1. The plaintiff is a jenmi of Malabar and brings this suit for the removal of an anicut erected by the 1st Defendant with the permission of Government, the 2nd defendant, in a thodu which the plaintiff states is his own property. He also claims damages and other reliefs.
2. The Subordinate Judga, who tried the suit, has found on Issue No. 1 that the plaintiff is the owner of the thodu on which the anicut is crected, but he has dismissed his suit on the ground that the plaintiff is estopped from claiming the thodu as his. The appellant, plaintiff, now objects to this finding on the ground that the plea of estoppel is not raised in the pleadings and no issue was framed on the point This is undoubtedly true and it is possible that the plaintiff has been prejudiced by this omission The plea has been tried and there are allegations in the 1st defendant's written statement which are such that the plea of estoppel might have been raised; but, in such cases, it is always advisable, if not essential, that the plea should be definitely raised and an issue framed on the point. We think, therefore, that in this case this issue as to estoppel should be raised and the parties allowed to adduce further evidence upon it.
3. Another objection is taken by the learned Advocate General that in Government's written statement not only was the ownership of the Vandithodu claimed by Government, but also the right to control the water of the thodu for irrigation. No separate issue was framed on this latter claim hut it might be held to be covered by the general Issue No. 3, 'Is plaintiff entitled to have the anicut demolished?' This issue was framed before Government was made a party to the suit, and it is possible that the Subordinate Judge considered that it would cover this plea raised by Government and consequently no definite additional issue was learned on the point. The Sub-ordinate Judge, however, has not considered the point in any way nor the evidence in regard to it. We, therefore, frame an issue on that point and direct the Subordinate Judge to try the following issue If Issue No. 1 is found in favour of the plaintiff, has Government the right to control the use of the water of the thodu for irrigation?
4. We may also observe that, in his finding on the first issue as to ownership, the learned Subordinate Judge has treated the decision of this Court in Neelakhandan Nambudripad v. Secretary of State  12 L.W. 371, as conclusive of the plaintiff's ownership. That decision was not between the present parties and is not, therefore, binding on them absolutely. What that case decided was that in Malabar there is a presumption that the owner of the bank of a stream is entitled to the bed usque ad medium filum aquae. The plaintiff, therefore, in this case would start with that presumption in this favour, but it would only be a piece of evidence as to his ownership. This presumption can be rebutted by other evidence. A great deal of evidence has been left in which the Subordinate Judge has not considered at all. We therefore, think it advisable that he should consider this evidence and come to a fresh finding upon the first issue. The ownership is a question of fact which must be decided upon the evidence adduced.
5. We may also observe that the Subordinate Judge seams to take it for granted that the plaintiff is the riparian owner of both sides of the thodu during the whole of its course over the plaint site. This is not admitted by the 1st defendant and consequently the point has to be considered in deciding Issue No. 1.
6. The findings must be submitted within two months from the re-opening of the Court. Objections within ten days.
[After the return of the findings the following judgment was delivered :]
7. The plaintiff brings this suit for the removal of a stone anicut put up by the 1st defendant with the IInd defendant's permission in a stream called Vandithodu. Prior to 1855 this stream had a course different to the present course. It ran from the point C in the Commissioner's plan over the land marked as L series and back to the present course of the stream at the point L. In 1855 the stream was diverte into its present channel and a lease was granted in respect of the land forming the bed of the old stream and these lands have since been cultivated as paddy lands.
8. It is the defendants' case that, ever since 1855 or thereabouts, a temporary dam has been put up near the point C in order to divert the water of the stream into the channel CHANEL and by means of this channel the lands had bean irrigated. This is found to be a fact by the lower Court and think this finding is correct. Admittedly, ever since the 1st defendant obtained possession of some of these lands, he has been putting up a temporary dam with the permission of Government, i.e., since 1912. These is also evidence that such a dam has always been put up since the course of the stream was changed and none of the plaintiffs witnesses is prepared to deny that such temporary dams were erected. 9. It is suggested for the plaintiff that the channel CHANEL is a new channel; but it is proved conclusively that the drain C H which is a masonry structure is very old, that the channel from H to A is old and that the channel from E to L is also old. It is contended that the intervening portion A N E has been newly dug and this contention is based on the Commissioner's, evidence, that when he inspected the place, there were signs of new digging, the bankbed having bean freshly cut.
