Sankaran Nair:— The question that arises for decision in Second Appeal has reference to the respective rights of the Government and the mirasidars in the waste lands, including house-sites, in a mirasi village.
In the old village accounts and in the discussions on the question these lands are referred to under certain designations:—
Poramboke.— includes the nattam cheri, i.e, the residential quarters of the village, rivers, tanks, water-courses, waters, roads, burning places.
Tarisu.—Waste is of two kinds; seykal-karambu—cultivable waste; anadi-karambu—immemorial waste.
The suit was brought by the plaintiffs who claim as mirasidara owning two shares out of three in a village in the Chingleput district. They say that the land in dispute, which is a homestead, is their ancestral property held under them by the thirteenth defendant. They allege trespass on their land and seek to recover possession of it. On the allegations made by the defendants, persons is possession, that they hold under Government, the Secretary of State was made the fifteenth defendant. In the written statement the Government admitted that the land forms part of the gramanattam, but contended that neither the plaintiffs nor their predecessors, who are the mirasidara of the village, have any proprietary right to the gramanattam and other poramboke lands in Government villages and that they vest in the Government. On this the issue was framed, “whether the mirasidara of the plaint village have proprietary right in village-sites and other poramboke lands?” Both the Lower Courts have dismissed the plaintiffs' suit. This is an appeal from that decision. The Lower Courts were of opinion that the claims of the mirasidara to waste lands have been finally negatived and the Government's title established by the judgments in Sivantha Naicken v. Nattu Ranga Chari(1) and The Secretary of State for India v. M. Krishnayya(2) and they accordingly considered only the question whether the plaintiffs have established a title by prescription against Government”. They found the following facts proved. The plaintiffs purchased their mirasi property under Exhibit J, dated the 28th May, 1891, from a previous nirasidar. The title-deed conveyed to them the entire property in the land conveyed. It conveyed in terms the village-site, cheri site, as well, as wells tank, pind, river, channel, waste lands and all other rights and privileges pertaining thereto. Their predecessor purchased the property under Exhibit H (1887), which also conveyed all the waste lands, etc. Exhibit H makes reference to a deed of partition of 1853 and a prior document of July 1822 as title-deeds. The deed of partition was produced in Court, but as it was not produced at the proper time the Judges rejected it. The lower Courts attached no weight to Exhibits H and J, as the Government was not a party to them. It is also proved that in 1894 the land was actually cultivated under the plaintiffs. The lower Courts did not attach any weight to this circumstance, as at that time there was an application before the Collector by a Christian Missionary for lands in the mirasi village and this cultivation was treated simply as an attempt to create evidence of enjoyment. But this fact does not deprive it of its value and shows that the plaintiffs did exercise an act of possession at the time when their title was disputed. Again, in 1902 the plaintiffs let a tenant (plaintiffs' witness No. 3) into possession. This was after the grant to the defendants by the Government. A thatched but was put up for supplying liquor to the pariahs residing there. Exhibits E and G, no doubt, cannot be treated as evidence of title in these circumstances, but these seem to be certainly evidence of possession. It is also found that the plaintiffs out branches of trees. This also is explained on the ground that it does not amount to an act of ownership but that it is a common privilege of mirasidars. There is no counter evidence of possession or of title. Now, it seems clear on these facts that, though they might not be sufficient to support a title by prescription only, if the mirasidars are the owners of the lands including the waste in their village, they have proved such possession as the nature of the land admits of and prima facic therefore they, would be entitled to recover.
But it is argued that the mirasidars of a village have no right in waste lands or in the homestead, nattams or cheris included in the limits of the village. They might have certain privileges, but such privileges are put an end to when the Government interferes with the possession of such land. This is the plea that is upheld by the Lower Courts and that is the question which arises for consideration in second appeal. The right that is claimed is on behalf of the village community, that is, of the mirasidars, as a body, each mirasidar having a share in the village. In determining this question, it is first necessary to bear in mind that a village was not a mere administrative unit.
We have now got ample information about the village community in Mr. Huddlestone's Mirasi Papers (an abstract of it is given by Mr. Baden Powell in his Indian Village Community, pages 361 to 379), in the correspondence relating to the revision of village establishments, both official publications and in the volumes of South Indian Inscriptions with reports also being published by Government.
The following facts appear so far as the Tamil land is concerned. The country was divided into villages. A village, geographically considered, was a tract of country comprising some hundreds or thousands of acres of areble and waste lands; politically viewed, it resembled a corporation or township. It had its nattam, plots of lands set apart for house-sites for caste Hindus, cheris for the labouring classes and also portions set apart for other castes. It had its own officers or servants to collect the revenue payable to Government, to repress crime, to guard the crops, to preserve the boundaries and the superintendent of the tanks and water-courses to distribute the water therefrom for the purposes of agriculture. “Under this simple form of Municipal Government the inhabitants of the country have lived from time immemorial. The boundaries of the villages have been seldom altered and, though the villages themselves have been sometimes injured and even desolated by war, famine and disease, the same name, the same limits, the same interests, the same families have continued for ages. The inhabitants give themselves no trouble about the breaking up and division of kingdoms, whole villages remain entire, they care not to what power it is transferred or to what sovereign it devolves; its internal economy remains unchanged.” This description, taken from the Fifth Report of the Committee of the House of Commons, has become classic and is a true description of a typical village in Southern India when the Est India Company acquired it.
The ancient deeds of transfer of which we have copies, fully bear out, like Exhibits H and J, the title of the members of the Village community or mirasidars to the lands in the village. Many documents are published in the Papers on the Mirasi Right with Notes, by Mr. Bayley and Mr. Huddlestone. In one deed, copy of which is printed at page 263, “the uncultivated land within the limits of our village” is granted by the mirasidars for being brought under cultivation. Manai, which means house-site or nattam, kollai, which means homestead and which is a small enclosure near the house, paracheri or the suburbs set apart for pariahs, pizhakkadai (the backyard immediately adjoining the house), mayadai and maravadai, meaning all kinds of game and wood land, all these are expressly granted. The notes by the experienced Revenue Officer who edited those papers and explained these terms are very instructive—see pages 262 to 342. Some of these were executed shortly before the East India Company acquired the Government of the country but others were later. The deeds in the book on Mirasi Papers are confined to Madras and its suburbs. But the inscriptions which are now being published show that elsewhere in the Presidency it was the same. The volumes of South Indian Inscriptions supply ample information on the point. I will only refer to one or two by way of illustration. In the inscription which is printea at page 115 of volume 2, Part II of the South Indian Inscriptions, we find among the properties sold the village-site (gramanattam), the place used for the pasture of the cows (gopracharabhumi), veilan-nattam, the land which includes the land of the cultivator, ponds, channels, hills jungles and mounts; and the extent, according to the survey, of these items, is given. It gives the trees overground and the wells under-ground with rights of alienation. In another grant we have urnattam (village-site) kulam (pond), vaikkal (channel) passing through the villages, the paracheri kamalacheri and burning ground (ohudukadu). I have selected these two inscriptions at random out of a mass of inscriptions which are printed in these volumes, which go to tell the same story, i.e, in ancient days the grant conveyed the entire property in the village of every kind and form. These title-deeds, published in the Mirasi Papers and the deeds that come frequently before the Courts, refer to the eight incidents of ownership which are conveyed by them. They are explained in the Mirasi Papers at page 206. Pashana, one of these eight incidents conveyed, means mountains, rocks and their contents, i.e, mines and minerals and has always been understood to show that even waste lands were conveyed; see Sariehtadar Sankearayya on this point at page 221, Some of these grants were made by the Rajas themselves. Whenever the king wanted to bestow waste lands or any extent of land within the limits of a village, he purchased them from the mirasidars; otherwise, the donee obtained only the Government share. Sarishtadar Sankarayya states that this has been the practice in the Chola country in the village of Nidamangalam, Callanai and many others. Sea Mirasi Papers, page 220. The Inam Commissioner, whose proceedings form an enclosure to G.O No. 2346, Revenue, dated the 23rd December 1861, stated that in Tanjore “when the Rajas of the country granted waste lands in inam, they generally purchased or obtained in gift the mirasi right of the lands from the mirasidars and conferred it on the inamdars. Another arrangement sometimes made with the same object, was to confer a portion of the inam on the mirasidars of the village in compensation for their rights over the waste land which was given in inam. This was done either by grants or subsequently by the grantees.” This report is of special importance as it was made with a view to obtain the order of the Government as to how such lands are to be dealt with. This seems decisive. So far the documentary evidence.
But after a century of British Government, these ancient deeds can only be relied upon to explain and support the rights of the village communities, where they have succeeded in preserving their rights. When the East India Company took possession of the country, the village communities were in a state of disintegration. Some villages were held as joint property, the entire produce being divided among the mirasidars in certain defined shares. In some other villages, all the lands under cultivation were divided, but the waste lands, eta., were held as common property. In certain other villages, the lands under cultivation and some areble waste were divided and the rest of the lands were held in common. The ryotwari settlement, which was introduced by the East India Company, was practically destructive of this communal holding of property. The Government as far as possible entered into direct relation with the individual proprietors, Pattas were issued to each ryot and the land which the pattadar was to cultivate in the ensuing year was entered therein and if he was unwilling to cultivate any land, he had to surrender it to the Government, Again, the policy of the Government was to enter into direct relation with the actual cultivator. The rights of the mirasidar, therefore, as a middle man were recognized as little as possible. The village autonomy was thus destroyed. The old boundaries were lost many villages ware often clubbed into one. The old hereditary village officials became, or gave place to new, Government servants. The oppressive character of the revenue assessments in the early years of the last century, the comparative frequency of famines and seasons of scarcity led to the abandonment of villages. Consequently, it is now difficult to say whether there is any presumption of mirasi right in any district or to what extent the village community have succeeded in preserving their rights. They survived, generally speaking, in those districts, Chingleput and Tanjore in particular, in which the Collectors respected ancient native rights, though from other districts also cases often come before the Courts in which the village community have successfully asserted their claims. The presumption will also vary with the kind of waste in dispute. I shall briefly refer to the recognized authorities. Mr. Ellis, who was a Collector whose opinion is referred to always with respect on this point, recognized the full ownership of the mirasidars in the lands of the village. According to him, when they cultivated the lands themselves, they paid the Government revenue. When any non-mirasidar cultivated, he paid thunduvaram to the mirasidar. From him all the mirasidars received also certain fees. He was of opinion that the mirasi right also extended to waste. He distinguished between culturable waste land, that might be brought under cultivation and immemorial waste: see page 184. He said that the mirasidars had as much right in the culturable waste, as they had in the lands under cultivation paying revenue to Government They might cultivate it or cut wood, but in the case of immemorial waste, though they had the right of cutting wood, grazing their cattle and quarrying, they had no right of cultivation and could not break up the pasturage or out down productive trees without the consent of the Government. He also pointed out that mirasi right was saleable (when he wrote) and that such sales were of shares in the villages: Mirasi Papers, pages 205, 207. This was also the opinion of Sankarayya, who was for many years Sarishtadar in the Huzur Cutcherry at Madras. Mr. Ellis was also of opinion that, if the mirasidars declined to take up culturable waste for cultivation or failed to make any arrangements for it, it was open to the Sirkar to give it to strangers for cultivation, though the mirasi right would not be thereby extinguished. The mirasidar would be entitled after any lapse of time to claim those lands himself. The other District officers, who were consulted, agreed generally with these opinions, though there were differences between them in detail. The opinion of Ellis was first accepted by the Government of Madras and the Board of Revenue and was printed and circulated for the use of the service at large. See Mirasi Papers, page 344; but Sir Thomas Munro, who became the Governor of Madras afterwards, disagreed with, it and he recorded his opinion in his minute of the 31st December 1824 and in all the subsequent discussions the question has generally assumed the form, which of them is more reliable. Sir Thomas Munro wrote that the view taken by Mr. Ellis and others, that the mirasidar of wet land was bound to pay rent only for what he cultivated, is wrong and that, if he left any land uncultivated and the Government gave the land to another person for cultivation, the mirasidar had no right to exact from him the landlord's share of rent, though the mirasidar might have still the privilege for a long, though not clearly defined, term of years, of recovering his land from the Government tenant on consenting to pay the rent. As regards the waste lands, be stated:
“The waste in miras villages in Arcot is supposed by Mr. Ellis to belong to the mirasidars jointly; and he supports his opinion by documents showing that, when a mirasidar sells his cultivated lands, he transfers by the same deed to the purchaser his right in the produce of the waste, the quarries, mines, fisheries, etc., within the limits of the village. But this appears to be a mere technical form, which can give no actual proprietary right in the waste. It is used in villages where there is no waste, as well as where there is and may be used where there is no miras. It confers a right, but not the right of ownership, to the pasture of the waste lands and the fishery of the tanks and nullahs, in common with the other mirasidars of the village. The same right exists everywhere. In those parts of the Deccan where miras is unknown, the ryots of every village reserve the fishery and pasture to themselves and drive away the cattle of strangers and derive just as much benefit from the waste as those of miras villages. Such a right seems to be a natural one everywhere and it is accordingly assumed by the ryots of every village without its being supposed that any formal grant is necessary for the purpose.” He added afterwards: “It has been supposed that in miras villages in Arcot, in the original compact between the circar and the first settlers, the exclusive use of the waste was secured to those settlers: but it has already been shown that, in all villages, whether miras or not, the inhabitants reserve to themselves the exclusive use of the waste. But this right is good only against strangers, not against the circar, which possesses, I think, by the usage of the country, the absolute right of disposing of the waste as it pleases, in villages which are miras as well as in those which are not.”
Sir Thomas Munro is, no doubt, right in saying that the mere fact that the deeds of conveyance referred to the waste, quarries, mines and fisheries would not convey any title if the vendor was not entitled to them, but, where it is accompanied by the exercise of rights of ownership, then they form strong evidence of title. It is stated in the same extract that the ryots of every village reserved the rights of pasture and fishery to themselves; the right of exclusive enjoyment is, of course, one of the main incidents of ownership. Again Mr. Ellis states that the mirasidar used to exercise the right of quarrying. Thia is almost a conclusive test of ownership. Other acts of ownership will be referred to later. Sir Thomas Munro states, no doubt, that certain rights referred to by him were exercised and these deeds of conveyance executed in this form, not only by the mirasidars but also by those village communities where no mirasi right prevailed. That only shows that, after the village communities in non-mirasi villages lost certain rights, they still retained others with that form of conveyance; but, in so far as any rights have been asserted and exercised, these deeds support the view that they were based upon ancient usage. Sir Thomas Munro also says: “The ciroar from ancient times has everywhere, even in Arcot as well as in other provinces, granted waste in inam free of every rent or claim, public or private and appears in all such grants to have considered the waste as being exclusively it a own property.” It is undoubtedly the fact that there are many ancient grants by rulers conveying waste in inam, etc. and they show prima facie that the waste was Government property at the time of the grant. A large number will be found in the South Indian Inscriptions and a few in the Mirasi Papers. But Sir Thomas Munro seems to have been unaware of the fact that, when in ancient times the Sirkar granted waste in inam free of every rent or claim generally, it was after purchasing the property from the mirasidars. We cannot ignore the statements on this point of Sankarayya or the Inam Commissioner, to which I have referred. This suggests an inference, as I have pointed out, exactly contrary to that drawn by Munro. Further the fact that Government granted the waste lands to village communities, shows not only the title of the latter to the waste lands but raises a presumption of a lost grant in every case of village community in possession of waste, So, if I had to form an opinion as between Sir Thomas Munro and Mr. Ellis at this distance of time, I should hesitate very much to accept his (Sir Thomas Munro's) view in opposition to that of Mr. Ellis and the other District officers. But it appears to me that the question is concluded by authority and that Sir Thomas Munro's view has been considered and authoritatively rejected by the Civil Courts and also by the Government. His opinion was recorded in 1824. The question soon came up for consideration before the Civil Court. As between the Government and the mirasidars, the nature of the mirasi right was considered in Cause No. 90 of 1836 in the Zillah Court of Chingleput and in appeal from that decision. The plaintiffs therein claimed to be the mirasidars of the village and their case was that there were 164 and odd cawnies of uncultivated land in the village, out of which the Collector, the first defendant, granted under a cowls to the plaintiffs 40 cawnies and by another cowle to others, who did not belong to the village, 80 cawnies. The plaintiffs, being unwilling that persons who had no mirasi in the village should have possession of any part of the waste land, offered to take the whole of the 164 and odd cawnies and give security for the revenue. The Collector, however, refused to do so and gave a, portion of the land to the seventh and other defendants. The plaintiffs denied the right of the Collector to give away such land. The Collector contended that the land was waste and that he had the power of granting cowle to any person who was willing to undertake to bring it under cultivation. On this question this is the finding the Judge.
