Charles Gordon Spencer, Officiating C.J.
1. The plaintiff is the Rajah of Pithapuram. The defendant is the Collector of Godavari representing the Government. The subject of this suit are certain puntas used as paths by men and cattle in the village of Mummidivarappadu which forms part of the Palivela estate acquired by purchase and testamentary disposition by the plaintiff's predecessors. No members of the village community that use these paths in exercise of their communal rights have been made parties to the suit. The inclusion of the Government as a party can only be justified on one of three theories, (1) that the pathways were excluded from the Permanent Settlement and belong to the Government, (2) that the Government is the custodian of the communal rights of the public in respect of these paths, vide Venkatarama Sivan v. Secretary of State for India : (1919)36MLJ203 and (3) that the Government has unauthorisedly levied penal assessment under Act III of 1905.
2. The plaintiff (appellant) does not admit the first theory as it would be fatal to his suit to obtain a declaration of title.
3. As regards the third theory, the assessment was levied from the occupants in 1914 according to the allegation in the plaint. This circumstance will not give a right of action to the plaintiff who did not pay anything. Moreover the limitation period for persons aggrieved by proceedings taken under that Act is six months, under Section 14 and that period was long past when this suit was filed in 1918. It came out in the evidence that the plaintiff's Dewan had been served with a preliminary notice under Section 7 to show cause why he should not be made to pay prohibitory assessment under Section 5 or be summarily evicted under Section 6, but it has been held in Secretary of State v. Assan : (1916)30MLJ255 by a Full Bench that notices under Section 7 do not give rise to a cause' of action.
4. It remains to be considered whether a declaration of title can be given to the plaintiff and an injunction issued restraining the Government from interfering in any manner with his possession and enjoyment. The plaintiff admitted in his plaint that the suit puntas were once dedicated to the use of the public as a highway. The letting out by him of the soil for cultivation must necessarily interfere with the use of the surface for a public highway. He has failed to prove that the right which the public got by dedication of these puntas for use as a means of communication has ceased owing to disuse, or otherwise. The Subordinate Judge has found on issue No. 2 that the plaintiff has not acquired any prescriptive right over them and we have been shown no reason to come to a different conclusion.
5. In the course of the arguments on the appeal, the appellant's Vakil admitted that he did not dispute the right of way of the villagers over the paths. He styled it an easement right, but the right of the public to the enjoyment of the whole width of land which has been set apart from time immemorial for use as a public way stands upon a higher footing than a mere easement over property belonging to another. At any rate whatever right the public admittedly had in these paths has not been shown to have been lost, and, therefore, the plaintiff's appeal, like his ill-conceived suit, must fair and be dismissed with costs.
Srinivasa Aiyangar, J.
6. The plaintiff (appellant) is the Rajah of Pithapuram. The defendant (respondent) is the Secretary of State for India in Council represented by the District Collector of Godavari. The plaintiff claiming to be the zemindar of a village called Mummidivarappadu included in the estate of Palivela, filed this suit for a declaration of ownership and for the recovery of possession and for injunction in respect of certain puntas as they are called or lands used as cattle-paths in the village. The Subordinate Judge who tried the suit dismissed it with costs. And hence this appeal.
7. The plaintiff states that the village in question was acquired by his father under the will of his paternal aunt. I may remark to begin with that the case has been conducted in a very strange manner on both sides in the Court below. The plaintiff has not produced a scrap of paper, either the sanad in respect of the suit village or any other title-deed in respect thereof nor has any such document been produced on the side of the Government for the defence. But both sides have gone to trial on the assumption that the suit village belongs to the plaintiff and was a zemin village in respect whereof a sanad in the ordinary form was, or must have been, issued in the early part of the last century. The plaintiff's case is briefly this: These puntas or cattle-paths were dedicated for public use by the plaintiff's predecessors. Subsequently about the year 1883 the plaintiffs predecessore unlawfully entered upon these puntas and diverting them from their use as highways let them to agricultural tenants and doing so for over the statutory period succeeded in reducing them to their own private ownership. It is alleged that in the year 1914 after the plaintiff had acquired an absolute right in respect of the suit land the Government took proceedings under the Land Encroachment Act III of 1905, against the tenants in occupation let in by the plaintiff, and that as the lands did not belong to the Government their action under the Act was ultra vires. The plaintiff in these circumstances prays for a declaration that he is the owner of the puntas, and for such possession of the lands as may be necessary, and for an injunction against the defendant from interfering in any manner with the possession and enjoyment of the puntas by the plaintiff. It is clear from the Bhoob and accounts relating to faslis even prior to the Permanent Settlement that the suit lands were used as puntas or cattle-paths even then. The plaintiff has in his plaint set up an affirmative case of dedication of these lands as highways by his predecessors-in-interest. That case has not been made out in the least. It is remarkable that the time when or about which such dedication was made is not mentioned in the plaint or made out in the case. The evidence in the case does not help us to determine whether the zemin was, by the sanad granted by the Government, merely confirmed to the predecessor-in-interest of the plain tiff or was really in the nature of a fresh grant. In the present state of the record, we are only left to speculation as to what really happened. However that may be, it is clear that the plaintiff has riot made out the case set up by him of a dedication by his predecessors of the suit lands as puntas or highways because an act of dedication might imply a capacity to dedicate and involve ownership. 