9. It is, however, very difficult to believe that the channel was originally constructed at both ends and that the portion in the middle was only recently dug for that would do away with the benefit of the channel almost entirely. In fact the lower portion of the channel from E to L would be quite useless unless it was connected with the upper portion of the channel starting at the point C. On this point the evidence of the defendants witnesses must be accepted, and if it is once held, that the channel has all along bean in existence, it is extremely probable that a temporary dam would have been put up in order to divert the water of the stream along the channel for the water would not otherwise flow into the channel at seasons of low water. The probabilities being in favour of the defendant's case and there being no direct evidence to the contrary, it must be held that temporary dams were putup annually from about the year 1855.
10. The Subordinate Judge has found that the bed of the present stream, at the point where the anicut marked T has been newly crected, belongs to the plaintiff and this finding has been arrived at both by the Subordinate Judge, who originally tried the case, and the Judge, who has submitted the findings called for. Both of them base their findings on the fact that the land on both the banks of the stream belongs to the plaintiff's mana and draw the presumption that the bed of the stream between those banks is the plaintiff's. Such a presumption was held to arise in Neelakhandan Nambudripad v. Secretary of State  12 L.W. 371 and apparently both the Judges in the lower Court have treated it as conclusive and have not contemplated the possibility of the presumption being rebutted by other evidence. Even assuming that the lands along both the banks do belong to the plaintiff -- and this is by no means admitted so far as the plot Q at the north end of the anicut is concerned- the presumption, that the bed of the stream between those banks belongs to the plaintiff, may be rebutted.
11. In the present case, we have evidence that: since 1855 temporary dams were being put up annually with the permission of the Government, a fact which assumes Government's right to deal with, the bed of the stream either as owner or as having a right of controlling irrigation.
12. However, when the land was surveyed, the bed of the stream was surveyed as Survey No. 45 and was classed as poram-boke, i.e., as belonging to Government. No objection seems to have been taken to this classification by the plaintiff and we have also the admission by the plaintiff that the stream does belong to Government. In Ex. XXXV, the petition put in by the Kariyasthan to the plaintiff's mana, in which objection was taken to permission being given to the 1st defendant to put up a stone anicut, there is no assertion that the bed of the stream belongs to the plaintiff and the petitioner admits the right of the Government to grant such permission. Again in Ex. XXXVI, the application made on behalf of plaintiff's mana by the plaintiff's son to divert the course of the Vandithodu, there is a distinct assertion that the Vandithodu is owned by the Government and the petitioner asks that the rights of Government over the plaint thodu may be made over to him for conversion of the bed into wet lands. Again in Ex. XXXVI (a) the plaintiff's Kariyasthan admits that the thodu belongs to the Government.
13. This was in a deposition made on 8th. August 1917, in a criminal complaint filed by him against the 1st defendant with reference to the suit aniout. When this Kariyasthan was examined as P.W. No. 7, he admitted making the statement and he also admitted that this allegation, that the thodu is the sirkar thodu, is correct. In addition it is admitted that Government possessss an anicut in the Vandithodu about 2 miles above the plaint site, and admittedly the stream does not flow exclusively through plaintiff's land. The conduct of Government, its assertion since 1855 of the fight to the stream and the very clear admissions of plaintiff to the same effect, are quite sufficient to rebut any presumption that may arise from the fact that the plaintiff owns the banks of the stream. It is, however, contended that inasmuch as the present stream runs Over land, which he claims as his, the presumption of ownership is very much stronger. Apart from the fact that the plaintiff owns the two banks and possibly did also own the land between them, there is no proof that the land did really belong to him and, therefore, I do not think that this fact has any particular significance. The land has been the bed of the stream since 1855 and this bed has always been claimed by Government as pointed out above. Government must, therefore, be deemed to be the owner either because it is the customary law of the district that beds of natural streams belong to Government or because Government has acquired a right by prescription.