“From the evidence in this case it is quite evident that the plaintiffs alone are the mirasidars and that the seventh defendant and others have no mirasi right whatever in the village. That the mirasidars alone have a right to sell and mortgage varapat land and that to every mirasi there is a certain portion of waste land attached, but the particular parts of the waste land which belong to each individual mirasi share is not actually known because those waste lands are seldom if ever divided, are facts which have been established by the evidence of witnesses in numberless cases before this Court; and as no one ever attempted to dispute the inherent right of mirasidars to the waste land, it is evident that, without the consent of the proprietors of the soil, the Collector has no authority to deliver any part of these lands to other persons”: Papers on Mirasi Rights, 461.
There was an appeal from that decree to the Provincial Court and the Collector relied, amongst other grounds, on the opinion of Sir Thomas Munro, already referred to, that 11 the right of the nsirasidars to the waste was good only so far as to preclude strangers from grazing and exercising other rights of common in the village but, that the Sirkar possessed, by the usage of the country, the absolute right of disposing of the waste as it pleases in villages which are mirasi, as well as in those which are not see page 465, Mirasi Papers. The Appellate Court upheld the right of the mirasidars to the village waste. The following is the material portion of the judgment: see pages 466-467:—
“The first point which calls for notice in the argument of the appellant, is the objection taken to that part of the Zilla Judge's decree which asserts that ‘the right of the mirasidars to the immemorial waste lands has never been disputed,’ this averment of the Zilla Judge appears in entire accordance with the law of mirasi as laid down by Mr. Ellis, while the contrary position of the appellant that in fact ‘the immemorial waste is the absolute property of the Sirkar;’ is not only incompatible with his views, but also incompatible with the possession on the part of the mirasidar of any property in the soil whatever Mr. Ellis says: Mirasi right, wherever it exists, certainly extends to waste lands' In the anadi-karambu or immemorial waste, though the mirasidars possess the exclusive right of cutting firewood, working quarries etc., they have no right of cultivation, much less can they claim to break up common used for. Pasturage, or to cut down productive trees, etc. ‘Mirasi right is confined to the use of these as they exist,’ no Iteration can be made with respect to them by the mirasidar. I mean that they have no inherent right to do so. With the consent of the circar, any beneficial change in the appropriation of lands may take place and a correspondent alteration may be mada in the tarapadi accounts; thus, if part of the anadikarambu lands be reolaimed, or a road in the poramboke be stopped up and cultivated, the extent must be transferred from this head to that of varapat’ (varapat lands under wet cultivation paying revenue). The restriction contained in the foregoing has no reference whatever to a limitation of right (as property), but to the power of it a conversion except for beneficial purposes, the Government having a voice in the case of such conversion, being equally interested as the mirasidars in its effects. If a mirasidar be so reduced in circumstances as not to be able to bring under cultivation his share of the varapat, or if he should have abandoned agriculture for other pursuits, it is incumbent on him to provide for its culture by granting to paikaris such terms as will induce them to bestow on it the advantages of their stock and labours. If he does not do so the State has then a right to employ paikaris either for the current year, or for a fixed, not an indefinite, number of years and perhaps to resume his mirasi swatantrams in proportion to the extent of land he has neglected to cultivate.’ The mirasi tenure seems almost indefeasible, every possible allowance and expedient having been in practice to prevent its alienation from the original possessor. B. Sankarayya, whose views of mirasi are recorded with those of Mr. Ellis, says: ‘as waste lands are included in the gramataram, all such lands have been considered to appertain exclusively to the mirasidars.’ The same authority, speaking of the right of the oiroar to provide for the revenue where the mirasidar makes default, says: ‘If, therefore, the mirasidars fail to cultivate and loss thence accrues to the State, the circar enjoys and exorcises the right to cause the lands to bu cultivated and to issue cowlos for the purpose.’ Although many authorities concur on this point, I have not met with one which vesta in the circar power over mirasi lands further than is necessary for the temporary protection of the revenue, in default of its being provided through the means of the mirasidar; nor have I found any authority which distinguishes the right over waste (as property) and cultivable land, except in the purpose of their respective application. Every village has a certain portion of waste land attached to it, which neither the mirasidar nor the Government can break up unless for mutual benefit. Mirasi is founded on immemorial usage, from which neither the Government nor the ryot has power to depart in any respect unless for a beneficial change; pages 466, 467, Papers on Mirasi Rights; and the conclusions are stated in the following terms: ‘The document granted by the Collector and which is denominated a cowle, is an entire annihilation of the right of the plaintiffs. It conveys the lands in perpetuity to paikaris without respect to the mirasidar's claim; it assumes the right of soil to be in the Government, instead of the mirasidar; and it does not even recognize mirasi as a distinction, much less its claims. The circumstances which would have justified even temporary alienation of the land by the Collector to the paikaris, are all wanting in the case. The act was not necessary as a protection of the revenue, as the plaintiffs offered security for its full payment whether they cultivated the land or not. Their offer (Document No. 50) is dates 20th May 1835, the cowle to the seventh and ninth defendants is dated 15th June same year. If the waste in question were convertible into cultivable land, it is quite clear from the authorities quoted that, on its conversion from the anadi-karambu to varapat, it ought to have been entered as such, in the tarapadi accounts of the village and then divided among the mirasidars according to the manner in which the rest of the village was shared among them’”
I have referred do this judgment at some length, not only because it deals fully with the question, but discards the opinion of Sir Thomas Munro when it was specially relied upon—see the memorandum of appeal—and adopts the views of Mr. Ellis. (Papers on Mirasi Right, page 462). The Court of Directors accepted this ruling. While the question was pending before the Provincial Court, they stated the rule to be that, whenever the waste lands of a mirasi village were proposed to be given to any other than the mirasidars the proposal should, in the first instance, be communicated to them, to whom, in the event of their being willing to cultivate or to give security for the revenue assessable on the lands, the preference should be given. They added: “We consider that the Government has a clear right to the revenue to be derived from the conversion of waste lands into areble.” It will be noticed here that the only claim asserted on behalf of the Government was to the revenue of the lands and that, if security was given for the payment of the revenue, then no right of interference was claimed.
The Court of Directors claimed only that right in dealing with waste lands in revenue interest which was claimed by Munro in wet lands. It would have been otherwise, of course if the Government had claimed the proprietorship of the waste lands. After the decision was given, they, reiterated this opinion in 1844 and they added: “The question still remains undecided, whether Government possesses the right, in the event of the mirasidar refusing to cultivate or to give security for the revenue, to alienate waste lands in mirasi villages to purakudi cultivators.” It will be noticed that the decision of the Provincial Court above referred to only justified a temporary alienation of lands by the Collector as protection of the revenue as in cases of land under cultivation and it did not recognize any right when the plaintiffs offered security for its payment, whether they “cultivated the land or not.”
In the next case that may be referred to Appeal Suit No. 100 of 1849 in the Civil Court of Chingleput, it was decided that the mirasidars have no right to levy swatantrams or fees from paikaris who do not hold from them, but who have at their own expense brought immemorial waste into cultivation under cowle granted by the Sirkar. It is stated by the Judge who decided that case, that this point had been frequently decided in the negative, to which observation there is a note appended by the Member of the Board of Revenue who published that judgment that, “it would have been better had the Civil Judge quoted the cases but, whether the Judge was right or not, he does not decide the question under consideration, because it may be that the owner of the land has no right to receive swatantram from trespassers. He may eject them or get mesne profits, but the fees he may not be entitled to get Papers on Mirasi Rights, page 484.
Whenever the question was brought before the Courts, the ownership of the mirasidar has been consistently upheld. In the case which is referred to in the Mirasi Papers, page 487, the Sudder Court says in 1849: “The mirasidars are the acknowledged hereditary proprietors of the soil,” and it upholds their claim to recover property against the person in possession who was a pattadar himself paying revenue to Government. In page 119, Sudder Decisions of 1850, where the defendants held on pattas issued by the Collector of the district, the law was thus laid clown by the Sudder Court, “The Court of Sudder Adalat are also further of opinion that the law as laid down by the Civil Judge, relative to the Government officers having authority unreservedly to dispose of any lands sitmtad in a mirasi village that may be let waste for a period of years, is erroneous, no such right being claimed by the Government by whom the prescriptive rights and privileges of the mirasidars are upheld.” In a case reported in the Sudder Court Decisions of 1854, page 140, the Sudder Court recognized the proprietary right of the mirasidars and their right to possession on such basis.
This was in 1854. These decisions, it appears to me, are in conformity with the orders of the Court of Directors, which recognize the ownership of the mirasidars and the right of Government to give the land to strangers when it becomes necessary in revenue interests to do so a right claimed equally with reference to wet lands.
When the survey and settlement of the Presidency was undertaken, the Court of Directors on the 17th December 1856 directed the Madras Government to act in accordance with their previous declarations already referred to: see page 556, Mirasi Papers. When a mirasidar in Tanjore, dissatisfied with the local authorities, civil and criminal, ventured to submit a memorial to the Court of Directors, the Madras Government recognized his claim to the waste land, dissented from the Board's view that it was open to Government to give the land to whomever they liked and held “that the bast authorities were agreed that in mirasi villages the miras extended to waste as well as areble land—” 22nd December 1856. Even in non-mirasi villages the Court of Directors would not assert Government ownership. Their conclusion is stated in G.O No. 667 of the 27th May 1856: “The waste land in this country, in the villages of the plains at least, is certainly not the property of Government or the State, in the absolute sense in which the unoccupied land in the United States and some of the British colonies is so. The village communities claim an interest in it and that interest has been universally admitted though not accurately defined. To put up the waste to sale, entirely ignoring that prior right of the village communities, would be to introduce a totally new practice; and it would certainly be regarded by the common feeling of the country as an invasion of existing rights” see also Government Order of 5th June 1857.
In Madras itself the Collector reported in 1855 “the mirasidars have been in the habit of selling the waste lands of this collectorate and claiming mirasi in them” and in that year the Revenue officials denied their right only to immemorial waste, a claim, however, which they gave up on the opinion of the Advocate-General that it was unsupportable: see page 511, Mirasi Papers. Finally there is a decision in 1862. The Sudder Court laid down, “Adverting to the admitted fact that Tolavoor is a mirasi village, it follows as a necessary corollary from this judgment that the defendants are themselves mirasidars and that they possess a right to all the privileges incident to a proprietary right of this character including the title to a share of samudayam or common lands.” (See page 51, Decision of Sudder Court, Madras, 1862.)
These decisions, it appears to me, are binding upon as and they fully recognize the ownership of the mirasidars in all the lands in the mirasi village including the waste. They recognize also the right of the Government in cases where the mirasidars refused to cultivate the lands, waste or under cultivation, to let them to another for temporary cultivation. Whether in such cases the mirasidar retained his mirasi right, either to recover swatantrams of his from the tenant let in by the Government or to turn him out, was a question apparently not settled.
In 1964 the Revenue Recovery Act (Act II of 1864) was passed. Under this Act it has been finally decided that the Government have not the right to assign the waste land to a person for cultivation on the ground that the owner of the land does not cultivate it or pay revenue which the new pattadar offers to pay to Government. In Secretary of State v. Ashtamurthi in fact, the argument advanced was that, as the State is entitled to a share of produce in every cultivated land and if the land that is now waste is given to a new pattadar for cultivation the Government would derive its shares of the produce, the true owner cannot be allowed to defeat that alleged right of the Government to get the share by refusing to cultivate it himself and not allowing Government to give it to another. This argument was rejected and it was held that the Government had no right to let in a new pattadar into possession and that, if such pattadar was let in, the true owner might turn him out and obtain possession, and, therefore, that, if the land was sold for revenue which might not have been paid by the new pattadar, the purchaser would get no interest; in the property. This decision has been repeatedly followed and is considered to have finally settled the question. That they have no such right to deal with ordinary ryotwar land under cultivation is now settled. The only remedy is sale for arrears of revenue. All the decisions, therefore, prior to 1864, which I have noticed and which recognized the right in the Government to put a new pattadar into possession if the mirasidar let the land waste, must be disregarded after the passing of Act II of 1864, if a mirasidar is the true owner of the land; and the decisions to which I have referred leave no room for doubt that he was recognized as true owner and the right of Government was recognized by the decisions and by the Court of Directors only as a right for the protection of the revenue and not as ownership of the land.
In considering what took place subsequently we need there fore trouble ourselves only with the question of ownership of the mirasidar. In 1870, the Government in its G.O No. 796, dated the 1st June 1870, put forward their claim to appropriate immemorial waste lands in mirasi villages for State purposes without reference to the mirasidars. From this it was held to follow that the claim for compensation for poramboke lands also was untenable.
In 1872 the whole question was again referred to the Collectors for report with reference to the gramanattam in non-mirasi villages as well as in mirasi villages. On a consideration of the reports received from all the Collectors, the Board of Revenue stated their opinion in these terms: “The true view of the case is that gramanattam is the communal property of the villagers and that the Collector can only interfere with a view to benefit the community and when his action is consistent with the common law. To alter this state of things a special enactment would be necessary. No authoritative enunciation of a principle would suffice. Such a law would confiscate private property and the end would not be such as to justify the means.” The Government, however, ware not prepared to go so far as the Board of Revenue in declaring gramanattam to be the communal property of the villagers. The Government said; “By immemorial usage a portion of every village is assigned rent free as a site for the dwellings of the villagers; but, as the old hukumnamas show, the enjoyment of it is subject to regulation by the Government.” This is in accordance with the common law of the land, under which the Government is only entitled to a share of the produce and therefore not entitled to levy any tax in land not capable of yielding any produce. With reference to mirasi villages, they said: “In purely mirasi villages, where the entire area belongs to the mirasidars, the gramanattam no doubt appertains to them equally with the other poramboke, but these cases are exceptional.” They accordingly directed the Board to issue instructions to that effect. Accordingly the Board issue Standing Order No. 39 in March 1873 (see page 58 of Maolean's Standing Orders of the Board of Revenue). It would be noticed that this was a final declaration made to the public that, so far as the zamindari and mirasi villages are concerned, the Government have no concern with them and they do not assert any ownership is them. With reference be non-mirad villages they had only the power of control, which was no doubt necessary in the public interests. In 1875–1876 when the question of the Chingleput revenue settlement was under consideration, the Board in their Proceedings No. 1415, dated the 25th May 1875, pointed out: “The system is strongly rooted in law and immemorial custom it is there and must be regarded in many respects neither more nor less than a great but necessary evil, it is of great antiquity, is clearly cherished and has existed with more or less vitality, notwithstanding many years of persistent efforts to crash it.” Tue admission of persistent efforts during many years to crush the mirasi system and its survival notwithstanding is significant. In 1876 the settlement rules were promulgated. The Government by these settlement rules reoogoized, in accordance with the views above stated, the claim of the mirasidars to a swatantram of 2 annas in the rupee of the Government assessment and the fee calculated at this rate was entered in the settlement register, except as regards certain lands to which it is now unnecessary to refer. The nature of the settlement, the rates conceded to the mirasidars and the title of the mirasidar as the owner of the land were clearly set forth in the descriptive memoirs that accompanied each Settlement register.
