1. This is an appeal against a decree dismissing the plaintiff's suit in ejectment. The plaintiff sued for possession of 51 items of land specified in the plaint schedule, on the footing that till 1917 these lands had been in his possession directly or through tenants and that in 1917 the Government took forcible possession thereof. Admittedly these lands have not been assessed to revenue, nor are they included in the pattah issued to the plaintiff. The evidence shows that over considerable portions of the suit lands a kind of grass grows which is used by the members of the public for thatching houses.
2. As regards some of the items in the plaint schedule, the learned Subordinate Judge dismissed the suit on the preliminary ground that the notice issued under Section 80 of the Code in respect of these items proceeded on a different ground of title from that now relied on. The objection to this finding of the learned Subordinate Judge has not been pressed before us. The appeal, therefore, necessarily fails on that ground so far as these items are concerned.
3. On behalf of the appellant, Mr. Govinda Menon raised a general contention that the learned Subordinate Judge was not justified in dealing with the case on the footing that the onus lay on the plaintiff to prove title and possession as if a presumption of title in favour of Government existed in the case. He relied upon certain observations in Secretary of State v. Vira Rayan 9 M 175 , and the reference to them by Sankaran Nair, J., Meenakshi Amma v. Secretary of State for India 26 M.L.J. 385 : 24 Ind. Cas. 547 : 15 M L T 247 : 1 L W 307 : (1914) M W N 521, As pointed out by their Lordships of the Judicial Committee in Kodath Ambu Nayar v. Secretary of State for India 47 M 572 : 80 Ind. Cas. 835 : A.I.R. 1924 P C 150 : 26 Bom. L R 639 : 47 M.L.J. 35 : 20 L W 49 : 35 M L T 128 : (1924) M W N 572 : 51 I A 257 : 29 C W N 365 , whatever may have been the custom in ancient India or under Muhammadan Rule, we are now concerned with the state of the law as latterly administered or declared by the legislature. In Secretary of State v. Vira Rayan 9 M 175 the learned Judges no doubt emphasise the distinction between the rule obtaining in the East Coast Districts; and the rule which was supposed to be applicable to Malabar in the earliest years of the 19th Century. At the bottom of p. 179, they recognise that there is no presumption in Malabar that forest lands are the property of the Crown; but on p. 180 they proceed to deal with the case on the alternative footing that even in Malabar the Crown may have the right to oust any person who, without its sanction, occupies waste lands which has not been appropriated for any public purpose. It must be remembered that the Government was plaintiff in that case and the learned Judges therefore say that like any other suitor the Crown suing in ejectment must succeed on proof of its own title and possession and cannot compel the defendant to prove possession for 60 years. How far the observations in Secretary of State v. Vira Rayan 9 M 175 , can be safely followed after the decision of the Privy Council in Secretary of State for India v. Chellikani Rama Rao 39 M 617 : 35 Ind. Cas 902 : 31 M.L.J. 324 : 20 C W N 1311 : (1916) 2 M W N 224 : 14 A L J 1114 : 20 M L T 435 : 4 L W 486. 18 Bom. L R 1007 : 25 C L J 69 : 43 I A 192 , may have to be considered when the question arises, and in Secretary of State for India v. Krishnayya 28 M 257 , the learned Judges emphasize the fact that the observations in Secretary of State v. Vira Rayan 9 M 175 , must be understood in the light of the facts of that case. We make these observations particularly in view of the fact that the legislature has in Madras Act III of 1905 laid down a general presumption in favour of State ownership in respect of all lands save in so far as the same are the property of one or other of the person specified in Sub-clauses (a) to (e) of Section 2, Clause 1 and Sub-clause (e) refers to a jenmi in Malabar. Even assuming for the sake of argument that the Secretary of State v. Vira Rayan 9 M 175 , can be relied on to the extent of laying down a negative proposition, namely, that there is no presumption of State Owner ship of waste lands in Malabar, it will be a matter for consideration whether Sub-clause (e) of Section 2(1) will not further require positive proof that the land in dispute belongs to a particular individual as jenmi. It is unnecessary for the purpose of this case to say more than that on this aspect of the case, because the appellant here is suing as plaintiff in an action in ejectment and it is well established that he must succeed on proof of his own title and not merely on the absence of title in the defendant. As he has framed his plaint on the footing of possession and dispossession, he must also prove that he was in possession within 12 years before suit.
4. Mr. Govinda Menon relied on the fact that in Meenakshi Amma v. Secretary of State for India 26 M.L.J. 385 : 24 Ind. Cas. 547 : 15 M L T 247 : 1 L W 307 : (1914) M W N 521, case Sankaran Nair, J., also refers to Madras Act III of 1905. But the learned Judge only makes this passing observations in his judgment, namely, that if the river bed is private property then Act III of 1905 has admittedly no application. This is of course so; but private property must mean that it is the property of a particular individual. The learned Judge was there combating the claim put forward on behalf of the Government that even when private ownership of the adjacent bank is established the English doctrine of ownership of the bed of the river being vested in the proprietors of the banks, ought not to be applied to Malabar. He was not considering the question of State ownership in the absence of proof of private ownership. On the other hand, Sadasivaier, J., in his judgment in that case draws attention to some of the questions which may have to be considered in view of the provisions of Madras Act III of 1906 Cf. the remarks on the p. 304 of the Malabar District Gazetteer (Ch. XI, 1908 Ed.). [Their Lordships proceeded to consider to the merits of the case and concluded as follows:] We see no reason to differ from the conclusion of the learned Subordinate Judge that the plaintiff has not made out either title or possession as alleged in the plaint.
5. The appeal fails and is dismissed with costs.