14. On this evidence, I hold that the bed of the stream belongs to the Government. This would be sufficient to dispose of the appeal for Government as owner can permit the erection of an anicut on its property so long as such construction does not interfere with plaintiff's vested rights. A question might arise as to the construction at the southern end which has been found to be plaintiff's land. This portion is now covered by the water of the stream and apparently forms a portion of the bed, the alteration being due to the bank being washed away by floods. There is no evidence to show when the bank was washed away, and consequently nothing to show that this small piece of land was not a portion of the bed which I have found to belong to Government.
15. The lower Court has, however, based its decree on other grounds, which I will now deal with. The lower Court has found that the pliintiff is estopped from claiming the relief sought inasmuch as he encouraged the defendants to put up the stone anicut by his conduct. The defendants applied in April 1916, for permission to put up a permanent anicut (vide Ex. R). The plaintiff objected to permission being granted in Exhibit XXXV, dated 19th June 1916. Permission was refused by the Tahsildar, but was subsequently granted by the Collector on 27th January 1917. The 1st defendant executed a kaichit in accordance with the Collector's order on the 12th March 1917, and the construction of the anicut was completed sometime in June 1917. Before the construction began, plaintiff had filed Ex. XXXVI in which he recognized the right of Government to the stream.
16. The question is whether the plaintiff can be said to have made a representation to the defendants whereby he intentionally caused or permitted them to believe that the thodu belonged to the Government and act upon such belief. The argument for the appellant is, that although he admitted the right of the Government to the stream, yet he, at the same time, objected to permission being granted to build the anicut and that, therefore, the act of construction of the anicut is not one, which was done in the belief caused by plaintiff's representation. If the representation made by the plaintiff was one qualified by certain other circumstances, it must be read with those qualifications; but when there is no such qualification but merely an independent subsidiary objection to action being taken in a certain manner, I do not think that this statement can deprive the representation of its ordinary effect. In effect plaintiff said to Government ' you are the owner of the stream and have power to grant or refuse permission. Please do the latter.' After that representation was made, Government acted and 1st defendant, with the permission of Government, erected the dam. Undoubtedly this representation must have had same influence on the mind of Government in granting permission and on 1st defendant in acting on that permission. It is then argued that there is no evidence to show that the plaintiff's representation did conduce to the subsequent action of the defendants. Apart from the direct oral evidence of the 1st defendant that he would not have built the dam if he had known that the stream belonged to the plaintiff, I do not think it is possible to dissociate the effect of the representation from the other circumstances, which induced the defendants to act. It is impossible that they would have acted in the same manner on their own belief that the stream belonged to Government, but undoubtedly they would be strengthened in their action by the direct assertion of the plaintiff who now claims the bed, that the stream belonged to Government.
17. I do not think any inference can be drawn that the plaintiff's representation had no influence on their subsequent act, merely because plaintiff took objection to such act. The representation made had reference to the ownership of the stream, and Government was expressly asked to act as if that representation was true. Even if Government believed that the stream was theirs before that representation was made, yet, if the stream really belonged to plaintiff, this representation must have strengthened the belief and have had some influence in determinining Government's conduct and it cannot be said that the representation was not made intentionally, nor that plaintiff did not permit nor intend Government to act upon it in the belief that it was true.
18. I also think that the facts of this case bring it within the principle laid down in Ramsden v. Dyson  1 H.L. 129 that:
If a stranger begins to build on land supposing it to be his own, and the real owner, perceiving his mistake, abstains from setting him right, and leaves him to persevere in his error, a Court of Equity will not afterwards allow the real owner to assert his title to the land.
19. In that view plaintiff cannot sue for the removal of the anicut, for he allowed 1st defendant to build it upon his land and to believe that the land was not his land.
20. If such act had caused other damage to plaintiff he would be entitled to recover, but the lower Court has found that no such damage was caused, and we have been referred to no evidence which could establish that the damage complained of was caused by the erection of the anicut, for it might equally be attributed to the ordinary action of a jungle stream in flood when unobstructed by an anicut. The appeal accordingly fails and is dismissed with costs.
Venkatasubba Rao, J.