The Settlement Officer states in his report that the mirasidars agreed to abandon their obstructive tactics in the future, as they fully expected in return to receive their swatantrams from the Government karnam, who would collect them and that the Government held out such hopes to them. But after the settlement was over, the Government said that, if any such expectation were held out to the mirasidars, it was unauthorized (see G.O No. 2863, Revenue, dated the 19th October 1909). However, the claim to swatantram was recognized; only the Government refused to collect the fees for paying it over to them. This recognition is continued up to date: see Board's Standing Order No. 15, paragraph 28 at page 29 and Order 2868, Revenue, dated the 19th October 1909. A few years after, however, the Government came to the conclusion that the ciaim of the mirasidar to the gramanattam must be resisted, and, as a first step towards it, they resolved to abolish the system of double entry, which showed the name of the occupant and also the name of the mirasidar as the owner of such land as otherwise it would appear that the Government acquiesced in the claim of the mirasidars. The double entry was accordingly stopped some time before 1890. In 1892 and 1894 the Government resolved definitely to deny the mirasidar's claim to the waste lands in the village, including gramanattam, except to the swatantram and to a preferential right to cultivation and they have maintained that attitude ever since. In the meantime, the question often came before the Courts. In Sakkaji Rau v. Latchmina Gaundan the plaintiff, as the sole mirasidar, sued the defendant, who was let into possession by a Revenue Officer, to recover possession of that property and arrears of thundutirwai at a certain rate. The Munsif refused to eject the defendant, but passed a decree for arrears of thuaduvaram. On appeal, the District Judge held that, by omitting to take a revenue engagement for the lands, the plaintiff had relinquished his mirasi right in them and reversed the decree in his favour for thundutirwai. The High Court at first bald that, while the omission of the mitasidar to cultivate might authorize the revenue authorities to introduce a cultivator, it did not further prejudice the prescriptive rights of the mirasidar and such rights would not be lost by the mirasidar declining to receive a patta for the lands. A review of the judgment was allowed and the case was reargued. It may be noticed that there was no appeal before the High Court by the mirasidar against the dismissal of the claim for the recovery of the land. The question that was argued in second appeal was confined to his right to receive the dues from the cultivators who held under pattas from the Government and the High Court held that in such cases, wherever the right was denied, there should be an inquiry whether by custom it prevailed on the estate or similar estates in the neighbourhood. It accordingly remitted issues for the trial of that question. On the point before us, as to his right to recover possession of the land, this decision is not an authority. The suggestion that the refusal of the mirasidar to cultivate the waste which was till then not paying any revenue, might justify the revenue officials in introducing a stranger, can no longer be accepted: see Secretary of State v. Ashtamurthi. But the case, however, lays down the following propositions:—That it is unsafe to infer that, although tenures resembling one another in their general features are met with in many provinces, these incidents are identical in different provinces or in the same province. The political circumstances have more or less affected tenures. It must not therefore be assumed that the incidents of the mirasi tenure are everywhere alike. The learned Judges expressed their dissent from the ruling of the District Court, that if any ryct accepted a patta from the Government of land in which another person has mirasi right, the latter right is lost. It was pointed out that there had been no law depriving the mirasidars of any privileges they might have customarily enjoyed and that the intention of the Government was to respect the privileges of landholders of all classes. This was the judgment of a Full Bench.
In Civil Suit No. 128 of 1882 on the Original Side, known as the Vyasarpadi case, Sir Charles Turner, who took part in Full Bench judgment, came to the conclusion, that the plaintiff in that suit, who had purchased a piece of immemorial waste land within the limits of Madras City from the mirasidars of Vyasarpadi, was entitled to it as against the Government, who destroyed his house and garden and ejected him. There was no appeal against that decision it is a decision directly in point. He says in that; judgment: “The first question to be considered in this suit is, whether by the customary law mirasidars have any title to the waste lands within the area of the mirasi estate;” and he decided that question in the affirmative: He said: “From the authorities I have consulted in this and other cases which have come before the Court, I hold that mirasidars have, in this part of the Presi lency, certain property in the waste and that property enables them to dispose of the occupancy of the lands, subject, of course, to the payment of revenue and that this property is not necessarily lost by non-payment of revenue. I need not refer to any further authority than the replies made by Mr. Ellis and Mr. Sankarayya.”
In Original Suit No. 136 of 1889 on the file of the Chingleput District Munsif's Court, a mirasidar sued for the value of certain bamboo trees taken away by certain coolies under the orders of the Sub-Collector. The land on which the trees stood was gramanattam poramboke (punja Mungal Vadi). The right of the Government was negatived and the decree passed in favour of the plaintiffs was confirmed on appeal by the District Court. There was no Second Appeal.
In Original Suit No. 33 of 1894 on the file of the District Munsif of Tiruvallur, the plaintiff contended that the land in question was his backyard, which he was entitled to enjoy rent free and that the defendant, the Collector, had no right to levy assessment on it. The defendants denied the plaintiff's claim as mirasidar. The District Munsif, after taking evidence of usage, in an exhaustive judgment upheld the mirasidar's claim, though his contention to hold it free of rent was disallowed.
The next case that may be referred to, is the one relied on by the Lower Courts, i.e, Sivantha Naicken v. Nattu Ranga Chari. There the dispute was between the mirasidars and the shrotriyamdars and the question was, whether as mirasidars they were entitled to the compensation for waste lands taken up by Government for public purposes, or, whether the shrotriyamdars were so entitled. The Judges of the High Court held that the mirasidars were not entitled to it. It was proved in that case that the shrotriyamdars had leased portions of waste lands from time to time to the mirasidars of the village and sometimes also to strangers, without giving the mirasidars a share of the rent or other compensation. There was also an admission by one of the mirasidars that they did belong to the shrotriyamdara. I have already pointed out that, before the Government granted waste lands in inam, they often purchased the waste lands from the mirasidars. Accordingly, where it is shown that the shrotriyamdar, as grantee of Government, exercised all the rights which would be exercise by the mirasidars, if they ware entitled to them, the presumption would only be that the Government purchased those rights from the mirasidars and granted them to the shrotriyamdar. The case therefore, can only be taken to decide that in that particular village the so-called mirasidars had not any mirasi claims. It is true that there are a few observations against the ownership of the mirasidars in that judgment, which have been relied upon by the Lower Courts. But it may be pointed out that, if those learned Judges meant to say that any rights which the mirasidars had were extinguished when the Government dealt with the lands, their judgment would be opposed to the Full Bench decision in Sakkaji Rau v. Latchmana Gaundan, to which I have already made reference. When they observe that no compensation for immemorial waste was recognized by Government they ignore the facts found in Sir C. Turner's judgment. They do not refer to the fact that the Government were ordered to pay compensation by him and as stated by the Advocate-General in his opinion already referred to, the Courts compelled the Government to pay for land taken up in 1803 When they say that the claim of the mirasidars only extends to grazing, etc., they go beyond the admission of Government of the right to swatantrams. They refer to the opinion of the Revenue Board as extracted in Sakkaji Rau v. Latchmana Gaundan as an authority. If they had referred to the original, they would have discovered that the Revenue Board considered Mr. Ellis to be of the same view as themselves. It is, however, an opinion which is of not greater weight than the decisions and opinions of Government and the Court of Directors before and after. I think it is unnecessary to dwell further upon this case, as it has been considered in a more recent case by a bench, of which one of the learned Judges, Mr. Justice Benson, who decided Sivantha Naicken v. Nattu Ranga Chari was a member. In Natesa Gramani v. Venkatarama Reddi the question arose between the zamindar and the mirasidars. Both the Revenue Courts which tried the case and the District Court in appeal found that in the Chingleput district waste lands were generally the property of the mirasidars and that the water in such poramboke was also their property. The fact that the Government was not a party does not deprive the decision of its probative force. With regard to Sivantha Naicken v. Nattu Ranga Chari it was pointed out that the decision proceeded, as I have mentioned already, on the facts proved as to that particular village. The decision, therefore, in Sivantha Naicken v. Nattu Ranga Chari on which the lower Courts relied, can no longer be treated as an authority on behalf of the Government. A decision by Benson and Bhashyam Ayyangar, JJ., was relied upon. It does not refer to a mirasi village and even in the village in question it does not show any Government ownership nor anything more than that the Government have the right to regulate the allotment of house-sites among the members of the village. The decision is not ageist the exclusive right of the village to waste lands against outsiders, even though claiming under Government, nor does the decision in the Secretary of State for India v. M. Krishnayya(3), refer to mirasi rights. It refars to kurnaki rights, There is, no doubt, an observation in that judgment that the “right of the Government to the waste lands has now, after protracted contest, been established against mirasidars” (page 282). I am not aware of any decision to this effect other than that in Sivantha Naicken v. Nattu Ranga Chari, which I have referred to. It is said in the judgment that, under the Hindu Law, the immemorial waste belongs to the Crown. If this refers to the waste in the village, the ancient deads, the fact that the Rajas had to purchase the mirasi claims before granting inams, the constitution of the village Government and the usage proved beyond doubt show that this opinion cannot apply to mirasi villages. It is therefore unnecessary to consider how far the general statement as to ancient Hindu Law can be supported. The question has beau diseased by various authorities and by Sir Chakles Turner in his minute on the land tenures of Malabar, Manu does not recogaize it. He places uncultivated land in the same category as wild game as the ancient deeds to which I have referred and his text refers to the origin of individual out of communal ownership. The only Indian writer I know of, who supports that view, is Jagannath Taroapanchanana, who wrote in Bengal and of the state of things there. It is enough to state that, according to him, the ryot is only an annual tenant, even of lands under cultivation. Megasthenes also states that no private person is allowed to own land. On the other and besides the reasons I have set out in my judgment, the limitation of the King's claim to only a share of the produce of the land under cultivation, the numerous inam grants, the undoubted fact that the King received no revenue (as imported by the word itself) from agraharams, entire villages owned by Brahmans, in which their full ownership was recognized and was not entire to receive anything from them according to Manu, the improbability of such claims in cases of Brahman or military colonists have to be considered. It is, on the other hand, equally clear that, when the Hindu Law was once displaced by the Muhammadan Government, the Muhammadan chiefs, and, in imitation of them, the Hindu rulers also, deprived so far as they could the ancient proprietors of their property in land. I make these observations only to show that I should not be supposed to accept this opinion and that, if necessary, the question requires further consideration. But, so far as mirasi villages are concerned, we may proceed upon facts, not theories. Munro's opinion is also relied upon, I have already discussed as to the value to be attached to it: see also Baden Powell on Village Communities, page 379. The rest of the judgment deals with Canara and proceeds partly upon the assumption of Muhammadan Law having been in force there.
From the above review, it appears to me that the following facts are clear. The opinion of Sir Thomas Munro against the right of the mirasidars and in favour of the Government claim was authoritatively rejected when it was relied on before the Civil Court and that of Mr. Ellis in favour of the mirasidars' claims accepted. Sir Thomas Munro's opinion was also not acted upon by the Court of Directors. Even in the cases of non-mirasi villages it was not accepted by them. The only right which the Court of Directors insisted upon and which the decisions recognized, was the right to project the Government revenue and to take the lands away from the misirdars the owners of the lands and grant them to others, if they refused to receive pattas for cultivation. Sue right, as I have pointed out, can no longer be recognized under Act II of 1864, as explained by the decision in Secretary of State v. Ashtamurthi. The Government asserted their right of ownership in 1870, but no new grounds were alleged or, if alleged, what those grounds are, does not appear in any of the Government Proceedings. In 1872, with reference to gramanattams, a fuller inquiry was made and it was expressly decided that they belonged to the mirasidar. In the case of non-mirasi villages the right to allot sites among the villagers of the community alone was assumed. No ownership to as asserted even in non-mirasi villages. In 1876, at the time of the Chingleput settlements, they conceded the claim of the mirasidars to swatantram. This was done at a time when the Government had not receded from the position they had taken up in 1872, of full recognition of mirasi ownership. Swatantram was evidently intended as payment of owner's dues. The Government records contained the entry of mirasidar's ownership. Then they again asserted, about and after 1890, their right to the waste lands and to gramanattam, Besides repeating Sir Thomas Munro's statement (without any reference to the various decisions and the opinions of the Court of Directors) we have got no new facts or arguments. The real reason for putting forward this claim appears in what was stated by the Board of Revenue in their proceedings No. 1547, dated the 7th July 1886. They state “the claim now under consideration, which is a claim that, if admitted, will enable mirasidars to all mirasi villages to do what they like with nattam lands and check Mate Government by refusing to the paikaris, who have been thrust upon them by Government, houses in the village site, must be resisted as anachronistic and inconsistent with the welfare of Government and its subjects. If rested, it will probably be asserted in a Court of Law, but even if it is the Board do not thick that any Court will hold that the right of the mirasidars over gramanattam is absolute. The utmost they will get is probably a right subject to the communal right of the villagers.” That these rights of the mirasidars are inconsistent with the welfare of the people generally, may probably be true. But a Court of law cannot, on that account, disregard a legal claim. The first step was taken by Government by altering the “double” entry system, which recognized mirasi ownership. But the Government conceded the mirasidar's right to swatantrams. It was originally claimed and allowed, as I pointed out, in recognition of ownership. If, after the alteration in the Government records, the recognition was continued on any other basis, it has not been explained, and, in the absence of any explanation, it is a standing recognition of the right. While the Government has thus been vacillating in their views and putting forward their claims on different grounds, which deprive their pretensions of the weight otherwise due, the Courts have been consistently upholding the mirasidar's ownership. They have recognized their right to turn out the persons who were in possession of house-sites. They have recognized their right to turn out the persons who were in possession of lands. It is true that to many of these suits the Government were not parties. But, as pointed out, it does not make them any the less binding authorities. Again, whenever the mirasidars and the Government were brought face to face in a Court of Law, their (the mirasidars') ownership has been rocognizad. No decision has been referred to in which the Government have succeeded in a Court of Law in assarting their claim to the ownership of these lands against the mirasidars; above all the mirasi right has survived a century of persistent of fort to crush it. I am, therefore, of opinion that a mirasidar is, so far as the Government is concerned, the proprietor of the waste lands in the village. Whether he has the right to convert immemorial waste, that is, anadikarambu, into cultivable land without the consent of Government or of the non-mirasidars of the village, is not a question that arises in this case; on that point, the authorities are all against the claim of the mirasidars, and, in my opinion, they are right. It is unnecessary now to give my reasons. But whatever may be the rights of the mirasidar, it is quite clear to that the Government are act entitled to deal with the immemorial waste or introduce other pattadars. Nor must I be assumed to decide in this case that the non-mirasi residents of a village have not the right to take up cultivable waste for culmination on undertaking to pay the mirasidars the thunduvarams and the other customary fees. That question does not arise for decision. The defendants in possession of the land do not set up their right as residents of the village to live on the plaint land. It may be that, though the mirasidars are the owners of the village waste lands and house sites, that claim is subject to the claim of the labourers and the residents in the village and that, if the mirasidar happens to turn out a labourer from his homestead they are bound to give him other house-sites. The records neem to support this view; and whether these rights have disappeared, it is not now necessary for me to determine, as the contending defendants rely solely upon the title created by Government grant. The facts found by the lower Courts show that the plaintiffs have asserted their mirasi claims all through and there is such evidence of possession as the nature of the land admits of in the circumstances, I would allow the claim of the plaintiffs, reverse the decrees of the Courts below and pass a decree for possession.
But, as my learned brother is of opinion that the mirasi rights have now been lost by proceedings of Government and decisions of Courts, we refer to the Full Bench the following question:—
Whether, in a mirasi village, the mirasidar is entitled to recover possession of a house site held under a patta from Government.
Sadasiva Ayyar, J.:— The plaintiffs are the appellants. They are the mirasidars of the village of Mannur in the Chingleput district, owning two out of three pangus in that village. The site in dispute is a backyard site and has been classed in the revenue accounts as the village residential gramanattara. It is in one account called chennattam, which evidently means that it was intended to be occupied as residential quarters by pariahs. The plaintiffs' case is that as mirasidars they were absolute owners (see paragraph 5 of the plaint) of the plaint residential manai backyard, that they had been in possession of the site till October 1903 and that the defendants Nos. 1 to 7, who are pariahs, took wrongful possession of the site is October 1903 Hence the suit for ejecting the defendants and for other reliefs. The defendants' case is that the chgrinattam in the village (of which cherinattam the plaint site is a portion) does not belong to the mirasidars, that it belongs to Government, that the Government was entitled to grant the site to those applicants who wanted the site for purposes of residence and that the defendants Nos. 1 to 12 were such grantees from Government in separate portions. The defendants also denied the plaintiffs' having had possession of the plaint site at any time. The lower Courts dismissed the plaintiffs' suit with coats. The reasons for their decision might be shortly stated thus:—
(a) The legal presumption is that land of the kind in question belongs to Government and any rights that the mirasidars may have are liable to be extinguished, by the Government alienating the land.
