Spencer, J. — This suit was brought by a jenmi or landowner of South Malabar, to obtain a declaration that the suit lands forming the bed of a thodu or stream called Pulliyampulli puzha or thodu and the lands on both sides of it belong in jenm to him and that Government has no jenm right over the suit plots, and to recover the same. The District Munsiff of Ottapalam who tried the suit gave the plaintiff a decree accordingly; but the Subordinate Judge of South Malabar at Calicut who heard the appeal modified the judgment of the District Munsif and dismissed the plaintiff's claim in respect the items now in dispute with costs.

The items now in dispute are items 1 to 4 forming the old bed of the stream and items 6 to 8 which are part of the present bed. Item 5 is not subject to appeal. The 1st defendant in the suit is the Secretary of State for India in Council. This defendant adduced a large quantity of documentary evidence, to show that from 1855 till 1880, the Government laid claim to the beds of all rivers in Palghat and was levying a jenma bhogam on persons who occupied the beds, and in some cases, was selling the jenm right, to the occupiers. In a similar case (O. S. 330 of 1892) the appeal in which was heard by Mr. Benson, (afterwards, Sir Ralph Benson, a puisne Judge of this Court) similar evidence was adduced of the Government having granted Cowles and collected jenma bhogham, for river accretions in certain rivers in the Palghat Taluq, between 1859 and 1892 and that between 1863 and 1895 the Government sold jenm titles in a number of such accretions in the Palghat Taluk, and private persons purchased titles from Government in such cases. The District Judge’s judgment was not brought up to the High Court in Second Appeal; but as it stands, it is certainly a recognition by a judicial tribunal of the existence of the custom which is sought to be proved in the present case. The Subordinate Judge was evidently influenced by this judgment, Ex. DL, and relying on the evidence as to the assertion of title by Government to river-beds in Palghat Taluk, he found that a local usage prevailed in that Taluq, by which non-navigable and non-tidal rivers belonged to Government in jenm. He qualified this finding, by saying that it is not supported by the general law of the Presidency or by any general custom prevailing in the Malabar District.

Now the proof of custom arising out of the facts found in this case appears to me to be defective in the following particulars:—

(a) It is not a custom or usage of great antiquity, seeing that it is not proved to have existed before 1855. In this connection see the observations of Sankaran Nair, J., in Meenakshi Amma v. Secretary of State for India(1).

(b) Its value is diminished by the fact that in 1885 when a question arose about the levying of jenma bhogam in several parts of the District, notably Walluvanad Taluq, the then Collector Mr. Logan, decided not to levy jenma bhogam for the reason that in non-navigable and non-tidal rivers the accretions belonged to riparian landlords (see Ex. FF). This decision by the Collector was taken in consequence of a reference to the Government Pleader whose reply has been filed as Ex. DCC-XII, in which he expressed his opinion that in dealing with the respective rights of Government and of private persons to accretions in rivers, the general principle of English Law might be applied as a guide, except where a well established local usage to the contrary was proved.

(c) As regards Palghat Taluq, the custom or usage found by the Subordinate Judge to exist has not been traced to any definite local origin.