21. In deciding the question whether the 2nd defendant was justified in building the anicut, the first point that has to be determined is in regard to the ownership of the bad of the stream. Both the Subordinate Judges who tried this issue have come to the conclusion that the plaintiff is the owner. After a detailed examination of the documents filed in the case, the Subordinate Judge, who has submitted the finding, has held that the lands on both sides of the anicut belong to the plaintiff and that he is, therefore, the owner of the bed of the channel at that point. That the plaintiff owns the lands at both ends of the anicut does not seem to be open to much doubt. It was admitted on behalf of the defendants before us in argument that the plaintiff is the owner of the lands on the southern bank. The ownership of the plaintiff, however, of the land at the northern end of the anicut has been disputed in this Court. I do not consider it necessary to discuss in detail the documentary evidence on which the finding of the Subordinate Judge ia based. While conceding that the plaintiff owns a large plot of the land on the northern bank of the stream, the 1st defendant's learned vakil tried to show that the extent marked P and a portion of Q in the Commissioner's plan belong to the 1st defendant. Reliance was placed upon Ex. 14 and it was contended that Item No. 3 in it corresponds to P and a portion of Q.
22. In my opinion, this contention has not been shown to be well founded. There was merely a general complaint that the Subordinate Judge's finding on this point is wrong, but no attempt was made to attack any particular fact relied on by him or any particular inference drawn. The Commissioner states in his report that before him the plaintiff was admitted to be the owner of both the banks, but, though the correctness of this statement is disputed, it is significant that the 1st defendant as D.W. No. 1 admits in his cross-examination ' plaintiff owns Parambas on both sides of the anicut T in Ex. M' It is impossible to construe this as referring to the plaintiff's ownership generally of the lands on the two banks. The statement that the plaintiff is the owner of the land on both sides of the anicut most mean that he is the owner of the land at both ends of it. Apart, however, from this admission, I am not satisfied that the Subordinate Judge's conclusion is wrong.
23. If the plaintiff then has proved his ownership of the two banks, does it follow that he is the owner of the bed? It has been held that jenmis in Malabar are-proprietors of the soil. One of the incidents of riparian proprietorship is that prima facie the proprietor of each bank of a non-tidal and non-navigable stream is the proprietor of half the land covered by the stream. In other words the ownership of the bed is in the respective owners of the land on either side of the stream ad midium filum. This right on the part of Malabar jenmis is recognized by Sankaran Nair, J., in Meenakshi Amma v. Secretary of State : AIR1914Mad841 and in the more recent case decided by Spencer and Krishnan, JJ., Neelakhandan Nambudripad v. Secretary of State  12 L.W. 371. The authorities are fully discussed in these two cases and I do not propose to go over the same ground. Following these cases I hold that the plaintiff is prima facie the owner of the portion of the bed where the anicut has been built. In regard to the wider question whether a different rule applies in ryotwari tracts I would prefer to reserve my opinion.
24. Has this presumption of law been rebutted? There is a circumstance which in my opinion leads to strengthen this presumption.
25. The original course of this channel was different and the present course was formed on or about the year 1885. It is not disputed that before the diversion, the land which forms the site of the present bed belonged to the plaintiff. If on the date of the diversion this land belonged to the plaintiff, has the ownership since been transferred to Government? The learned Advocate-General tried to contend for the first time that the Gevernment acquired title by adverse possession. This is not the case put forward and apart from this, there is absolutely no evidence in support of it. As regards the question of ownership, some reliance is placed by the defendants upon what is said to be an 'admission of P.W. No. 7, the agent of the plaintiff. He tiled a criminal complaint against the 1st defendant in regard to the building of the anicut and in his deposition is to be found the statement. ' That thodu belongs to the Government.' This deposition is marked XXXVI (a). When P.W. No. 7 was under cross-examination in this case he said that this statement in his previous deposition was true. He could hardly have meant that he conceded the ownership of the Government to the plot in question. That was the very point which he was strenuously disputing and earlier in his cross-examination he distinctly stated:
The thodu is question belongs to the plaintiff, that is, the site where the anicut stands belongs to the plaintiff.
26. And in examination-in-chief he also said:
I did not admit to him (the Tahsildar), that the site where the dam would be put up belonged 'in jenm to Government.