(b) The documents A, B, C, D, E, H and J and the oral evidence on the plaintiffs' side do not establish the plaintiffs' title and do not prove that the plaintiffs exercised any acts showing their full ownership over the land. The oral evidence merely shows that some pretence of cultivation was made by the plaintiffs just about the time when the Government granted the site to the pariah defendants in 1895, within twelve years before the suit (which was instituted in 1905. The plaintiffs probably also exercised the usual privilege of the mirasidars, of removing a few branches of the trees growing upon the plaint site (Exhibit PP).
The question of possession and enjoyment is a question of fact and I am not prepared to differ from the concurrent findings of the lower Courts, that the plaintiffs had no such adverse enjoyment of full ownership right as against the Government before 1903 as would extinguish the rights of Government (if Government possessed those rights) to grant the land to the applicants on darkhast. The site was a vacant waste site till January 1905 (see Exhibit IX) The documents A to E, H and J have been fully considered by the District Munsif, Mr. S. Authinarayana Ayyar. He finds Exhibit A to be probably a forgery. He finds Exhibits B and C are not proved to relate to the plaint land and holds that Exhibits E and G came into existence after the Rev. Clayton had requested, the Collector to, the extend paracheri and are therefore of little value. As regards H and J, which are dated the 6th Juna 1887 and 28th May 1891 and which are transactions in which mirasidars have asserted their right to the site, along with other lands in the village, they are also of small value, though I cannot wholly reject them in the consideration of the evidence. I thick, therefore, the opinion of the lower Courts, that the above documents and the oral evidence do not prove the plaintiffs' title, must be accepted in second appeal. The only remaining question for consideration is, whether, as mirasidars of the plaint village in the Chingleput district, the plaintiffs had full ownership title in the plaint site and, in consequence of such full title, the Government owned no such right in the site as could enable the Government to grant the same on darkhast to others. Full and lengthy arguments have been addressed to us on the question of the nature and extent of mirasi rights. Most of the public records and the earlier judicial pronouncements on the question of mirasi rights are found entered in Huddlestone's Mirasi Rights, I think, however, that reference to these old documents can only be a matter of academic interest at present. There has not been much continuity of policy or consistency in the declarations of policy by the Government till about 1875. But, from about forty years ago, the Government have consistently been claiming that they have got a paramount right over oberinattam sites and other communal lands oven in mirasi villages and that they were entitled to grant them to applicants, so as to extinguish the rights and privileges (if any) of mirasidars in any such site. Mirasi right seems to have prevailed formerly in the Chingleput, Arcot, Tanjore, Trichnopoly and Tinnevelly Districts. So far as the Tanjore, Trichinopoly and Tinnevelly Districts are concerned, the Government ceased to call moat of the ryotwari holders of land in those districts as mirasidars several ears ago and they are now called merely ryots. Most of the bigger ryots, who call themselves still in documents as mirasidars, especially in panguvali villages, have long ceased to claim any rights in immemorial wastes and communal lands and the Government has been, it is well known, exercising full rights as owners in respect of such lands without serious objection for several years past. It is only in the Chingleput district that the question is being raised from time to time, even in comparatively recent dates. I think we are bound by the later pronouncements of this High Court as regards the nature of mirasi rights in the Chingleput district and I, therefore, do not propose to consider the cases which had been decided before the Full Bench decision reported in Sakkaji Rau v. Latchmana Gaundin. The judgment in that case goes pretty fully into the history of the question of mirasi rights. The appeal in that case was twice heard (the second time on review). It is clear from that decision that the extent of the mirasi right in one village was not the same as that of the mirasi right in another village even in the same district. The opinion of Sir Thomas Munro is entitled to very great weight in connection with land tenures. In his minute of the 31st December 1824, Sir Thomas Munro expressed his belief that, by the usage of the country, the Government possessed the absolute right of disposing of the waste as it pleased in villages which were mirsai as well as in those which were not. On the 24th July 1839, Mr. Freeze, the Collector of Chingleput, asked for an expression of the views of the Board as to the rights of the mirasidars and especially, whether they had the right to sell poramboka and immemorial waste and thought that, “as regards poramboke and immemorial waste, their rights extended no further than to the privilege of grazing their cattle on them when waste and receiving the coopatums when cultivated.” The Board replied to Mr. Freese that “the mirasidars could not sell immemorial waste, but that their rights were confined to grazing and cutting firewood and similar common privileges, but that these must give way to any proposition ensuring the extension and realization of the public revenue.” In 1841, the Provincial Court ruled that “the mirasidar was entitled to engage for the cultivation of waste in preference to a stranger.” In 1875, the Government passed proceedings that if an immemorial waste is given to other than mirasidars, the grantee should pay the usual swatantram to the mirasidars and the mirasidars has no other rights. By the decision in the above a Sakkaji Rau v. Latchmana Gaundan, it was held that, as regards even the rights to the swatantrams, when strangers are introduced by Government as cultivators of waste lands, the mirasidars should in each case prove the existence of such rights and there could be no presumption that they are entitled to such swatantrams. As I understand the Full Bench judgment in Sakkaji Rau v. Latchmana Gaundan, it established the rights of Government to at immemorial waste lands over the heads of mirasidars to others, reserving only the right in the mirasidars to get swatantrams from persons let in by Government, provided the mirasidars could establish by evidence the existence of a custom to get swatantrams, the decision reserving also the privilege of the mirasidars to out branches from trees on immemorial waste lands, etc. and to cut firewood, etc., so long as the lands remained such waste. I need hardly say that, as regards communal poramboke lands, the rights of Government cannot be less extensive than their rights in immemorial wastes. I shall now at once come down to Sivantha Naicken v. Nattu Ranga Chari morely remarking by the way that no case decided by this High Court has been quoted before us between Sakkaji Rau v. Latchmana Gaundan and Sivantha Naiaken v. Nattu Ranga Chari which is in conflict with the decision in Sakkaji Bau v. Latchmana Gaundanti. One case decided by the Tiruvallur District Munsif has been quoted to us. The learned District Munsif, who decided that case, was the late lamented Mr. V. Swaminatha Ayyar. His judgment, I need not say, is a very able and learned one. In that case, however, it was found as a fact that the pattam sites then in dispute had been in the actual occupation of the mirasidar and his ancestors for more than sixty years before suit; sea page 25 of the Printed Papers, lines 3 to 6, With respect to the judgment, Exhibit N, therefore, I need only say that the Full Bench decision in Sakkaji Rau v. Latchmana Gaundan must be followed by us in preference to Exhibit N, even if the observations in Exhibit N were not obiter. Coming then to Sivantha Naickn v. Nattu Ranga Chari that case was decided by Mr. Justice Davies and Mr. Justice Benson, two very learned Judges who had much revenue experience in the early days of their service. The learned Judges say in that case that the rights of mirasidars be immemorial waste, apart from their preferential right to cultivate, appear to be confined to grazing cutting firewood and similar common privileges, as stated by the Board of Revenue in the passage in this Court's judgment in Sakkaji Rau v. Latchmana Gaundan, but those rights were liable to be extinguished by the Government alienating the land. This decision is an authority directly in point. In The Secretary of State for India v. M. Krishnayya it was held that even in South Canara, as regards which district Sir Thomas Munro used the expression that “all and is private land,” the general presumption is that forest and immemorial waste land is the property of the Government. The three learned Judges forming the Pall Bench, namely, the learned Chief Justice Davies and Benson, JJ., quota with approval the minute of Sir Thomas Munro of the 31st December 1824, penned by him as Governor of Madras and already referred to by me. The learned Judges say that when Sir Thomas Munro's experience reached its ripest maturity, he held that the waste lands in mirasi villages in Arcot did not belong to the mirasidars as Mr. Eillis thought and that the Sirkar, from ancient times, has everywhere even in Arcot as well as other provinces granted waste in inam free of every rant or claim, public or private and it appeared in all such grants to have considered the waste as being exclusively its own property. And his opinion is again quoted that “In all villages, whether miras or not, the inhabitants reserve to themselves the exclusive use of the waste. But this right is good only against strangers, not against the Cirkar (Sirkar) which possessed, I think, by the usage of the country, the absolute right of disposing of the waste as it pleases in villages which are miras as well as in those which are not.” “The State might grant those waste lands on such terms as it deemed fit and found practicable.” I think this Full Bench case in The Secretary of State for India v. M. Krishnayya also establishes the Government's paramount right over waste and communal land so as to extinguish all rights and privileges (if any) of the mirasidars in such lands. See also Subbaraya v. Krishnappa decided by Collins, C.J and Parker, J., in which it was held that the principle to start from is, that “waste lands belong to the State.” I am, therefore, of opinion that it is now too late to set up in any village in the Madras Province that the Government has no right to grant reaidantial sites called gramakantham or gramanattam or cherinattam to applicants, so to extinguish the rights (if any) of persons calling themselves mirasidars. It has been held in several cases that the word “ownership,” when applied to land, is a term of very loose signification in India. The Government is styled by some authorities as the only owner of all lands in India. Other authorities say that Government is entitled only to impose a land tax and that the ownership in cultivated lands vests in private person?. Some writers treat zamindars as owners of the zamindari lands, while others consider zamiadars as merely farmers of revenue, entitled to get the customary rent, the cultivators of the soil being the real owners of the land and not merely lessees under the zamindar owners. All these fights are mostly disputes about words. The substance of the question in the present suit is whether the Government has the right to grant communal residential sites in mirasi villages to applicants for such sites, so as to extinguish the privileges of mirasidars, and, whether you call this right as flowing from its ownership of the sites or from its paramount sovereign right to make such grants, is not, in my opinion, of any practical importance.
I think that this question ought to be decided in favour of Government on the principle of stare decisis. There can be no doubt that in 1872, the then Government (the personnel of the Government usually changing every five years) thought that mirasidars in purely mirasi villages were the owners of even the nattam poramboke lands in the villages. In the Government Order No. 1684 of that year, the Government say: “In purely mirasi villages, where the entire area belongs to the mirasidars, the gramanattam, no doubt, appertains to them equally with the other porimboka, but these cases are exceptional.” But in 1886, the Government found that they had ignored their own prerogative too much, and, when the Revenue Board pointed it out, the Government approved of the Board's opinion. After the date of this Government Order of July 1886, there were the Board's Proceedings of September 1887 and they include a very frank letter of Mr. Johnson. Mr. Johnson says: “The mirasi bugbear is destined gradually to the a natural death if left to the ordinary operations of time” Between 1872 and 1886 we had Sakkaji Rau v. Latahmani Gaundan (it must have been decided about 1880) which recognized the Government's paramount prerogative. As I said already, the mirasi bugbear seems to have died a natural death (using the words of Mr. Johnson) in all the other districts except Chingleput. In Chingleput, the preferential right of the mirasidar as a legal right to get darkhast grant from the Government for immemorial waste and his right to swatantrams (calculated as a fraction of the assessment) when such immemorial waste was allotted to any other person than the mirasidar, these two rights seem to have been recognized till recently and hence the efforts of the mirasidara to claim full ownership rights have not ceased even after Sivantha Naicken v. Nattu Ranga Chari. As said in the letter of the Special Settlement Officer, Mr. G.A.D Stuart, “the possession of special privileges by particular classes is an anachronism at the present day and the mirasi system is destined to go the way of all anachronisms. Even in the thirty years since the last settlement, mirasi right seems to have died out altogether in many villages it is still fairly vigorous, however, in many places, but patience and time are all that are necessary to see the end of it.”
In 1890, the Government passed Revenue Proceedings No. 704, dated the 3rd September. In paragraph 5 of that letter they say: “It is true that in 1872, the Government declared that in the exceptional case of purely mirasi villages, where the entire area belonged to the mirasidars, the village site would also appertain to the same body, but the opinion expressed was stronger in appearance than in reality, for it formed part of an argument contesting the view of the Board that village-site was the communal property of the villagers and did not appertain to Government. In any case his Excellency the Governor in Council is not two prepared to subscribe to the above dictum and it is observed that when, in 1886, the Board challenged the correctness of the order of 1872, the Government allowed the challenge to pass unnoticed. The said order has thus practically become a dead letter in so far as it acknowledges the claims of mirasidars to village-sites, and, in the revised edition of the Standing Orders, the words mirasi villages' have been omitted from Standing Order No. 37 (formerly No. 39).” I think that, except in the matter of preferential claims to grants on darkhas of immemorial waste and except as regards the right to claim swatantrams and the right to gather leaves and firewood from trees growing on waste and poramboke lands not yet granted by Government, it is inexpedient to revive these mirasi claims, which were in various stages of disintegration before 1890 and which were never recognized by Government after 1890. I should like to hold that such claims must be taken to have been finally killed by Sivantha Naicken v. Nattu Ranga Chari. It is better to treat the present litigation as “the last flickering up of a dying fire” and as the final ineffective “expiring gasp of protest” of the mirasi right fighting in its last ditch. (Preferential claims, however, of mirasidars to occupy waste lands in their villages for cultivation and, in Chingleput, to levy a fee from non-mirasidars who may take up land for cultivation have been recognizad by Government even in September 1892: see Proceedings No. 1010 A, Government of Madras, paragraph 4.) Those two rights and the other rights mentioned in Sivantha Naicken v. Nattu Ranga Chari may be still considered to be alive and all the other rights as dead. It is true that till 1886, the opinion of Mr. Ellis about mirasi rights was treated as more in accordance with the customary law than the opinion of Sir Thomas Munko. It is also true that the High Court of Madras was considered by the Government to have so far committed themselves to opinions in favour of the mirasidars that it was safer not to contest the matter by a frontal attack in the High Court itself, but to have it fought out in the District Courts. As I have already and however, Sakkaji Rau v. Latchmana Gaundan, which was decided about 1880 by the Madras High Court, did not unconditionally recognize the mirasidar's right, but held that the mirasidar should prove even the customary right to swatantrams where it is denied. There can be no doubt that, till 1886, the inclination of the High Court was to hold that mirasidars had ownership rights in immemorial wastes and in pattam sites also. But the Revenue Board and the Government from 1886, were determined, by all legitimate means, to establish the paramount rights of Government to grant nattam poramboke sites and also to deny all other rights claimed by the mirasidars, except the right of preference when grants to immemorial wastes are made and to obtain swatantrams if grants are made to others than mirasidars and similar rights. It must be admitted that this resolve of the Board of Revenue and of the Government so far as nattam sites are concerned was arrived at, not for the purpose of obtaining more revenue or other pecuniary benefit, but in the interests of the public, especially of the depressed classes. As my learned brother has put it in his judgment: “That these rights of the mirasidars are inconsistent with the welfare of the people may probably be true.” Subsequent to 1886, we have got at least two judgments of this High Court, one being the case in Sivantha Naicken v. Nattu Ranga Chan and the other, in The Secretary of State for India v. M. Krishnayya, which two decisions, it seems to me, clearly follow the opinion of Sir Thomas Munro in preference to the opinion of Mr. Ellis. The observation in The Secretary of State for India v. M. Krishnayya (which is a Full Bench case decided by the Chief Justice and Justices Davies and Benson) is that “the right of the Government to waste land has now, after protracted contest, been established against the mirasidars.” This seems to indicate that the decisions till 1886, which favoured the mirasidars, were given during the first stages of the contest and that the final battles had gone in favour of the Government. As remarked by my learned brother in his judgment, it may be that this observation rests upon the results of a comparatively fewer number of cases decided by the High Court after 1886 than the number of cases decided before 1886 which held the other view. In the case in Natesa Grammi v. Venkatarama Reddi the contest was between the zamindir and the mirasidars and the paramount right of the Government as ruling authority was not in contest. As between the zamindar and the mirasidars, the evidence in that particular case seems to have (in the opinion of several Lower Courts) established the rights of the mirasidars in poramboke lands and the High Court was “not prepared to interfere with the finding of fact at which nil the Lower Courts have arrived at.” The Judgment in Natesa Gramani v. Venkatarama Reddi (to which Benson, J., was a party) does not dissent from the observations in Sivantha Naicken v. Nattu Ranga Chari) and The Secretary of State for India v. M. Krishnayya (to which decisions also Benson, J., was a party), but, so far as the relative rights of the zamindar and mirasidars were concerned, Sivantha Naicken v. Nattu Ranga Chari decided in one way on the evidence in that case and Natesa Gramani v. Venkatarama Reddi decided the other way. I find myself unable to hold that Natesa Gramani v. Venkatarama Reddi has, in any way, weakened the authority of Sivantha Naicken v. Nattu Ranga Chari, of the Full Bench decision in The Secretary of State for. India v. M. Krishnayya. Under these circumstances, I do not see my way to hold that the mirasdars have got higher rights than are recognized in Sivantha Naicken v. Nattu Ranga Chari and The Secretary of State for India v. M. Krishnayya, without practically overruling those decisions. My learned brother's inclination being against the opinion expressed in those two decisions and as the question is a very important one, I concur with him in referring the question of the extent of the mirasidar's rights to nattam porambake sites to a Full Bench.
