to the private lands and therefore should go with them. It must be pointed out that a tank constructed on a ryoti land is considered to be an improvement by virtue of a statutory definition for certain purposes mentioned in the statute. It cannot be stated that under the general law an irrigation tank would form part of the contiguous lands. It is unnecessary for the purposes of this case to consider whether after a notification under Act XXVI of 1948 a ryot on whose property an irrigation tank is situated would be entitled to a ryotwari patta for it on any theory of improvement. Even so, in our opinion, that concept of an improvement within a holding would not apply to the case of private lands as the landholder could not be treated as having a holding under any person so as to protect his right as against him on any basis, statutory or otherwise and to consider a tank constructed by him on his own property as an improvement of any particular portion of his property. There is no warrant for such a theory either on principle or on the statutes. The tank would be the property of the landholder as much as the other private lands are, and there is no need to justify his ownership thereof on any theory of improvement. It is then contended that the tank should be held to be a part of the holding on the principle of certain decisions to be referred to presently.
23. The learned advocate for the petitioner referred to the decision in Nidhi Krishna Bose v. Ram Doss Sen (1873) 20 Weekly Reporter 341. In that case there was a lease of a tank. The property of the proprietor was purchased by another person and the purchaser sought to evict the lessee of the tank. The latter pleaded that he had a right of occupancy in the tank. Couch, C.J., observed:
Where land is let for cultivation, and there is a tank upon it, the tank would go with the land; and if there was a right of occupancy in the land, there would be a right of occupancy in the tank as appurtenant to the land. But here the tank is the principal subject of the lease, and only so much land passed with the tank as is necessary for it, namely, for the banks. This in reality is the tank and according to the decisions there cannot be a right of occupancy acquired in it.
The learned Chief Justice held that the lessee did not acquire a right of occupancy in the tank. This decision is relied on as indicating the possibility of a tenant acquiring an occupancy right over a tank when it was part of the demise of agricultural lands.
24. The decision in Surrendra Kumar v. Chanderatara Math : AIR1931Cal135 was next relied on. Referring to the decision in Nidhi Krishna Bose v. Rama Doss Sen (1873) 20 Weekly Reporter 341 Mitter, J., observed:
The true test as to whether the lease is for agricultural purposes or not is to see whether the primary object was the lease of the tank or lease of the land surrounding it for purposes of agriculture with tank within it. In this respect the area of the surrounding land is an important factor to be considered.
25. It was held in that case that the lease was of both the tank and the banks and that the tenant would get an occupancy right.
26. In Sobharam v. Raja Mahton (1957) I.L.R. 36 Pat. 471 this view of the Calcutta High Court was accepted by the Patna High Court.
27. The decision in Srinivasa Rao v. State of Madras : (1956)2MLJ595 . accepted the claim of the landholder to a tank patta even on this footing.
28. In Rangaraju v. State of Andhra A.I.R. 1958 A. 375 it was held that if there was proof that the whole of a block of land had been enjoyed as private land, the mere fact that a small portion of it constituting an integral part thereof was used for purposes other than cultivation did not make that part any other than a private land, and that it would be reasonable to infer that the whole block of land as a unit was reserved by the landholder himself for the purpose of cultivation.
29. In our opinion the question has got to be decided not on the basis that an item of property in respect of which a ryotwari patta is claimed was a part of a holding or of a block of lands but as to whether that item would be private land as defined in the Madras Estates Land Act, 1908. The Abolition Act vests the entire estate in the Government after a notification is made. The landholder would be entitled to patta only in respect 'of the ' private ' land contemplated in Section 12(a). In the case of a ryot there will not be much difficulty in ascertaining the extent of his holding as in all estates accounts are kept with regard to each holding. But this is not an universal practice in regard to the landholder's private lands. The question whether a particular item of property was on the date of the notification the private land of the landholder has to be decided in each case.