Now, if the 1st defendant who had to open the case has failed to prove the existence of a special custom prevailing in Palghat Taluk, what then is the position of the plaintiff? He is admittedly a riparian owner—see the statement of the Tahsildar of Palghat, D. W. 1, who stated that lands on both sides of the thodu site belonged to the plaintiff and that Government has no jenm right to the bed of the present site of the stream. In the full Bench case, Vasireddi Venkata Lakshmi Narasamma…Plaintiff v. Secretary Of State…., the question referred to the Full Bench was whether a grantee from Government who holds lands bounded by a non-navigable river has a right, extending to half the bed of the river. It was held that there was a presumption in his favour and that the onus of showing that the grant did not cover the bed ad midium filum aquae, lay on the grantor. That was a case of grant from Government of the lands adjoining a non-navigable river or stream. The importance of it is that it recognises the principle of ownership of the river-bed, usuque ad medium filum aquae residing in a riparian owner as part of the common law of India. No doubt this presumption can be rebutted and in some cases, the amount of evidence required to rebut it is very slight. But in this case, if the 1st defendant has failed to establish the local usage set up by him, it cannot be said that plaintiff's title as riparian owner is in any way impaired. The Madras Land Encroachment Act III of 1905 declares that “all public roads, streets and the beds of the sea and rivers and streams and all lands wherever situated, save in so far as the same are the property………of any person holding under ryotwari tenure, including that of jenmi in Malabar are the property of Government. But as pointed out in the Full Bench decision in Vasireddi Venkata Lakshmi Narasamma…Plaintiff v. Secretary Of State…. this Act does not affect preexisting rights. A similar view was taken in another Full Bench case, Chinnappan Chetty v. The Secretary of State for India(2), in which Sir Abdur Rahim J., also observed the right of Government of regulating the distribution of the water of a river or stream does not supersede the rights of riparian proprietors and does not necessarily imply the ownership of the bed by the Government.

Having thus expressed my opinion that the plaintiff has prima facie the rights of a riparian owner in the plots now in suit, it remains to say a few words on the decisions cited at the hearing of the Second Appeal. It was held so long ago as 1880, in Secretary of State v. Vira Rayan that in Malabar there was no presumption that forest lands were the property of Government, and in Secretary of State for India v. Kadiri Kuttti the English law of Riparian Ownership was applied to accretions caused by Alluvion in rivers, so far as they were not excluded by enactment or legal usage. In another case (Secretory of State v. Ashtamurthi(3) in the same Vol. 89) the rights of jenmies to uncultivated waste lands in their jenms were recognised and it was held that their rights did not pass in consequence of the sale of such land by Government, for arrears of revenue, due from the occupants. In Meenakshi Amma v. Secretary of State for India(4) Sankaran Nair, J., laid down that in Malabar the English Law as to ownership in beds of natural streams, namely that they rest in the adjoining proprietor and not in the Crown is the Law of the locality. In his judgment he referred to the judgment of the District Judge Mr. Benson, Ex. DL, and expressed doubts whether that decision which supported a local custom in derogation of the general law would be followed in future. Sadasiva Aiyar, J., who sat with him, dissented from his conclusions on the case and also expressed a doubt whether the beds of natural streams and the sites of public paths even in Malabar did not belong to Government as a rule. I have already referred to the judgment of Mr. Benson, as District Judge, Ex. DL on appeal from the judgment of Kelu Eradi, Listrict Munsif of Palghat (Ex. D XLIX) which it confirmed, on the evidence before the Court. Another judgment was passed in 1908 by Mr. Ananthan Nair, Subordinate Judge of Calicut Ex, DL-7., in which he dealt with riparian ownership to the bed of streams in the Ernad taluk. Differing from the Lower Court, he decided that the land in suit was the jenm of Government, giving as his reasons that there was a presumption in favour of Government, that the beds of natural streams belong to them. He defined “natural stream” as “one which has existed from time immemorial not an artificial stream coming into existence through the intervention of human agency”. If his opinion were correct no one in Malabar would have a right to a spring rising in his own garden or field. The Subordinate Judge in the present case drew the analogy from the roads and the beds of navigable rivers, that such property could not have belonged to private owners, as it was public policy that Government should keep roads and navigable rivers, under control in the interests of the public. That analogy which applies to streams and roads which are public thoroughfares, cannot be followed in the case of streams, which are not navigable, as there is no public interest, in such, except in so far as they form part of an irrigation system.