On this reference—
Hon. Mr. S. Srinivasa Ayyangar, the Acting Advocate-General for the appellants Nos. 2 to 5.
A. Swaminatha Ayyar for the appellants Nos. 3 to 5.
V. Ramesam, the Acting Government Pleader, for the eleventh respondent.
The others did not appear.
This Second Appeal again coming on for hearing the Court expressed the following Opinions:—
Wallis, C.J:— The question referred to us is whether in a mirasi village the mirasidar is entitled to recover possession of a house site held under a patta from Government and, to show what it involves, it may be well to state at once the circumstances in which it arises in the case under appeal. On the 16th November 1894, Mr. George Stuart Forbes, acting Collector of Chingleput, passed orders on certain petitions praying for an extension of the cheri nattam, or part of the village-site reserved for pariahs, in the village of Mannur in the Saidapet taluk not far from Madras. He began by observing that out of the whole Survey No. 14 A of 23 acres which was classed as village-site, 97 cents, or nearly 1 acre, identical with Survey No. 45 in the paimash or old survey, was shown in the paimash account as cherial pizhakkadi or reserved for pariahs. There had, he went on to say, been no ??? on this site by any mirasidar since the date of the paimash (apparently about 1845) and the only building on it was an arrack shop. He did not interfere with this, but stated that the rest of the plot was available for sites in extension of the paracheri or pariahs' quarters and directed it to be laid out in streets and house-sites in such a manner as to facilitate sanitation and the convenience of the residents. As regards any claims from mirasidars, he merely observed that the short usurpation by the mirasidars in recent times which is supported by the entry in the adangal of ‘Seshachellam Chetty (plaintiff) and others’, is invalid and cannot be recognized.” The adangal (Exhibit G) is described as the village account of lands held in the village according to survey numbers. The Paimash Register of 1845 only contained the names of actual occupiers of sites in the nattam, as appears from Exhibit X, but in 1836 it came to light that at some time or other the names of the mirasidars had been inserted in the adangal as well as the names of the actual occupiers which alone appeared in the Paimash Register and had also been inserted as owners of the unoccupied sites as regards which no names appeared in the Paimash Register and this was apparently what Mr. Forbes was alluding to in speaking of the recent usurpation. Exhibits I to VIII are applications for sites put in immediately after the Collector's order by residents in the paracheri which, the endorsemants show, were grantad or refused according to the merits. This was in 1894 and early in 1895 and the present suit was not brought until January 1905 ten years later. The plaint alleges that the plot was the property of the plaintiffs and that they constructed and rented to the thirteenth defendants a leaf-roofed shop marked B in the annexed plan; that the defendants on 17th Octobar 1903 took wrongful possession of the plot and erected the shed marked C; and that defendants Nos. 1 to 12 with the thirteenth defendant afterwards dismantled the shop B and erected the sheds D and E. Defendants Nos. 1 to 12 pleaded that the site was not the property of the plaintiffs but of Government who had granted the sites thereon. They alleged that the buildings G (a mission hall) and E (a sundries bazaar) had always been in existence and that D had been erected three or four months previously as the shop B was in a ruined state. The thirteenth defendant pleaded that he was only a servant of the owner of the toddy shop and the latter was added as fourteenth defendant but remained ex parte. The District Munsif at first dismissed the suit on the ground that the Secretary of State in Council was not a party, but on appeal the plaintiffs undertook to make him a party and this having been done, the Collector filed a written statement on his behalf as fifteenth defendant in which he alleged that the plaintiffs have not and never had any title to the property and never occupied it in a manner inconsistent with the rights of Government and that Government had exercised rights of ownership over it to the knowledge of the mirasidars. The entries in the village accounts for some years by officers who were themselves mirasidars were, it was alleged, only paper entries and did not affect the proprietary right of Government. In his judgment the District Munsif observed that in the Settlement Register Exhibit F (1875) the names of the first plaintiff and the other mirasidars were not entered against Survey No. 14-A, the village-site and thenceforward they had never taken any steps to assert the right to the land and have it included in their pangu lands. The District Judge took the same view and observed that the plaintiffs had never cultivated the land and had put up the thatched but B in 1902 long after Government had assigned the sites. They accordingly dismissed the suit but held it was not barred, as it was instituted within 12 years of the grants made under Mr. Forbes' orders at the end of 1894. The result of the findings would therefore appear to be that the site in question was waste land over which the plaintiffs never exercised any rights of ownership until some years after it had been allotted by Government in extension of the cheri or pariahs' quarters.
The Privy Council have very recently pointed out in Secretary of State for India v. Bai Rajbai that, as regards lands such as these which have been Coded by native rulers, the only enforceable rights are those conferred by the Crown by express or implied agreement or by legislation; but in order rightly to appreciate the action of the Crown or Government, it is necessary to know something of the pre-existing state of things. We have not been referred to any critical discussion of the legendary settlement of Tondaimandalam, as this part of the ??? was called, by 300,000 Vellalas from the west coast of India which is referred to in the judgment of Sankaran Naik, J. and had been dismissed as fabulous by Sir Thomas Munro in his well-known minute. What we do know is that this district was the seat of an ancient civilization and that Kanchi or Conjeeveram was the capital of the Pallava dynasty who flourished until their overthrow by the Cholas about the end of the ninth century; and that it was afterwards one of the principal cities in the Chola kingdom, which again was absorbed in the Vijianagar Empire in the fifteenth century. That Empire had fallen into decay, when in the middle of the seventeenth century one of its nominal dependants granted the East India Company four mirasi villagea on which Fort St. George and the adjoining White and Black Towns, as they were then called, were erected. To these was added some years later, the shrotriyam village of Triplicano; and after the advent of the Muhammadans three more mirasi villages, which are now included in the municipal limits of Madras, were granted in 1694 during the reign of Aurangzib. Further grants were made early in the eighteenth century of villages with what are now within the municipal limits and beyond; and finally the whole district of Chingleput as it now is was assigned by the Nawab of Carnatic to the Company in return for their services against his enemies and became known as the jaghir. It was subsequently laid waste by Hyder in his invasion of the Carnatic and it was only some years after 1784, when peace was restored, that the question with which we are now concerned came to the front in connection with the proposed introduction of a permanent settlement on the lines on which Lord Cornwallis had carried out the Permanent Settlement of Bengal and it became necessary to investigate the position and rights of the mirasidara in relation to the land. If they were the real owners of the land, it could not be parcelled out among zamindars under Regulation XXV of 1802, which reproduced the Bengal Regulation of 1793 and later, when the idea of a permanent settlement was given up and the system of ryotwari settlement with the individual cultivator was coming into favour, this alleged ownership of the mirasidars was again an obstacle to the introduction of settlements with the actual cultivators. The result of the controversy in the early years of last century was that the settlement was made with the mirasidars and not with zamindars or with the actual cultivators; but many questions such as those with which we are dealing were left outstanding and lapse of time has not made it any easier to settle them in spite of the lengthy discussions which are to be found in the Mirasi Papers which go down to 1864 and in the further papers which have been specially printed for this case.
It is unnecessary to go into old controversies as to ownership of land in India as to whether, as has been sometimes held, the State was the owner of all land which it had not actually alienated and the cultivators were merely tenants under it, or whether the cultivators are the owners subject to the right of the State to share in the produce, or whether, as James Mill thought (Fifth Report: edition of Higginbotham & Co., page 816) Government and the cultivators should be regarded as “joint tenants” by which he probably meant co-owners. In 1796 (Mirasi Papers, page 26) the Madras Government went so far as to assert it to be the great feature in all the Governments of India that the Sovereign is she lord of the soil and this is repeated in the preamble to Regulation XXV of 1802. As regards waste lands at any rate it seems clear, as held in The Secretary of State for India v. M. Krishnayya, that by the Muhammadans waste lands in conquered countries were always held to be the property of the State. It may be taken then that the principle to start with generally is that in India waste or unoccupied lands at any rate belong to the State and the Madras Legislature has in Madras Act III of 1905, which is modelled on Bombay Act V of 1879, given statutory force to this rule which had previously been held applicable to lands of this character.
The question then is, whether unoccupied lands in mirasi villages in this district and more especially the unoccupied lands set apart for house-sites in the villages, form an exception to the general rule and were recognized as private property when or after the British Government succeeded to the previous rulers. The distinctive thing about the district of Chingleput is the persistence until very recent times of the system of joint cultivation of the village lands by the village community of mirasidars, the actual cultivation being done by a dependent population working under them. This is a stage of agricultural development through which various peoples have passed and of which traces are to be found in England, Germany and Russia, both European and Asiatic and even in Japan. (See Lewinski's Origin of Property, London, Constable & Co., 1913); but it by no means necessarily connotes the ownership by the cultivators of the adjoining waste or unoccupied lands, or implies that the cultivators have greater rights in respect to them than inhabitants of other villages in the neighbourhood where the system does not prevail, as was pointed by Sir Thomas Munro. The right of the State to admit cultivators to uncultivated lands for the purpose of realizing its revenue which is a necessary incident of the immemorial revenue system and is recognized in the recently published Arthasastra of Kautilya dating from 300 B.C, V. 2, C. 1, s. 47, necessarily involves the right of the State to provide such cultivators with sites in the nattam. Nor is it a necessary inference that the village community owned all the land within the boundaries of the village, for as observed by Mr. Hodgson in the Report on the Survey of Dindigul (1) Dote (Fifth Report; edition of Higginbotham & Co. at page 607): “the whole lands of a province in India whether cultivable, areble, waste, jungle or hills have been from time immemorial apportioned to a particular village so that all lands are within the known boundaries of some village. The total area of all villages forms the whole landed surface of that particular province.” And there is satisfactory evidence, as appears from Mr. S. Krishnaswami Ayyangar's Ancient India and Mr. Vincent Smith's Early History of India, third edition, 1913, that under the Cholas the lands and cultivation were carefully surveyed and holdings registered at least a century before our Domesday Survey.
It is perhaps hardly safe to make any positive assertion about the ownership of the nattam and other unoccupied lands in periods so remote as to which the evidence is so scanty, but the great irrigation works and temples which have come down to us from this period and were probably produced by forced labour, point to active intervention and control by the State and do not support the conclusion that the village cultivators, whether cultivating jointly or individually, were regarded as the owners of land which they had not reclaimed to cultivation in the absence of evidence of user or recognition.
As evidence of recognition it is said by Sankarayya in the Mirasi Papers that former rulers were in the habit of purchasing lands from the villagers to present them to temples and in the three volumes of Dr. Hultzsoh's South Indian Inscriptions there are inscriptions nearly a thousand years old that appear to bear this out, but it does not appear that the lands so acquired were waste.
Nor is such a view supported by what we know of the history of the mirasi villages now included in the municipal limits of Madras which, as already mentioned, were acquired in the seventeenth century and the years immediately following long before the present controversy arose. The three bulky volumes, recently brought out by Colonel Love for the Government of India under the title of “Vestiges of Old Madras,” contain a digest of all that is to be found in the records about the city from its foundation down to the end of the eighteenth century; and it is remarkable that they do not appear to support the claim of the mirasidars to the waste lands of the villages. Such references as there re seem to show that the Madras Government treated all waste lands as at its disposal and the claim would appear not to have been disputed. See volume I, pages 170, 579-80; volume II, pages 127, 193 and 194; in volume II, page 505, under the year 1763, we find mention of numerous leases granted by the Company of large areas for the erection of the garden houses that form a feature of the city; and Mr. Ellis' answer in the Mirasi Papers to the ninth question put to him suggests that, when he wrote in 1814, a great part of the village land had been converted into gardens in this way; and in the suit in the Supreme Court in 1808, which will be referred to later, Sir Thomas Strange, C.J, stated that the only cases as regards mirasi villages which came before the Mayor's Court in the eighteenth century dealt with another question.
The fact relied on by Sankaran Nair, J., that in the conveyances of the eighteenth and early nineteenth centuries which are collected in the Mirasi Papers the transferor purports to convey not only his cultivable lands but also all his rights in the nattam and the waste lands which had not been divided and in fact deals with them as the subject of co-ownership is of course to be considered, but as against the State which was the other party interested such claims appear not to be entitled to much weight except in so far as they are supported by actual user or recognition.
Coming now to the views expressed by Mr. Place and later by Mr. Ellis, Collector of Madras and his Sarishtadar Sankarayya in answer to the questions put by Board of Revenue in 1814 (Mirasi Papers, page 155), though they were no doubt well warranted in championing the mirasidars and asserting their proprietary interests against proposals to ignore them either in favour of zamindars or of the actual cultivators, it by no means follows that the mirasidars were the owners of the waste lands in the village as well as of the lands they had reclaimed to cultivation. Sankarayya a successful official of those days, who, as was pointed out by my learned brother in the course of the argument, was almost certainly a mirasidar himself, no doubt says distinctly that they owned the waste, but Mr. Ellis speaks only to a restricted right of user falling short of full ownership.
Eventually, even as regards cultivable waste, the mirasidar's ownership has not been fully established and though they had and still have a preferential right to such lands, yet on failure to cultivate them they are liable to have cultivators put in by Government. Mr. Ellis and Sankarayya claim that they were entitled to be restored within 105 years on making compensation, but that claim has not been substantiated. No doubt their claim to receive swatantrams, or payments from the newly admitted cultivators, is evidence of their claim to ownership of the waste which they had reclaimed to cultivation; but, according to the decision of the Full Bench in Sakkaji Rau v. Latchmana Gaundan, such swatantrams are not generally payable but only on proof of custom. Further Mr. Ellis' views have never won complete acceptance. In 1822 (Mirasi Papers, page 423) the. Court of Directors found fault with the Madras Government for having printed and circulated to the service the answers of Mr. Ellis, as a question of this kind should be decided not upon one man's opinions alone but upon a consideration of all the evidence which could be obtained. They considered the course adopted would to a great degree have the effect of imposing upon the service the opinions of Mr. Ellis as the authoritative conclusion of Government. The Government in reply disclaimed any such intention and we find the Board of Revenue treating the question of the extent of the mirasidars' right in waste lands as an open one and framing a fresh series of questions for Collectors on the subject (Mirasi Papers, page 427) on the 11th December 1823. The Government of Sir Thmas Munro did not I pass any orders on these proceedings so that fresh queries ware never sent to Collectors; and on 31st December 1824 Sir Thomas Munro wrote his well-known Minute on the State of the Country and the Condition of the People, in which speaking with his wide experience gained by him as a settlement officer in various districts of Southern India as to the system prevailing under the Vijianagar and Muhammadan rulers he incidentally contested nearly all Mr. Ellis' opinions and conclusions (Selections from the Minutes of Sir Thomas Munro, Ed. Arbuthnot, Madras, Ed. Higginbotham, 1886, page 238). The question discussed by Sir Thomas Munro no doubt related to the cultivable waste rather than to waste which was excluded from cultivation either as unfit or as reserved for other purposes; but there can be no doubt that he would have expressed himself as strongly as regards the ownership of waste excluded from cultivation.