27. I find it very difficult in the circumstances to accent the suggestions that the plaintiff's agent admitted that the site of the anicut was the property of the Government. It will be seen that the plaintiff's agent even in Ex. XXVI, dated the 24th March 1917, claimed that only about 80 per cent. of the lands on both sides of the stream belonged to the plaintiff and if the Government was the owner of some portion of the bank, it would not be altogether wrong to say that the Government was the owner of the thodu, though this is a statement that requires qualification. Moreover, it must be remembered that so far as the ownership of the bed is a matter of legal inference, a layman may quite naturally make a mistake having regard to the fact that the proposition was disputed even in this case. I am not, therefore, prepared on the strength of this admission to reject the finding of the Subordinate Judge which, in my opinion, has been reached .on a careful consideration of all the circumstances.
28. If the plaintiff then is the owner of the bed of the stream on which the anicut has been built, the next question that has to be determined is whether the Government can justify the act on the ground that it has a paramount right in this country to regulate the waters of natural streams for purposes of irrigation This right is recognized in Robert Fisher v. Secretary of State  32 Mad. 141 Which,, however, also lays down the limitation that for purposes of exercising this right of control, Government will not be waif-ranted to committing an act of trespass (P. 156 of 32 Mad.). That the right of the Government is subject to this reservation, is stated in emphatic terms by both Abdur Rahim, J., and Srinivasa Ayyangar, J., in Secretary of State v. Palamyappa Pillai  6 L.W. 572.
29. In this case a portion of the site on which the anicut has been built is outside the bed of the river, and clearly belongs to the plaintiff (see the Comissioner's report). Even apart from this, in any event, the plaintiff i the owner of half the bed over which the anicut stands. On the ground that the Government has a general right of control the act of the defendant cannot, therefore be justified.
30. This right of the Government to regulate the waters of a stream is also subject to another limitation, namely, that by the act complained of, no sensible damage shall be caused to the owner of the adjoining lands. In this case, no-doubt, the lower Court has come to the conclusion that the plaintiff has proved no damage. The matter was dealt with somewhat summarily by the Subordinate Judge. In the first place, the plaintiff filed the suit within three months after the building of the anicut, and in the very nature of things it would be difficult to adduce proof of actual damage. But it seems to me that the Subordinate Judge has overlo6ked three very important Exs. O, P and Q. Though they came into existence after the institution of the suit, they contain clear admissions-on the part of the Government, that the building of the anicut has greatly prejudiced the plaintiff and is likely to cause to him substantial damage. They are statements made by a responsible Officer of the Government and, in my oppion, on a question of this kind, are entitled to great weight. As the oral evidence on the point has received this corroboration, I am prepared to act upon it. For these reasons, I do not agree with the finding that damage has not been proved.
31. If the matter stood thus, I should have no difficulty in upholding the plaintiff's claim, but on the question of estoppel that has been raised in the case I am prepared to agree with my learned brother's conclusions although I do so with considerable hesitation. The 1st defen defendant has attempted to support this plea by referring in his evidence to two representations said to have been made by or on behalf of the plaintiff. He has deposed firstly that in 1912 the plaintiff told him that the thodu belonged to the Government and that he might obtain its permission and construct an anicut, secondly, that in 1917 when the Tahsildar asked the plaintiff's agent if he had any objection to the granting of permission, he while expressly admitting that the Government was the owner of the thodu, objected on the ground that the building of the anicut would prejudicially affect his master's land. This evidence has not been corroborated. The alleged conversation in 1912 is clearly an invention. If this incident was true, the evidence would have been fuller and less casual. In regard to the admission said to have been made in 1917 the order of the Tahsildar and the proceedings that led to it do not support this evidence. It must, moreover, be remembered that in view of the circumstances in which the issue of estoppel was tried, any oral evidence given must be received with great caution. The learned Subordinate Judge who saw the witness in the box does not accept his evidence and I agree that no reliance can be placed upon it. I have not the least doubt that the case put forward by the 1st defendant, namely, that he was misled by a definite representation of the plaintiff or his agent, is utterly, untrue. If the decision of this issue should depend upon my accepting the specific case put forward in his evidence by the 1st defendant, I should have, therefore, no difficulty in deciding the question against him.