Mr. Ramachandra Aiyar for the appellant took a preliminary objection in this case, that the Government did not plead in their written statement the existence of local usage in the Palghat Taluk, vesting the ownership of beds of non-navigable and non-tidal rivers in the Government and therefore the Lower Court should not have admitted the evidence as to the peculiar usage in the Palghat Taluk only, seeing that issue 4 in the suit, was “whether the stream in question belongs in jenmam to the plaintiff or to the 1st defendant either by law or custom of Malabar”. Now Palghat Taluk is a unit in the Malabar District and the whole includes the part. It has already been held by a Bench of this Court that the plaintiff was not prejudiced, in consequence of the manner in which this issue was framed upon the defendants pleadings, as he failed to show that he would have adduced different evidence, if he had known that the custom set up by the 1st defendant related to Palghat Taluk only. As observed in Mohidin v. Shivlingappa if a party fails to prove all that he wishes to prove there is no reason for denying him the right, which he succeeds in esta. Wishing. I think that there is no substance in this objection and that it should be dismissed. But as the plaintiff has succeeded on the main issue, it is unnecessary to deal with the authorities quoted in support of this preliminary objection. As my learned brother agrees with me, we allow the Second Appeal and reversing the Subordinate Judge's judgment restore that of the District Munsif, with costs here and in the Lower Appellate Court. The memorandum of objections is dismissed with costs.

Krishnan, J.—This Second Appeal raises the question of ownership of river-bed lands in non-tidal and non-navigable rivers between the Government and the private Jenmi, in the Palghat Taluk of South Malabar.

There were 8 items in suit Of these items 5 have been found to be the plaintiff's private jenm and to have no connection with the river; there is no appeal from the decree of the Lower Appellate Court in plaintiff's favour, regarding it. Items 1 to 4 formed the bed of the ‘Puliampatti thodu’ before it recently changed its course and items 6 to 8 form part of its present bed. The stream ilself is a small one, with apparently very little water in it in the hot season. The plaintiff's allegation that it was an artificial water-course, dug on his own lands was not proved. It is found to be a natural stream and from its very description it is clear that it is neither tidal nor navigable.

The District Munsif held, that the ownership of all the lands was in the plaintiff; but on appeal the Subordinate Judge has held that except as to S. No. 252B, which is said to be part of items 1 and 2, the Government is the owner of the rest of the lands. The plaintiff has appealed to us and claims all the lands to be his and the Government has filed a memorandum of objections, claiming S. No. 252B for themselves.

Taking items 5 to 8 first, it is found by the Lower Appellate Court, and it is not disputed, that they were lands belonging in jenm to the plaintiff, before they were submerged by the recent change in the course of the river. It is clear law that a person does not lose his title to his lands by mere submersion under water, so long as the land is indentifiable. This view was laid down by the Privy Council so early as in the case in Rajah Leelanund Singh v. Rajah Mohender Narain Singh and has since been consistently followed. Non-resistance to vis major, such as a flood which causes the change of a river's course cannot be treated as any evidence of acquiescence, or of abandonment of rights, by plaintiff, as the Subordinate Judge remarks. In fact the Government Pleader conceded, and rightly so, that the decree of the Subordinate Judge regarding these lands was not supportable. Plaintiff must be given a decree for them, as prayed for. The question of water rights in the river is not before us and our decree should not be taken to have affected it in any way.

Taking next S. No. 252 B, about which Government has filed a memorandum of objections, it has been found by the Lower Appellate Court that plaintiff has proved his title to that land, before it was submerged by the river, when it changed its course on a former occasion. The river is said to have changed course and this finding was not attacked before us; and accepting it, it follows from the principle above stated, that the land belongs to the plaintiff. The only objection by the learned Government Pleader to this part of the case was that the plaintiff's original ownership of the land was not set up in the plaint, and that he should not have been allowed to make out a new case afterwards. I consider that paragraph 3, cls. (1) and (3) of the plaint do state that the lands over which the river originally flowed was plaintiff's jenmam.

The fact that that statement was coupled with an assertion that

the water-course itself was one dug by the parties does not affect that statement. The decree of the Subordinate Judge regarding this item must therefore be confirmed.