The Paimash Survey and Accounts of the district appear from the District Manual to date from the years immediately following and the extract from the Paimash Accounts Exhibit X exhibited in this case and dating it is said from 1845, shows that, while the name of the owner is given in the case of each occupied site in the nattam, no name is entered against the unoccupied portions, which goes to show that the private ownership of the unoccupied nattam was not then recognizad. In 1839 the Board (Mirasi Papers, page 452) expressed the opinion “that as regards immemorial waste the rights of the mirasidars are confined to the pasturing of their cattle, the cutting of firewood, etc. and similar common privileges, but these must always give way to any proposition ensuring the extension and realization of the public revenue.” The passage is important as it was cited by the Full Bench in Sakkaji Rau v. Latchman Gaundan and adopted as laying down the true rule in Sivantha Naicken v. Nattu Ranga Chari.
We are not however immediately concerned in this case with the general question of she ownership of waste lands but with the ownership of part of the nattam or village-sits. The nattam or area reserved for house-sites is a feature of every village, zamindari, ryotwari and mirasi alike and consists of un-assessed land set apart for the erection of houses and for the adjoining backyards. In Dr. Haltzsch's South Indian Inscriptions, volume II, Part 1, No. 4, we find the urnattam and paracheri, or pariahs' quarters, enumerated with tanks and burying grounds as free from assessment and there are other inscriptions of the same kind showing that a portion of the site was set apart for pariahs or untouchables from very early times. So far as the inscriptions enable us to judge, the affairs of the village appear to have been managed by subhas or assemblies of leading men in the village who were probably left to allot house-sites as the occasion arose without interference such a power of allotment would not connote ownership, but might of course give rise to it if it led to the sites being dealt with as private property and sold or leased as such.
As regards waste lands generally, the Mirasi Papers contain discussions as to whether the mirasidars were entitled to compensation for waste lands acquired for publia purposes and that such claims were in some instances admitted appears, not only from the instances given, but also from the fact mentioned in the Chingleput District Manual and also by Mr. Stuart in his Report in 1909 that Government in 1870 decided to refuse any longer to pay compensation for such lands. The case which subsequently came before Sir Charles Turner will be considered later. As regards the nattam itself, in 1856 (Mirasi Papers, pages 538 and 553) the question was the subject of a strong divergence of views between the Board of Revenue and the Government of the day which favoured the mirasidar's claims and went so far as to dispossess in his favour a stranger whom the mirasidar had sued unsuccessfully in the Civil Courts. The papers were sent home, but the Court of Directors in their reply did not commit themselves to one view or the other.
In 1869 Government framed Darkhast rules (as to applications for grants of land) in the district in which the prior claims of the mirasidars were recognized. Rule 13 however provided that tanks, threshing floors, burial grounds, etc., should not be given away on darkhast and concluded “applications for gramanattam or village-sites shall not be entertained.” In 1872 as appears from G.O No. 1684, dated 16th December 1872, the Board called for returns from Collectors as to the practice in their districts of giving gramanattam land as house-sites to persons who were neither pattadars nor actual cultivators; and the answer from Chingleput was that it was granted to all applicants on a fixed scale. This goes to show that the mirasidars were, to say the least, not then very conscious of the rights now claimed for them. Commenting on the answers returned, the Board put forward the view that the gramanattam in villages is the communal property of the villagers, a position which may be taken up with regard to non-mirasi as well as to mirasi villages. But the Government of the day were not prepared to go so far, as they were of opinion that the old hukumnamas showed that enjoyment of the gramanattam was subject to regulation by Government. These hukumnamas no doubt related to non-mirasi villages, for as already observed, whatever the ownership of the nattam, the mirasidars were probably left to allot sites in the nattam according to requirements and this was probably not interfered with by the Muhammadan rulers who generally rented the villages to the mirasidars themselves at a fixed rental, except in so far as they may have granted villages in inam. The District Manual contains a long list of inams, but there are no particulars of the dates or terms of the grants. In passing orders on this occasion asserting the title of Government in the nattam in ordinary villages, Government made an exception in favour of purely mirasi villages where they said “the gramanattam no doubt appertains to the mirasidars equally with the other poramboke.” Accordingly they issued rules on the subject excepting zamindari and mirasi villages and villages which were private property, although the Collector's answer showed that the grants of nattam had been made by Government without opposition in Chingleput. Two years later however, when the settlement of Chingleput was effected, an entry was made in the settlement register of each village (cf. Exhibit E) that in the gramanattam no new enclosure was to be made or new building erected without permission in future, which shows that the nattam was not then treated as completely at the disposal of the mirasidars.
The G.O No. 724, Revenue, dated 18th August, 1886, contains a Board's Proceedings rejecting the claim of the mirasidars to control the cherinattam in which the claims of the mirasidars are vigorously attacked on much the same grounds as have been urged before us and Government did not interfere with the Board's decision but recorded the proceedings without remark. In 1890 Government followed this up by directing that in the adangal accounts, where in addition to the name of the occupier the name of the mirasidar was found, it should no longer be recorded. The Paimash Register of 1845, (Exhibit X) in this case, only gives the names of the owners of sites in actual occupation and does not show any owner against number 45 the suit land but merely describes it as the backyard of the cherimen. At some subsequent period the names of the mirasidars were entered as owners in the adangal account, not only of unoccupied sites like this, but also of the occupied sites. It was alleged that this had been done surreptitiously to create evidence of ownership and the mirasidars' names were struck out in cases where there was an occupier, but apparently were left in when the site was unoccupied. In these circumstances I cannot give the entries in the adangal accounts the weight that might otherwise attach to them.
The question came up again in 1892, when Government expressed themselves more guardedly observing “the question of the ownership of pariah house-sites is one of legal right and if the mirasidars have it they can only be expropriated by compensation.” Lastly we have the report of the Special Settlement Officer Mr. Stuart in G.O No. 2868, dated 19th October 1909, which shows that where the mirasi right is in the hands of a few, the claim to the village-site is still often kept alive and used for the purpose of keeping the rest of the population in subjection and that in other cases no attempt is made to enforce it.
Coming now to the decisions of the Courts—the judgment of Sir Thomas Strange in 1808 in the Tondiarpet Case (Mirasi Papers, page 127) shows that the right of the mirasidars to the village-site was proved in that case by abundant oral evidence to the satisfaction of the Chief Justice, who, however, observed that it did not appear and was not material in which respect, if any, the mirasidars were subject to the intervention of Government except for the Sircar share. The principle which was laid down and on which the judgment proceeded was that the nature of mirasi right was to be ascertained by user; and that still appears to me to be the governing test. In 1841 (Mirasi Papers, page 462) we have the judgment of Mr. Lewin in the Provincial Court of Chingleput in a suit to which Government was a party and did not appeal, in which as to cultivable waste the law was taken from Mr. Ellis' answers and Government were held to have no right to issue cowles of lands in mirasi villages which the mirasidars were willing to cultivate. This does not really amount to more than a recognition of the mirasidars' preferential right to cultivate and must now be read with the subsequent Full Bench decision in Sakkaji Rau v. Latchmana Gaundan. The judgment in 1849 of the Sudder Adder in Special Appeal No. 108 of 1844 (Mirasi Papers, page 486) is more directly in point, as it recognized the mirasidars as the hereditary proprietors of the soil including the nattam and laid down that, if a purakudi ceased to cultivate, he became a kasavargam and liable to pay rent for his backyard to the mirasidar who clearly had the right of ejection. The judgment in Special Appeal No. 186 of 1859 (Mirasi Papers, page 585) was also a suit in which the mirasidar was held entitled to evict the kasavargam tenant from a house-site which had been in his occupation for a great number of years on paying compensation for the buildings he had suffered the defendants to construct and occupy. The fact that these two cases are from Kumbakonam does not detract from their weight, as the rights of the mirasidars were fuller in Chingleput than in Tanjore. Coming now to the year 1882, in that year Sir Charles Turner, C.J in a suit to which Government was a party, upheld the right of the mirasidars to compensation for a place of waste land in the village of Vyasarpadi on the authority of Mr. Ellis and Mr. Sankarayya and there was no appeal from his decision. There was also a decree of the District Munsif of Tiruvallur in Original Suit No. 31 of 1894 in which the right of the mirasidar to the nattam was asserted though it was at the same time held that the mirasidar was liable to be assessed for cultivation on the nattam. There was no appeal and the papers suggest the Government was not anxious to bring the question before the higher Courts in the hope apparently that the mirasidars' claims would the out of themselves. In Sivantha Naicken v. Nattu Ranga Chari Davies and Benson, JJ., in Second Appeal refused to interfere with the finding of the lower Courts that the shrotriyamdar in that case, who stood in the place of Government and not the mirasidars of the village. Were entitled to the compensation for a piece of waste land in a mirasi village compulsorily acquired. There was evidence of user in the particular case, but the learned Judges laid down generally that “the rights of the mirasidars over immemorial waste (apart from their preferential right to cultivate) appear to be confined to grazing, cutting firewood and similar common privileges as stated by the Board of Revenue in 1839 in the passage already quoted in this Court's judgment in Sakkaji Rau v. Latchmana Gaundan; but those rights were liable to be extinguished by the Government alienating the land.” This passage does not however deal directly with the ownership of the nattam. In the South Canara forest case. The Secretary of State for India v. M. Krishnayya, Benson, J., delivering the judgment of the Full Bench again laid down that both under the Hindu and Muhammadan Governments waste lands belonged to the State and observed incidentally that the right of Government to the waste lands bad now after protracted contest been established as against the mirasidars on the East Coast, but this point did not arise for decision. We have also been referred to the decision of Benson, J. and myself and in Natesa Gramani v. Venkatarama Reddi(4), where we upheld the finding of the two lower Courts on the evidence that a certain tank in a shrotriyam mirasi village belonged to the mirasidars and not to the shrotriyamdar, or Government assignee. I do not think that Benson, J., who wrote the judgment intended to lay down anything inconsistent with the opinions expressed by him in Sivantha Naicken v. Nattu Ranga Chari and The Secretary of State for India v. M. Krishnayya; the decision in Sivantha Naicken v. Nattu Ranga Chari was explained as having proceeded on the facts proved as to the particular village and not as laying down as matter of law that poramboke lands in mirasi villages must necessarily be the property of the zimindar, that is to say, of Government or its assignee.
I have now dealt with the most important aspects of the question and it only remains for me to formulate my conclusions in this important and difficult case. The village nattam is land in the village set apart from time immemorial for house-sites and cannot be used for any other purpose so long as it retains its character as nattam. On the evidence with which I have dealt I am not satisfied that before the establishment of British rule and especially under the Muhammadan Government, unoccupied nattam was generally recognized by Government, as the private property of the mirasidars, though no doubt where, as was frequently the case, they were themselves the renters of the village, the control would remain in their hands and they may in individual cases have exercised full rights of ownership over it.
The next question is—has the mirasidars' ownership been established subsequently either by Government recognition or by judicial decision in the proceedings and cases to which I have referred? As regards recognition, it cannot be said that the Board of Directors, or their successor, the Secretary of State have ever recognized the mirasidars as owners of the nattam and the varying views of successive Governments in Madras on a subject which has never ceased to be controversial do not appear to me to establish any general right based on recognition.
As regards the cases, some of the early decisions are not reconcilable with the observations in recent cases such as Sivantha Naicken v. Nattu Ranga Chari and the Secretary of State for India v. M. Krishnayya and, if I may say so with respect, appear to proceed on an unreserved acceptance of the views of Mr. Ellis and Sankariah which appears to me to be an unsatisfactory basis even the unreported judgment of Sir Charles Turner is open to this observation. The question is one of great difficulty owing to the unsatisfactory character of the materials on which we have to base our judgment; but on the whole after the fullest consideration of the case in all the aspects that have been presented to us, I do not think that these materials warrant us in laying down the broad proposition that unoccupied nattam in this district is the private property of the mirasidars and I am of opinion that the question should rather be decided on the evidence in each case and with special reference to user which will probably not be found to be uniform. This was to some extent the test recognized in Natesa Gramani v. Venkatarama Reddi one of the latest decisions and a similar course was adopted by Sir Charles Turner and the other members of the Full Bench who decided Sakkaji Rau v. Latchmana Gaundan as to the mirasidars' claim to swatantrams which in effect involved their claim to ownership of the cultivable waste, that is to say, of the land in the village which they had presumably reclaimed to cultivation but had ceased to cultivate, a claim which was at least as strong as the present claim to the unoccupied nattam. In this case, as in that, user must in my opinion be the governing consideration.
I may add that the preferential right of the mirasidars to cultivable waste, which is now well established, does not appear to me to be of itself a sufficient foundation for the general proposition that they are entitled to eject inhabitants of the village from portions of the unoccupied nattam granted to them by Government, though they may be entitled, as incidental to such right of preferential cultivation, to the allotment of sites on the unoccupied nattam when necessary.
In the result, I am of opinion that there is no general presumption of the mirasidars' ownership of the nattam in the absence of evidence of user, but that where user is shown the presumption of ownership readily arises.
Ayling, J.:— The question propounded for us to answer is as follows:—
“Whether, in a mirasi village, the mirasidar is entitled to recover possession of a house-site held under a patta from Government.”
Slightly amplified I take its meaning to be this:
Where in a mirasi village a person has been granted a portion of the nattam poramboke for use as house-site by a duly authorized Government officer, can the mirasidar by virtue of any right, privilege or title inherent in him as mirasidar disregard the grant of the house-site by such officer and evict the grantee from possession.
In the plaint the suit property is claimed by plaintiffs as absolute owners. How far this claim was intended to be based on the adverse individual enjoyment which has been found against by both the lower Courts is not clear: but I do not think it has been seriously argued by the learned vakil who represented them in this Court that their interest in the property amounted to absolute ownership, i.e, ownership without restriction as to the way in which the property should be utilized. Such a claim would in effect only be supported on the theory that every inch of land within the boundaries of a mirasi village was equally and entirely the property of the mirasidar—subject only to liability to pay land revenue to the Sircar. It is quite certain that no such claim has ever been recognized by Government or the Courts even if it was ever advanced. It is not disputed that the right of the mirasidar to deal with various kinds of land in his village is clogged with various restrictions. This is clear even from the authority most relied on by appellants: vide Mr. Ellis' report at page 184 of the Mirasi Papers. Tank, road, threshing floor and other descriptions of poramboke lands, not excepting the nattam or house-site poramboke with which we are immediately concerned, can only be utilized for the purpose indicated by the description of each: while it is admitted that cultivable land can under certain circumstances be assigned by Government to a non-mirasidar and it has been held in Fakir Muhammad v. Tirumala Chariar that a mirasidar cannot without the permission of Government break up immemorial waste and bring it under cultivation. Obviously then mirasi does not imply any general rule of complete ownership over all the lands of the village: and what we have to consider is whether this power to evict under the circumstances contemplated by the reference is an incident of mirasi and whether it has been recognized by Government. That the latter is a necessary condition of enforceability has been laid down in the most trenchant terms by their Lordships of the Privy Council in a very recent case: [Secretary of State for India v. Bai Rajbai.] They say: “Before dealing with the action which the Government of Bombay took in reference to this village of Charodi on receipt of these reports it is essential to consider what was the precise relation in which the Kasbatis stood to the Bombay Government the moment the cession of their territory took effect and what were the legal rights enforceable in the tribunals of their new Sovereign, of which they were thereafter possessed. The relation in which they stood to their native Sovereigns before this cession and the legal rights they enjoyed, under them, are, save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new Sovereign were those and only those, which that new Sovereign, by agreement expressed or implied or by legislation, chose to confer upon them. Of course this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with, them which the new Sovereign adopted, his recognition of their old rights and express or implied election to respect them and be bound by them and it is only for the purpose of determining whether and to what extent the new Sovereign has recognized these ante-cession rights of the Kasbatis and has elected or agreed to be bound by them, that the consideration of the existence, nature, or extent of these rights become relevant subjects for inquiry in this case.”