32. Then, can it be said that by his conduct the plaintiff's agent led the defendants to believe that the ownership of this portion of the bed vested in the Government? When the 1st defendant applied to the Tahsildar for permission to build an anicut, the plaintiffs' agent objected on the ground that if the anicut was built damage would be caused to his lands. Can it be said that by this conduct the plaintiff's agent impliedly admitted that the Government was the owner of the thodu? Is an admission of the defendant's right to the thodu necessarily implied 'in this representation? The conduct of the plaintiff's agent may amount to conceding that the Government has a right to grant or withhold permission. But the recognition of the Government's ownership is not a necessary inference from his conduct.
33. To create an estoppel the declaration, act or omission must be of an unequivocal and unambiguous character, Onward Building Society v. Smithson  1 Cn. 1, Low v. Bouverie  3 Ch. 82, In re Lewis, Lewis v. Lewis  2 Ch. 656, and Colonial Bank v. Cady  15 A.C. 267.
34. But there is greater force in the next contention of the learned Advocate General, namely, that the conduct of the plaintiff's agent amounted to a representation that the Government had the right to give or withhold permission to build the anicut -- it is immaterial on what footing the existence of this right was conceded. I do not think this position can be really disputed. The conduct of the plaintiff's agent as well as the language Ex. 35 (his petition to the Tahsildar) if reasonably understood, could have led the defendants to believe that the Government had the right in question.
35. But this part of the case is deficient in two respects. Neither of the defendants had let in evidence to show that in fact he was misled by this conduct or representation on the part of the plaintiff's agent. The defendants have not shown that they would not have acted in the way they did, but for the conduct of the person against whom the estoppel is raised. It is an element of estoppel that the party setting it up must have acted in reliance upon the conduct or the representation of the party sought to be estopped. The second defect results from the form of the issue. Although there was at first neither a plea of estoppel nor an issue in regard to it, the Subordinate Judge who originally tried the suit dismissed it on the ground that' the plaintiff was estopped from asking for the removal of the anicut. The estoppel to which he made reference was that the plaintiff led the 1st defendant to believe that he was not the owner of the river-bed but that the Government was, When we heard the case on the previous occasion, the only estoppel relied upon was that the plaintiff was precluded from claiming the thodu as his. The issue framed in consequence of our order runs thus:
36. Is the plaintiff estopped from claiming the thodu as his?
37. It will thus be seen that the matter that was put in issue was the plaintiff being estopped from claiming the bed and not from disputing the Government's right to permit the building of the anicut.
38. My learned brother, however, is prepared to assume that it is highly probable from the circumstances that the defendant's act was influenced by the plaintiff's conduct and in his opinion the defect in the form of the issue is not material. In view of the fact that my learned brother's decision is in agreement with the views expressed by two different Subordinate Judges, I am not prepared to dissent from him.
39. Granting then that the conduct of the plaintiff amounted to a representation that the Government had the right to give or withhold permission to build the anicut and that the defendants were influenced by and acted in reliance upon that representation -- can it be said that estoppel does not arise because the plaintiff while making the presentation expressly prohibited the defendants from building the anicut? There is no authority directly bearing on the question. If these three elements exist, namely, (1) there is the declaration, act or omission on the part of the person sought to be estopped; (2) if it reasonably induces a belief that a thing is true and (3) the effect of the representation is to cause the other to act on the faith of it -- if these exist it is not necessary to show further that the person waking the representation really intended that the other should act upon the, belief to his own prejudice. Let me take a simple example. Supposing A tells B that he intends to purchase a plot of land from C and asks him whether he claims to be the owner of it: B replies that he is not the owner but forbids A to buy the land on the ground that he himself has a desire to purchase it. A believing the representation to be true that B is not the owner buys the land from C. Can B turn round and say that he was himself the owner and that A could not set up the estoppel because B did not consent to A buying the land. I do not think such a plea would be open to B. The essence of estoppel is that the conduct of the other party is the cause of the action of the person invoking the estoppel; and if the act is the result of the reliance upon the representation, mere forbidding the act will not prevent the estoppel.
40. In the result, I agree in the order proposed by my learned brother.