Finally, we have items 1 to 4 excluding S. No. 252 B to consider. As regards these lands, the plaintiff failed to prove his title to them, before the submersion. But there is no allegation or proof that they were the jenmam of any other landlord. Plaintiff is a very rich jenmi owning extensive lands in this neighbourhood and his learned vakil asserts that all the land of this locality including these items are his jenm. But we must accept the finding that he is not proved to have been the jenmi of these lands before submersion, in Second Appeal, as it is one of fact. It is then argued for him that as the admitted riparian proprietor of the lands on both banks of the river adjoining the lands, items 1 to 4, when the river ran over them he is entitled to them under the rule that land in the bed of a non-navigable river belongs to the adjacent riparian proprietor, upto the middle of the stream, “ad medium filum aquae” as it is usually put. If this rule of law applied, he must be held to have been the owner of the whole bed as he claims, as admittedly he was the riparian proprietor of the lands on both banks. The claim of the Government to these lands cannot be supported, by anything in the Madras Act III of 1905, as Sect. 2 of that Act expressly reserves, as pointed out in the Full Bench case in Chinnappan Chetty v. Secretary of State for India, the prior rights of parties including those of a jenmi in Malabar.

The learned Government Pleader has however put forward two answers to the plaintiff's contention. He first contended that the rule in question did not apply to Malabar at all, and secondly that in any case, its applicability was excluded in the present case, by a special custom, having the force of law, existing in the Palghat Taluk, where these lands are situated, by which all river accretions and river-bed lands there vested in the Crown.

For the 1st part of the argument, he relied mainly on the observations of Sadasiva Ayyar, J., in the case in Meenakshi Amma v. Secretary of State for India. But as the learned Judges, who took part in that case, expressed different opinions on the point, that case cannot be treated as of much authority on it. The question of riparian right to the bed of a non-navigable river has since recently been considered by a Full Bench of this Court in Vasireddi Venkata Lakshmi Narasamma…Plaintiff v. Secretary Of State…. and the ruling there is distinctly in favour of the plaintiff's contention. Though the actual decision was on the construction of a grant, the learned Chief Justice who delivered the judgment of the Full Bench clearly adopts the view that the rule in question is a part of the common law of India and that there is a presumption in favour of its applicability in general. The presumption must be rebutted by the party alleging the contrary. After that decision it is unnecessary to consider the previous decisions on the point in detail, as they are all referred to in it. I, therefore, agree with my learned brother that the plaintiff must be held to be prima facie entitled to these lands, unless the custom set up is proved.

It was also suggested by the learned Government Pleader that Malabar being a ryotwari tract, with periodical re-settlement of land tax, the Government must be taken to be the proprietor of the soil, as in other ryotwari tracts and that the rule in question should therefore be held to apply rather in their favour, as the real riparian proprietors than against them. This suggestion of proprietorship in Government is opposed to what has been laid down, in decided cases regarding jenmi's rights in Malabar. It has been recognised that Malabar jenmies are undoubtedly proprietors of the soil. This question is dealt with, at length, by Sankaran Nair, J., in the case in Meenakshi Amma v. Secretary of State for India, already referred to above and he has collected all the authorities there and has referred to the leading case on the point, in Secretary of State for India v. Vira Rayan. It may be remarked that Sadasiva Aiyar, J., in his dissenting judgment in the same case does not controvert the proposition that “Malabar is a land of private proprietors”. The same view was stated by Parker, J., in Secretary of State for India v. Ashtamurthi. In a later case in Secretary of State v. Kadirikutti, the question arose with reference to the ownership of a river accretion itself, in a Malabar river. Though the case was decided in favour of the Crown, it was on the ground that the river was navigable and tidal at the spot and the accretion was a sudden one. The observations in this case show clearly that if the river had been non-tidal or non-navigable, their Lordships would have decided against the Crown and in favour of private ownership. It may be said that by this case, the general proposition that there is no presumption in Malabar that waste lands are the property of the Government has been abrogated to this extent that “land covered by water of the sea, or of a tidal river is not within the category of waste lands,” to which the rule of private ownership applied (see page 375), but no further. The learned Government Pleader's argument based on the alleged proprietorship of the soil in the Government must therefore be disallowed.