Whatever view is taken of the origin of mirasi tenure (which is entirely a matter of speculation) and the privileges it confers, there are undoubtedly certain incidents, which have been claimed as attaching to it from ancient times and have to some extent been recognized. They are:—
(a) The right to hold his manyam lands free of all payment of land revenue.
(b) The right to hold his patta lands in absolute ownership subject to the payment of such assessment as the State may impose.
(c) A preferential right to cultivation of all lands, which have been brought under, but have gone out of, cultivation (seykal-karambu).
(d) The right to certain fees (thunduvaram) on lands granted for cultivation to non-mirasi cultivators (paikaris).
(e) Certain rights over immemorial waste.
(f) Certain rights over lands set apart for various communal or public purposes; e.g, tanks, village-site, threshing floor, etc.
Now all these rights may have a common origin in the status of the mirasidar; but none of them necessarily involves another, and, as will be seen, they vary with the description of land to which they relate, Each, as it seems to me, requires to be separately established; and recognition by the State, whether express or implied, is an indispensable condition for the enforcement of each. If may be argued that the existence or recognition of one renders probable the existence or recognition of another: and this indirect evidence will be dealt with later. But it seems to me more convenient to start with the direct evidence regarding the peculiar incident with which we are concerned—that is, the rights of the mirasidar as such over the village nattam.
Nattam is a particular variety of poramboke land. Poram-boke is defined is Wilson's Glossary thus: “Such portions of an estate or village lands liable to revenue as do not admit of cultivation and are therefore exempt from the assessment, as sterile or waste land, rock, water, wilderness, site of dwellings and the like: also common land near a town; any place situated out of or beyond certain limits.”
Nattam is the “site of dwellings” above referred to. It does not admit of cultivation and is exempt from assessment, not because it is unfit by nature for the plough (it is frequently cultivated licitly and illicitly) but because it is required and set apart for an indispensable purpose—the building of houses for the various members of the village community. Wherever the ownership or quasi-ownership lies, this overriding limitation is respected by both parties. The mirasidars do not claim to be entitled to bring nattam under cultivation except in the limited and special way incidental to the backyard of a house: and Government do not claim the right of granting it on patta for cultivation purposes subject to the payment of assessment. Such a course is in fact expressly forbidden in the Board's Standing Orders.
In fact the dispute between the Government and the mirasidars as regards nattam practically amounts to this: in whom rests the right and duty of apportioning the unoccupied nattam so as to ensure its utilization for the appointed purpose?
Now in deciding this question the plaintiff?, who are the parties seeking relief in this case, wish to override the general presumption of the common law of India that the ownership of all unoccupied land vests in Government. If authority be needed in support of this presumption, I may cite Subbaray a v. Krishnappa, The Secretary of State for India v. M. Krishnayya, Madathapu Ramaya v. The Secretary of State for India and Bhaskareppa v. The Collector of North Kanara. In Madathapu Ramayya v. The Secretary of State for India, Bhashyam Ayyangar, J., says at page 393 that presumably the freehold in the soil of gramanattam or village-site is in Government. He was of course speaking of an ordinary ryotwari village where no mirasi claims can be set up, but there is no doubt that the presumption of Government ownership applies to nattam lands in ordinary ryotwari villages, the ownership being subject to the important limitation above referred to. Even in this latter respect it is not denied that where the nattam in an ordinary ryotwari village is in excess of what is reasonably required, Government may transfer a portion to ayan (assessed) and grant it on darkhast. I mention the specific reference to nattam in view of the possible suggestion that the presumption is inapplicable to poramboke lands.
The right of Government to allot nattam in ordinary villages has in fact never to my knowledge been questioned: and an elaborate series of rules has been framed for the guidance of Revenue officers—vide Board's Standing Orders, page 21.
The presumption has now been embodied in section 2 of Act III of 1905 and it is very remarkable that there is no mention of mirasidar among the numerous classes, whose rights are specifically excepted. There is no reason to suppose that the Act was intended to put an end to any existing right: and the mirasidar might probably shelter himself behind the clause “all customary rights legally subsisting.” But the section is important both as embodying the presumption in an enactment and as indicating that in 1905 at any rate the legislature treated the peculiar rights claimed by mirasidars as on a different footing from those of janmis and wargdars who are both recognized by name. The mirasidar has to show that his right is “customary right legally subsisting.”
This presumably involves proof of recognition by the British Government, which, as already indicated, is necessary to establish the rights as legally enforceable.
As regards the recognition of mirasi right by the State, the burden of proof undoubtedly rests on appellants—vide Secretary of State for India v. Bai Rajbai, above quoted.
It may not be out of place to refer to one other point in this connection. If the mirasidars are legally entitled to the right they now claim, it is of course the duty of the Courts to enforce it, irrespective of all considerations of expediency. But where it is clear that the right claimed tends to the prejudice of a purpose to which the property is admittedly dedicated, I think it is the duty of a Court to require very strict proof before giving a decree in its favour. In the present case, no one has ventured to suggest that the enforcement of the mirasidars' claims over nattam would not be gravely prejudicial to the village community generally.
Sankaran Nair, J.:— freely admits as much and throws out a suggestion calculated to ameliorate the rigour of mirasi control. He says:
“It may be that, though the mirasidars are the owners of the village waste lands and house-sites that claim is subject to the claim of the labourers and the residents in the village and that, if the mirasidar happens to turn out a labourer from his homestead they are bound to give him other house sites.”
But this liability is not recognized by the mirasidar and is quite incompatible with his claim not only as put forward in the plaint, but as argued in Court before us. The Board's Standing Order provides a simple procedure whereby any resident of the village can obtain an allotment of vacant “nattam” for the purpose of constructing a homestead. The recognition of the mirasidars' claims would place the entire control of this unoccupied nattam in the hands of a small corporation frequently consisting of two or three individuals (three in the present case) or even a single person. How potent; an instrument of oppression this may be needs no demonstration. It is so, even now, when the mirasidars' claim has not been declared by the Courts and the labouring classes have the support of Government is resisting it. In the latest survey of the condition of the district Mr. G.A.D Stuart writes (section 12):
“In ekabhogyam villages the mirasidars still use their claim to village-site as a weapon against refractory sub-tenants or labourers, in the manner described by Mr. Mullaly in 1890. A typical instance will be found in village No. 15, Kannivakam, in the Chingleput taluk. Here there are two mirasidars, both absentees, living in Madras. The wet lands are poor and are assessed at Rs. 2 and Rs. 2-8-0, but the resident sub tenants have to pay Rs. 12 an acre rent to mirasidars. Their holdings are altered as often as possible so that they have lost all occupancy right. Their houses are mostly built on a piece of patta land and they have to pay rent to mirasidar for each house-site. There is plenty of vacant land on the poramboka village-site, but the mirasidars have ‘forbidden’ the sub-tenants to build their houses there. I explained to the sub-tenants that the mirasidars have no right to forbid them to use the village-site, but they explained that, if they ventured to disobey, their cattle would be impounded. This is a form of oppression which is also mentioned by Mr. Mullaly. In this village all the waste land on which the cattle graze has been taken up and now stands in the patta of the mirasidar, so that the sub tenants are entirely in the hands of the mirasidars in this respect.”
The recognition of this claim by the Courts would enable mirasidars, wherever they chose to unite, to practically banish from the village any person, who incurred their displeasure and would go far to reduce the labouring classes to the state of serfdom, from which they have been slowly emerging.
I proceed to consider the evidence directly bearing on the existence and nature of the mirasidars' rights over “nattam” and the recognition of these rights by Government. Existence and recognition are, of course, different things; but the evidence regarding both has to be dealt with together inasmuch as appellants depend largely on alleged admissions by Government to establish the existence of the rights they claim.
I may say at once that up to a comparatively late period (about 1870) there is very little indeed either in the Exhibits in the case, or in the Mirasi Papers to which we have been referred, or in the decisions of the Courts dealing with the point.
The minds of Mr. Place, Mr. Ellis, Sarishtadar Sankarayya and Sir Thomas Munro were all concentrated on something entirely different—the question of the rights of the mirasidars in cultivable land. In the last years of the eighteenth and the first quarter of the nineteenth century this was a burning question. A reference to the Minutes of Consultation, dated the 8th January 1796, shows that at that time, Government took a very extreme view of the relative position of themselves and the ryots (including mirasidars). They say: “Though the inhabitants of each village may; from generation to generation, have cultivated the lands adjoining to it, yet the original compact is not changed by residence: they can establish no more rights of inheritance in respect to the soils,’ than tenantry upon an estate in England can establish a right to the land by hereditary residence, although the liberal custom of English landlords has generally given a preference to the ancient inhabitants, where a reasonable rent has been acquiesced in.” “The mirasi inhabitants then bear the same relation as the other inhabitants to Government; and both of them establish by hereditary residence in a village not a right but a preference to the cultivation of the soils, the proprietary right to which is exclusively vested in the Circar.”
These were the views that Mr. Place and to some extent Messrs Ellis and Sankarayya were combating in the memoranda and reports on which reliance is placed by Mr. Srioivasa Ayyangar: and although it is needless to say that Sir Thomas Munro in 1824 took a much more liberal and enlightened view of the matter, yet he was primarily concerned with the difficulties which the advocates of the mirasidars threw in the way of the introduction of the roytwari system as regards cultivable land. In almost every passage in which these writers refer to waste, they clearly have in mind either land which has been cultivated and abandoned (seykal-karambu) or land which though never cultivated is fit for cultivation or could readily be made so and to the cultivation of which by some person or other there is no objection on public or communal grounds (anadikarambu). It has been argued before us that waste lands include all poramboke lands: and no doubt if waste is interpreted in the widest sense as meaning simply, uncultivated, this is so. But in practice “tarisu” (waste) and poramboke are understood to be two different things—as authority for which statement I need go no further than the opening sentences of the referring judgment of Sankaran Nair, J., in this very case. I may however also refer to the footnote on page 185 of the Mirasi Papers which gives an exhaustive classification of all sorts of land according to the “tarapadi” accounts, which were maintained in those early days of the British Raj: and to the very clear and detailed explanation furnished in sections 69-71 of the Minutes of the Board of Revenue, dated the 5th January 1818 (vide pages 373-374 of the Mirasi Papers).
Wherever either Place, Ellis, Sankarayya, Sir Thomas Munro, the Board of Revenue or Government use the term “waste” as including poramboke, they are careful to make their meaning clear: e.g, the answers of Eilis and Sankarayya to the second question propounded by the Board (pages 184 and 219, Mirasi Papers). Mr. Ellis in a single passage (page 357 id) uses the word “tarisu” in a special and peculiar sense—indicating land which is neither anadikarambu or seykal-karambu, but “entirely barren and un-cultivable.” This “tarisu,” he says, should like poramboke be deducted totally from the assessable lands of the village. He obviously has in mind such lands as are from their very nature hopeless for cultivation purposes, e.g, stretches of bare rock, which are now usually classed as “parai poramboke.” Having cleared such cases out of his way, he proceeds to formulate his proposal regarding the question then at issue, i.e, the treatment of cultivable lands.
I shall deal seriatim with the rare instances in which these early authorities refer to mirasi rights as applicable to poramboke land, including “nattam.”
Mr. Place's final report, which has been much quoted by appellants, leaves the question entirely untouched, his conclusions in sections 703 and 704 (pages 68-69, Mirasi Papers) are on the face of it concerned solely with cultivable land capable of paying revenue to the State.
Messrs Ellis and Sankarayya however writing on and confronted with the question “Djes mirasi right extend to waste land?” do refer to poramboke lands.
Mr. Ellis says (vide pages 184-185. Mirasi Papers): “In the arepadi accounts the lands are distributed according to their several (23) descriptions, either waste or cultivated and the mirasidars must enjoy them as thus entered; on the nattam they must build their houses and nowhere else, they cannot cultivate or appropriate it to any other purpose; in the poramboke they have no right to fill up tanks, stop water-courses or obstrue: roads; and so in other (24) descriptions of land, mirasi right is confined to the use of these as they exist. No alteration can be made with respect to them by the mirasidars; I mean that they have no inherent right to do so, but with the consent of the Sirkar any beneficial change in the appropriation of lands may take place and a corresponding alteration must be made in the tarapadi accounts—thus, if part of the anadikarambu lands be reolaimed, or a road in the poramboke be stopped up and cultivated, the extent must be transferred from this head to that of varapat.”
This seems to me to simply recognize the mirasidars' right of enjoyment e.g, nattam for building purposes. It is obviously incompatible with any claim of full ownership; and I do not find anything to support the idea that their right of enjoyment extends to the exclusion of non-mirasidars from nattam which mirasidars do not require for their own personal use.
Sarishtadar Sankarayya's answer to the same question is printed at page 219. He lumps all porambokes (including nattam) in with “tarisu” lands and says they are enjoyed either jointly or severally by the mirasidars. Appellants are entitled, I think, to quote this as an authority in support of their claim. The Sarishtadar goes further than any one else in his advocacy of mirasi right; but I am not satisfied that we should be justified in treating him as an authority of the first rank; and he does not seem to have been so regarded by his superiors at the time with the exception of Mr. Ellis himself.
How far the Board of Revenue were inclined to admit the mirasidars' rights in nattam is clear from section 70 of their Minutes, dated 5th January 1818 (vide page 374, Mirasi Papers).
“The poramboke, or land incapable of cultivation, consists of rocks, public roads, the beds of rivers, tanks and watercourses, the public ground in which the bodies of the dead are burnt or interred, the paracheri or suburbs of the village, occupied by the huts of Pariah slaves and other out castes, the lands on which the disorient village temples stand and the site of the village itself, called in Tamil the nattam. It is in this last place that the houses of the landlord mirasidars are invariably to be found; for here and nowhere else, are they permitted to build their houses. Various other pure tribes, such as Brahmans, weavers, merchants and others: are admitted to dwell in this place and all therefore who reside in it are not mirasidars; but all the mirasidars have houses, or at least sites for their houses, in the nattam. Indeed, their title to erect their dwellings on that particular spot and their right to control the affairs of the village pagoda and to appropriate the produce of quarries, mines, or fisheries, are the chief privileges they possess in the poramboke, which, as here described, being incapable of being cultivated, is not liable to any tax.”
The right now claimed certainly cannot be read into the privileges herein enumerated. They are stated to have a right of control over the affairs of the village pagoda, but not over the nattam. The latter is expressly stated not to be in their exclusive occupation. They are stated to have a right to erect their dwellings on that particular spot, to which might fairly be added as an inferential corollary “in preference to other people;” but there is nothing to suggest a right to exclude others from portions of the nattam not required for their own use.
These are the views of the Board of Revenue and I can find nothing to indicate that Government, still leas the Directors, ever troubled their heads about the matter. There is a single passage in the Minutes of Consultation, dated the 11th February 1856 (page 534, Mirasi Papers), in which Government remarks that Mr. Ellis shows that “the mirasi interest in land of different descriptions varies much—the highest degree of it being found in the case of the varapat and cultivable waste the lowest in the poramboke.” I shall show later the utmost limit claimed for mirasi rights in cultivable waste do not extend to the policy of the dog in the manger which it is now sought to put in force as regards “nattam,”
Sir Thomas Munro in his famous minute of 1824, of course, took a very strong view against the mirasi claims in cultivable waste; but he does not touch on the subject of the mirasidars' interests in nattam, though it is not difficult to see what his views would have been, had he had occasion to express them.
In the whole of these official reports, minutes and proceedings up to 1870 on the mirasi question, I can find nothing amounting to a recognition on the part of Government of any title in the mirasidars to monopoly or exclusive control of the nattam. The views expressed on other mirasi incidents, which I shall come to later, certainly incline one to the opinion that had the claim been brought to their notice, they would not have recognized it. The most that can possibly be said is that there is no record of any repudiation of it; and whether this amounts to much or little depends largely on the practice actually obtaining in the villages. This brings us to the papers connected with the Order of Government, dated 16th December 1872, at which time the question first really came up for consideration. I shall return later to a few isolated instances in which specific disputes as to nattam had come before the Courts, the Board or Government previously. They do not seem to me very helpful.