30. It is argued that if in regard to a well situated within the land, it could be held that the landholder would be entitled to have a patta for the land on which the well is situated, there could be no difference in principle if a patta is sought in respect of a land in which a tank is situated. Such an argument though it looks plausible cannot, however, be accepted. There are various types of irrigation sources in our country, such as wells, tanks, ponds and lakes. The acceptance of such a principle would lead to anomalies and practical difficulties. For example : The landholder could after obtaining patta treat the tank as his own, convert it into arable land if possible and insist on the Government providing irrigation for all his lands. Once patta is granted there would be no obligation on him to maintain it as an irrigation source. Even if the tank is retained as an irrigation source it would create within a ryotwari village, a separate system of irrigation in regard to a portion of the village, while the others would be looking up to the Government for irrigation of their lands. If in later years the property of the erstwhile landholder comes to vest in various persons by inheritance or alienation, the distribution of water from the private tank would be a matter of conflicting claims and disputes. Distribution of water to a part will have to be in the hands of private individual in regard to those lands while the rest of the village would depend on the Government. Further if this principle were to be accepted, it would mean that big tanks and lakes would necessarily have to vest in the erstwhile proprietors who were entitled to pattas in respect of the private land alone. That obviously could not have been the intention of the legislature. In this method of approach to the question, viz., the appurtenance and part and parcel theory it would always be difficult to draw the line as to in what cases the landholder would be entitled to a patta in respect of an irrigation tank or other reservoir.
31. The Act has proceeded to solve the difficulty by directing a judicial or quasi-judicial investigation under Section 15 of the Act. The survey contemplated by Section 21 would place in the hands of the Settlement Officer and the Tribunal enough details to ascertain whether a disputed item of property was a well or pond or an irrigation tank, If it is decided that it was an irrigation tank, it could not be held to be a private land. The essence of a private land is that it should have been cultivated and no irrigation tank could be held to have been cultivated land. In such a case the landlord would not be entitled to a patta for it. The wording of Section 3(b) of the Abolition Act vests all irrigation works in the Government. But a right to ryotwari patta is created only in respect of private lands, and that too after an investigation whether they were such lands on the date of the vesting. Viewed from another aspect, the same conclusion would seem to follow. What is claimed is a ryotwari patta. The incidents of a ryotwari tenure to which reference has been made already would indicate that irrigation sources belong to Government and should belong to the Government, for then alone it could be able to direct an equitable distribution of water amongst the various pattadars. Further, ownership of the irrigation sources provide an important head of taxation, which would bring increasing revenue to the state as and when more and more lands are cultivated.
32. With great respect to the learned Judges who decided Srinivasa Rao v. Stats of Madras : (1956)2MLJ595 , we are unable to share their view that a landholder's right to obtain a ryotwari patta for an irrigation tank under Section 12(a) of the Abolition Act could be supported either on the theory of appurtenant rights or that the tank formed part and parcel of the private lands of the landholder. In our opinion, the provisions of Section 15 of the Abolition Act and the Rules made under the Act, indicate that the intention of the legislature was not to entitle the landholder to obtain a ryotwari patta for a tank merely for the reason that it was situate within the boundaries of his private land the question in the first instance would be a matter for judicial adjudication under Section 15. If it is found that having regard to its size and the quantity of water in the reservoir, it was nothing more than a well or a pond, the landholder would be entitled to have it included in the patta for the land of which it is a part. If on the contrary it was held that the tank was really an irrigation source for other lands although all of such lands would be included in a patta to be granted to the landholder, the tank would be Government property and the landholder would have no right to obtain a patta for the same.
33. In the present case the Tribunal has after considering the evidence, come to a conclusion that the landholder would not be entitled to a ryotwari patta in respect of the tanks. We are not shown as to how that finding, which is within the jurisdiction of that Tribunal could be challenged in these proceedings.
34. The result is, the petitions fail and are dismissed. There will be no order as to costs.