It remains to consider his last contention, based on the alleged existence of a special custom in the Palghat Taluk. The District Munsif has found against the custom; but the Subordinate Judge has supported it. The question whether the facts proved and found satisfy the requirements of law to establish a custom is a question of law and one which we can and must and consider in Second Appeal. See the Observations of the Privy Council in Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi and the ruling of this court in Kumarappa Reddi…(Plaintiff) v. Manavala Goundan…(Defendant) .*(5). We have been taken by the learned Pleaders on both sides, through the evidence regarding this alleged special custom.

Before however considering that evidence, it must be pointed out that the Government in their written statement did not really set up any special custom in the Palghat Taluq, but set up a general custom as prevailing throughout Malabar. The attempt of the Subordinate Judge to make out from the existence of a comma, after the word, I “local usage” in paragraph 6 of the written statement that such a custom confined to the Palghat Taluk was set up seems to me to be futile.

In fact the learned Government Pleader did not attempt to support his view. The form of issue 4 removes all doubt in the matter and shows what the parties intended by the pleadings. Mr. Ramachandra An ar for the appellant argued that the Government should not have been allowed to change their case in appeal to one of a special custom in Palghat. It is however open to a party who sets up a territorial custom to prove it with reference to a smaller area included in the larger area, in which it was alleged to exist when he is unable to prove it for the whole extent. See Mohidin v. Shivlingappa. However, if on the evidence on record I was of opinion that a prima facie case in support of the smaller custom had been made out by the defendant, I should have been inclined to frame a definite issue about that custom and remitted it for trial, to give an opportunity to the plaintiff to adduce further evidence, for the reasons stated in his affidavit filed in this Court. In the view I am taking it is not necessary to pursue the matter further.

I should now consider the evidence which has been put forward to support the custom. It has been fairly summarised by both the Courts. We start with Ex. 47 (printed on page 44 of the paper book) where the Government for the first time in 1855 seemed to have asserted their right to a river accretion. They were issuing similar cowles till 1833, when the policy of selling the jenm right in such lands seems to have been adopted. Till 1881 no one contested the Government's right but in that year Yakkanath Kaimal claimed a river accretion as belonging to him. He does not however seem to have pursued the matter, beyond putting a petition to the Collector which was rejected. The same policy was continued till 1884. At this stage comes in an important document Ex. FF., which seems to indicate a change in the policy of the Government. It is an order of Mr. Logan, the Collector of Malabar, based on the opinion of the then Government Pleader which was, filed in the appellate Court as Ex. DCCXII, recognising that in rivers in Malabar which are neither navigable nor, tidal the river accretions belonged to the riparian landlord and not to the Government. This order seems to have been circulated to at the Taluks in Malabar. No doubt the Government Pleader's opinion recognised that the rule would not apply where there is a special custom to the contrary. But it is significant that there is no evidence of any levy of jenmabhogam, even in the Palghat Taluk, between 1885 and 1888, by which time Mr. Logan had retired and left Malabar. In 1888 the old practice was re-started but this time the claim of the Government was challenged in a Court of law. The decision of both the District Munsif and of the District Judge, Exs. DLXI, and DL a were however in favor of the Government, and recognised the alleged custom as a valid one. This case was not brought up to the High Court. Nevertheless the Government seem to have treated jt as settling the question in their favour and to have continued the practice up to date of claiming river accretions as belonging to them.

That is how the evidence stands. To prove the existence of a valid custom having the force of law, it is necessary to establish (1) that it was ancient, (2) that it was continued and acquiesced in, (3) and that it is reasonable. If any of these conditions fails the custom cannot be upheld as valid. The question for consideration is whether these requisites have been complied with.