'All that is, therefore, clear is that in or' about the year 1802, when the Permanent Settlement was made the suit lands were puntas. The plaintiff's alternative case as we must take it to be, is, that, at the Permanent Settlement, when the zemimdari was granted to his predecessor-in-interest, these puntas were also included in the grant by the Government. It is true that these punta lands are within the ambit of the zemindari and would have passed to the zemindar undoubtedly, under the grant if not reserved by the Government and if there was not anything in the nature of the, lands themselves by which they became excluded from the grant. It has been strenuously argued on behalf of the Secretary of State by the learned Government Pleader that these lands should be held to be lakhiraj lands within the meaning, of Section 4 of Regulation XXV of 1802. The lower Court has found against this contention. I think the lower Court was right. The true meaning' of lakhiraj lands would appear to be lands capable of being a source of revenue but granted away free of revenue or on favourable rent. The learned Government Pleader pressed on us that according to the true construction of the words' in Section 4 of the said Regulation, public roads should be included in the expression 'lands exempt from public revenue.' The expression 'exempt from public revenue' would in the circumstance itself seem to imply the possiblity of the lands yielding revenue but for the exemption. I am, therefore, of opinion that the contention that these lands should be held to be lakhiraj cannot be supported, As the plaintiff has not proved that the grant to his predecessor was only in the nature of confirmation, we must take it that it was really in the nature of an original grant. The position was then this: So far as these puntas were concerned, having been dedicated to the public as highways, the Government at the time of the grant held them in trust for the community and it must be an unwarranted assumption to suppose that in violation of such trust the Government granted them away to the plaintiff's predecessor. I am not prepared to make any such assumption in favour of the plaintiff. This is against all principle. One of two things, therefore, must have happened, either the Government did not include these puntas in the grant because they were roads and lands intended not for agricultural purposes but only for general communal purposes, or else they made over the trust to the zemindar for the purpose of maintaining the trust in favour of the community. If there had been no grant at all to the plaintiff's predecessor, it follows that the plaintiff's suit is not maintainable. If, on the other hand, the plaintiff's predecessor became a trustee in respect of the suit land for the purposes of their being maintained as highways for the benefit of the public, it is inconceivable how a trustee could by adverse possession have reduced the trust property to private ownership. The learned Subordinate Judge has found that the plaintiff has not established the title by adverse possession against the Government and we agree with him. The fact appears to have been that prompted by avidity the predecessors of the present plaintiff taking advantage of their power and influence as zemindars and the helplessness of the ryots entered upon these public paths and let them to tenants in order to make money. Even assuming that the plaintiff was in law in a position to acquire by adverse possession a title to these lands, I am far from satisfied that the evidence on the record shows any such continuous adverse possession of all the lands in question for such period as would enable the plaintiff to acquire such title. Though prayers regarding possession and in unction are included in the plaint, I cannot but regard the suit in the main as a declaratory suit. The plaintiff seeks a declaration that by adverse possession he has become, the private owner of these lands. Apart from the Government represented by the defendant, the parties against whom the plaintiff's possession should have been adverse for the purpose of enabling him to acquire such title by prescription are the body of the villagers. They are not parties to the suit, and I fail to see how any such declaration could be made in a suit to which they are not parties. It has been argued by the learned Government Pleader that, under Section 49 of the Local Boards Act, these puntas became vested in the Local Boards. and that under the provisions of Section 2(2) of Act III' of 1905, properties vested in the Local Boards are deemed to be properties of 'the Government for the purposes of the said latter Act. There are difficulties in the way of accepting this contention. It is true that all public roads have been vested by the said Section 49 in the District Board. But that section speaks of the vesting only of the public roads and not of all roads and the expression 'public roads' is defined in Section 3(xxiii) of Act V of 1884 as a road already vested in some local body. There is no evidence whatever on which it may be held that these puntas were ever vested in any local body. The applicability of the sections of the Land Encroachment Act depending as it does on the vesting of the lands as public roads in the District Boards under the provisions of Section 49 of the Act, the right of the Government to take proceedings under the Land Encroachment' Act is by no means clear. However that may be the plaintiff not having shown that he is or has become the absolute owner of the suit lands, I must take it that the very basis of his suit fails and the dismissal of the suit by the lower Court was right. It has been suggested in the course of the argument by the learned' Vakih for the appellant that a declaration might be made in favour of the plaintiff at any rate with regard to the sub-soil of these lands leaving it open-whether or not the right-of highway still continues in' the body of the villagers. No question has ever arisen with regard to the sub-soil of these lands in connection with any of the transactions or proceedings that is to this suit. To the plaintiff, who merely required to be able to let the surface soil to his own tenants for the purpose of making money, the right he was interested in securing-and haying declared, was the right only to the surface soil. 1 cannot, therefore, regard, except with suspicion, a request by the appellant's Vakil that at any rate the right to the. Sub-soil should be declared in this action. Even if I should' be inclined to do so, for the reason already set out, I cannot say that he has sufficiently established his right to the sub-soil so as to entitle him to any such declaration.
8. The plaintiffs suit was, therefore, rightly dismissed.
9. The appeal fails and is dismissed with costs.