Mr. Ramachandra Ayyar has drawn our attention to the case in Secretary of State for India v. Ashtamurthi which is a very important and instructive case on this question, as it dealt with a similar claim by Government with reference to waste lands in Malabar. Mr. Justice Parker in an elaborate judgment has traced the history of the way in which the Government began to issue cowles in Malabar, for cultivation of waste lands, and gives the various steps adopted in the course of their policy of claiming the jenmi right in such lands. There is no reason to think and it is not likely that Palghat Taluk was treated differently from the other Taluks, or river bed lands from other waste lands. Though the case itself arose in the Ernad Taluk, the judgment is perfectly general and applies to all Malabar. Reading that judgment, it is a fair inference to hold that Ex. 47 must have been issued in pursuance of the same policy that prevailed elsewhere. It follows that Ex. 47 probably represents the first assertion of title by Government to river-bed lands in the Taluk and that there is no scope for any inference or presumption that the same practice had existed previously. That judgment shows that the claim to waste lands was not based on any anterior custom but was made as a matter of policy. In fact if there was any antecedent practice in the matter before us, one may fairly expect Government would have been in a position to adduce evidence, about it. They have not done so. There is no evidence that such a custom existed during the previous periods of Hindu or Mahomadan domination in Malabar. The reference by the Subordinate Judge to the statement in Keralolpathi, which gives the traditions of Malabar, is mistaken as the word is not (attu thurithikal) as the Subordinate Judge thinks, but (attu thurithika) which means, as the District Munsif says, to regulate (the course of) the river. It has no reference to any islands, as supposed by the Subordinate Judge.

In this state of evidence, can we say that the custom has been proved to be sufficiently ancient, to be recognised, as the law of the land? A similar question was considered in Secretary of State for India v. Ashtamurthi, above referred to, with reference to waste lands generally and answered in the negative. I agree with my learned brother that our answer in the present case must also be in the negative, more especially, because, as shown above, the practice for the last 60 years or so, relied on, has not been uniform or continuous, during the whole period. I think the Munsif was right in attaching much importance to Ex. FF. It expressed the deliberate opinion of a very experienced Collector of Malabar, who, it may be observed, is the author of the Malabar Manual and I have no doubt that the practice of claiming river-beds ceased for a time even in Palghat Taluk on account of it. I am unable to agree with the Subordinate Judge that this document should be kept out of consideration, because it arose with reference to another Taluk viz., Walluvanad. Mr. Logan did not evidently treat it as applying only to that Taluq and it is significant to remember in this connection that even in this case in their pleadings the Government made no distinction between the Palghat and other Taluks. It seems to me that the Munsif was right in holding that Ex. FF showed a break in the continuity of the practice.

Furthermore it has been pointed out to us that Ex. XLVII, itself reserves ‘the right if any, of any persons and the boghams that may arise therefrom,’ and says that these ‘would be according to local custom.’ What the exact meaning of this reservation is and what the local custom referred to is, are not explained. It may be that Government did not mean to interfere under Ex. XLVII with the rights of private jenmies as Mr. Ramachandra Aiyar contends His suggestion is supported by what appears in Secretary of State for India v. Ashtamurthi, to have been the policy of the Government about the date of that document. If this is correct, Ex. XLVII, can hardly be relied on, in proof of a custom of exclusive jenm right in the Government. It is also pointed out that there is an indication in Ex. CCXCIV that Chennath Nair, owned some river-bed lands, but without knowing more about the matter, I am not able to attach much weight to it.

The practice was also challenged by private jenmies more than once, as stated above, though they failed each time. It must therefore be held that the second requisite above stated for a valid custom has also not been properly complied with.

Great reliance has been placed on the judgment of the District Judgs Ex. DL, in favour of the Government and it is claimed that the custom has been judicially recognised by it and should be upheld by us. That judgment cannot be treated as an authoritative recognition of the custom settling its validity, as it is not that of the High Court. It can only be looked upon as an instance, where the Government asserted its title successfully in a Court of Law. No doubt it is entitled to weight but it is not conclusive. As pointed out by the District Munsif, Ex. FF was not before the Court in that case and thus it loses its weight to a greater extent.

Tn spite of that judgment, it is clearly open to us to consider the validity of the custom set upon the evidence before us. I agree with my learned brother, whose judgment I have had the advantage of reading, that a custom or local usage in the Palghat Taluk as alleged has not been made out.

The result is, items 1 to 4 should also be wholly decreed to the plaintiff. I therefore agree to the order proposed by my learned brother.

K. V. S.Appeal allowed.