The Order of Government No. 1684, dated 16th December 1872, has been strongly relied on by appellants and is undoubtedly a piece of evidence entitled to very serious consideration. In the course of it, the Government remark; “In purely mirasi villages, where the entire area belongs to the mirasidars, the gramanattam no doubt appertains to them equally with the other not amboka;” and the Board of Revenue is instructed to exempt zamindari and mirasi villages and villages which are private property from the rules they were about to formulate regulating the grant of nattam land for house-site. An excepting clause was actually introduced accordingly in the Board's Standing Order and was act removed till fourteen years later. These proceedings, according to appellants, constituted a distinct recognition by Government of the right for which they are now contending and are, as their learned vakil would put it, conclusive of the case.
A careful examination of the connected papers appears to me to considerably reduce the importance to be attached to this alleged recognition. It appears that in 1870 the question of the practice obtaining regarding the disposal of nattam land by Revenue officers was brought to the notice of the Board of Revenue on a reference from the Coimbatore district. Reports were called for from all Collectors and these are summarized in the Board's Proceedings. For our purpose it is most important to note that it appears that in Chingleput nattam land was granted to all applicants on a fixed scale. This scale doubtless refers to the extent allotted and strongly suggests that in this respect regard was paid to whether the applicant was a pattadar or not and to the assessment paid by him. This distinction is embodied in the existing rules (vide Board's Standing Orders, page 21) and has probably always been observed, wherever rules have been formulated. But there is no mention in Chingleput of any preference to pattadars, as in the adjoining districts of South and North Arcot; and it can only be understood that the village or Revenue officers granted nattam land for house-sites to all applicants at their discretion subject to this fixed scale without reference to any special claim of the mirasidars as such. The Board of Revenue proceeds to consider these reports and to formulate and submit for the approval of Government certain general rules applicable throughout the Presidency. It would appear that in some parts at any rate Revenue officers had been unduly and unnecessarily interfering in gramanattam questions; and that it had become desirable to reduce this interference to proper limits. The Board remark—
“The true view of the case is that gramanattam is the communal property of the villagers and that the Collector can only interfere with a view to benefit the community and when his action is consistent with the common law.”
Much stress is naturally laid by the appellants on the phrase “communal property.” It was at once repudiated by Government, who in their order substitute the following definition.
“By immemorial usage a portion of every village is assigned rent free as a site for the dwellings of the villagers; but as the old hukumnamas show, the enjoyment of it is subject to regulation by the Government.”
As a matter of fact, it is clear that the difference between the Board and Government was merely one of words. The action which the Board proposed for its officers as “consistent with the common law” involved precisely the same powers as Government claim at the present day. Its proposed rule I runs:
“Unclaimed portions of the village-site may be granted to any one resident or about to become resident in the village on a fixed scale, which must be laid down by the Collector of each district once for all.”
Government approved of this; and added a mora drastic provision insisting on the land being built on within a fixed time.
So far the papers are not only useless to appellants, but tell very strongly against them on the most important point of the custom, which had previously been obtaining. But in generally approving the Board's proposals, Government, as already stated, went out of its way to place mirasi villages on a separate footing. Why they did so it is impossible to say. The special case of mirasi villages was not raised by the Board and it does not appear that any special representations had been made by mirasidars. If it is to be taken as meaning that in a mirasi village the entire area belongs to the mirasidars, this view is so utterly opposed to every pronouncement of Government before and since, that it is difficult to treat this isolated dictum unsupported by any reason as a considered and binding expression of policy. If it is merely meant, that the mirasidars had rights in nattam just as they had in other porambokes, each after its kind, this is in accordance with section 69 of the Board of Revenue Minutes of 5th January 1818 already alluded to; but it does not necessarily involve the idea of exclusive rights. Practically all that one can say is that in 1872 Government declined to sanction the application to mirasi villages of the village-site rules approved for non-mirasi villages; and that if the mirasi claim now under consideration had been placed before Government as then constituted it might or might not have been recognized in full, but it would in all probability have received favourable consideration and recognition to some extent at least. Government issued no specific orders regarding nattams in mirasi villages: but it is very doubtful whether they meant to abdicate entirely the control which had, on the very papers before them, been exercised up till then, so far as appears without objection.
At any rate less than three years later when Chingleput district was settled the Settlement Register of this very village (Exhibit F) which must be taken as issued by the authority of Government contains a note with regard to building site (nattam) that “no new enclosure is to be made or new building erected without permission in futurs.” It is difficult to reconcile this with the view which the learned vakil put forward regarding the Order of 1872.
I may mention here that although the purport of the latter Order was, as already stated, embodied in the Board's Standing Order, yet it does not appear to have attracted the attention of the parties interested or to have had any practical effect on the situation (vide section 8 of Board's Proceedings No. 362, dated 24th June 1890, referred to below).
The next landmark is 1886, when the whole question in much the same form as that in which it now presents itself came before the Board of Revenue in connection with an appeal presented by the mirasidars of Nemelicheri against a certain order of Mr. C.A Galton, then Collector of Chingleput. The Board says in its Resolution No. 1547, dated 7th July 1886;
“This is an appeal which raises the question of the right of mirasidars (in Chingleput) to the ownership and the full control of the gramanattam or village-site. It appears that the mirasidars of Nemelicheri assarted this right over the land in the paracheri of their village and did so by ploughing up part of it, by erecting huts without the permission of anybody and by ousting a pariah who had occupied a house in the paracheri for forty years. In their petition the mirasidars assart an absolute right of property in the paracheri land or ‘cherinattam’ and a right to oust their farm labourers or apparently any pariah from it.
“2. The evidence they have produced makes it certain that they have claimed and probable (but only probable) that they have possessed this right in past times but they cannot show that it has ever been admitted by Government.”
The Board dismissal the mirasidar's appeal, but in view of the importance of the subject, reported the whole matter to Government, drawing particular attention to the Government Order of 1872 and the probability of a civil suit following on the dismissal of the appeal. The Board expressed a strong opinion that the Collector must be supported in asserting the right of Government to deal with the nattam and negativing the claim of the mirasidars to exercise right of ownership over any part of it.
Government, having had the matter thus placed fairly and squarely before them, simply recorded the papers; from which it can only be inferred that they agreed with the Board and were prepared to face the threatened suit. Had they taken a different view, they would certainly have issued orders to admit the mirasidars' claim and so save litigation. No suit was apparently ever filed.
These papers clearly show that, whatever view the Government of 1872 might have been induced to take, the Government of 1886 did not recognize the mirasidars' claim.
The next batch of records to which our attention is drawn is that connected with G.O No. 704, Revenue, dated 3rd September 1890. In this Order Government in the most explicit terms declines to recognize the mirasidars' special claim to nattam and repudiates the view which it seemed to have taken in 1872. The Government Order says:
“It is true that in 1872 the Government declared that in the exceptional case of purely mirasi villages, where the entire area belonged to the mirasidars, the village-site would also appertain to the same body, but the opinion expressed was stronger in appearance than in reality, for it formed part of an argument, contesting the view of the Board that village-site was the communal property of the villages and did not appertain to Government. In any case His Excellency the Governor in Council is not now prepared to subscribe to the above dictum and it is observed that when in 1836, the Board challenged the correctness of the Order of 1872 the Government allowed the challenge to pass unnoticed. The said Order has thus practically become a dead letter, in so far as it acknowledges the claims of mirasidars to village-sites and in the revised edition of the Standing Orders the words “mirasi villages” have been omitted from Standing Order No. 37 formerly No. 39;.”
It has been argued before us that the “double entry system” regarding house-site which prevailed in the village accounts of some, but not all, of the villages of the Chingleput district is itself evidence of recognition of the mirasidars' claim. This matter is fully considered by the Board and Government in these papers. I have no hesitation whatever in rejecting this argument. There is nothing to contradict Mr. Mullaly's statement that the practice was unauthorized by Government or any responsible officer and it was discontinued, as soon as it was brought to notice and attention drawn to the fact that it might be construed into an admission of the mirasi claim. In the second place the practice itself is probably due largely, as suggested by Mr. Lee Warner, to the grant by mirasidars of house-sites to their labourers out of their own porumanais (vide section 5 of the Board's Proceedings No. 362, dated 24th June 1890.) Now the rights, of the mirasidars in these porumanais may stand on a very different footing to the right they now claim over vacant nattain. Although the porumanais may be originally misappropriations of nattam poramboke, the mirasidars may have acquired by prescription a valid title to them.
The whole question of the position of pariah and low caste labourers in Chingleput and their oppression by the mirasidars came before the Board and Government in 1892, in consequence of a memorandum prepared by Mr. Tremenheere, who was then Collector. The views then expressed by both authorities were to some extent influenced by the desire to point out what they regarded as the exaggerated expressions of Mr. Tremenheere; but I can find nothing in either Board's Proceedings No. 584-A., dated 19th August 1892, or G.O, Nos. 1010 and No. 1010-A Revenue, dated 30th September 1892, to indicate a change in the opinions and policy enunciated two years before. Government in fact reiterated its orders regarding the contesting of any civil suit brought to assert the mirasi claim to village-site.
The latest Orders quoted are those passed on Mr. G.A.D Stuart's re-settlement report in 1909. These also ndicate no change of view. Both Mr. Stuart and the Board emphasize the fact that the mirasidars' claim to all vacant nattam and to the power to oust any non-mirasidar (as now contended for) must be resisted; and Government apparently acquiesce although willing to transfer to “assessed” all poru-manais in which a prescriptive title as against Government can be proved or fairly presumed. The above appear to be the only cases in which the abstract question of the mirasi right now in dispute has been considered: and it seems to me that with the exception of the Order of 1872 there is nothing that could possibly be construed as recognition by Government. For reasons given above I do not think this isolated pronouncement is of a nature to be treated as conclusive on the point.
It remains to consider certain cases in which the action of Government is represented as constituting (or at any rate supporting the idea of) recognition of the contested right and certain cases in which the latter is said to have come before the Courts and been the subject of adjudication.
Mr. Srinivasa Ayyangar has drawn our attention to a series of papers (Mirasi Papers, Nos. 25 to 32) dealing with the payment of compensation by Government for certain waste lands in the mirasi village of Tondiarpet about the year 1810. There is nothing to indicate that any of these lands were nattam or indeed any kind of poramboke: and the fact that Government were prepared to pay compensation to the mirasidars for cultivable waste has no significance in the present connection. Whether such a claim would be admitted at the present day may be doubtful, but the papers make it clear that Government were not prepared to recognize any proprietary right on the part of the mirasidars but only what is referred to as “occupancy” right—by which I think is meant the preferential right of the mirasidar to take up and cultivate waste land (vide page 143) and that there was an inclination to show some special indulgence to the Tondiarpet mirasidars, because they had recently been evicted from their village in favour of certain Shanars and thus prevented from exercising their preferential rights. I can find nothing in these papers bearing directly on the present question: and I do not think we have been referred to any case in which compensation has been paid by Government for the acquisition of unoccupied nattam.
The general question of the necessity of paying compensation to mirasidars for waste land taken up by Government was again agitated about the year 1856 (vide Mirasi Papers, Nos. XCII, XCV, etc.), but here also only with reference to cultivable lands. The two papers mentioned however throw a great deal of light on the views prevailing at the time: and section 39 of the Government despatch to the Court of Directors, dated 5th June 1857 (Mirasi Papers, No. XCV) makes it quite clear that they were only prepared to pay compensation for cultivable waste on the basis of the value of mirasidars' preferential right to take up the land. For the orders of the Court of Directors as to the limitations on this preferential right—vide section 30 of their despatch, dated 17th December 1856 (Mirasi Paper, No. XCIV).
It is unfortunate that the reply of the Court of Directors to the despatch of the Government of Madras is not on record.
Since that time (1856) there seems to have been no discussion so far as the record goes of the liability of Government to pay compensation for waste lands taken up in mirasi villages. The only actual cases to which we are referred are two which came into Court. The first which will be referred to later as the Vyasarpadi case related to waste land, which at the time of acquisition, though not assigned by Government, was in the actual occupation and enjoyment of a man claiming under the mirasidars. The second, reported in Sivantha Naicken v. Nattu Ranga Chari, seems to be good authority for the proposition that in the case of immemorial waste compensation is not claimable by the mirasidars. It is argued that the decision proceeded solely on the facts of the particular case, but the first two sentences of paragraph 3 of the judgment certainly seem to me of general application.
One specific case referred to in the papers of 1856 has been referred to and relied on by appellants' vakil. It is dealt with in Mirasi Papers, No. XCIII and also in section 37 of No. XCV and although it arose in the Tanjore district it calls for comment. The case is a curious one. It relates to a plot of land classed as threshingfloor poramboke in the village of Mamalore. The village was held by four sharers who called themselves mirasidars; and these sharers had divided the threshing floor poramboke among themselves. One of the mirasidars ‘Rangappa Naik’ allowed one Narayanaswami to put up a temporary house on 18 gulis of his (Rangappa's) share of the threshing floor: and this Narayanaswami not only declined to quit when called on to do so, but obtained a grant of 40 gulis more of the same land from the Collector and appropriated a further extent of 42 gulis in which he was subsequently confirmed by that officer. Rangappa having failed to obtain redress through the Civil Courts resorted to the Revenue authorities: and both the Collector and the Board declined to interfere on the ground that the land was poramboke which Government could give to whomsoever they pleased. Government dissented from this view and directed that the 82 gulis should be placed in possession of Rangappa and that as regards the original 18 gulis, they should be entered is the accounts as his land, but he should be left to the ordinary legal means to oust the occupant.
There is no doubt that in this case Rangappa Naik had a genuine grievance. The land was set apart for use as “threshing floor,” and the Collector had no right to assign any portion of it to Narayanaswami, This, as Government pointed out in section 39 (page 555), could only be done if it had ceased to be required for the special purpose for which it was assigned: and in that case it would come under the same footing as ordinary waste and the mirasidar would have a preferential claim to it. There is no doubt that Government at the present day would come to the same decision as Government did then, as regards cancelling the orders passed by the Collector. For the rest, the letter of Government undoubtedly contains passages which suggest that they saw no objection to the partition of the poramboke between the mirasidars and regarded his share as his mirasi land with which he could do as he liked.
Appellants may fairly quote these in their favour; on the other hand it is possible that Government in its desire to refute the Board's argument as to the absolute right of Government in poramboke went too far in the other direction. I am not inclined myself to treat these expressions, possibly incautiously used in an isolated case as good evidence of the determination of the Government of that day to recognize the mirasidars' private and complete title in poramboka lands especially as we do not know what view the Directors took on this reference. It would appear from another despatch of the Court of Directors about the same time (Mrasi Papers, No. XCIV) that they did not at all approve of the views of Government regarding mirasi claims to waste lands and were much more in accord with those expressed by the Board of Revenue.
Turning to the cases on the subject, the earliest to which our attention was drawn is a very old case decided by Sir Thomas Strange, Chief Justice of the Supreme Court in 1808 (No. XXIV of the Mirasi Papers). This was a suit in ejectment brought by a person as the lessee of certain Vellalars, who claimed to be the aneient mirasidars of Tondiarpet. The defendants were certain Gramanis who according to the plaint were mere purakudis under the Veilalar mirasidar. Plaintiff alleged an ouster of his lessors by defendants in 1794 and alleged that his lessors had been driven out of the village altogether by the Gramanis with the sanction of the Collector: and the suit was brought to eject the defendants. Neither the Collector nor the Government was a party: and no atiempt was made by defendants to justify the alleged ouster of the Vellalars, which the Court was inclined to regard as hiving been effected by the Collector's orders in consequence of the Vellalars' oppression of the Gramanis. The defence raised was that the Gramanis themselves were the mirasidars: but this was found against them. The only other question gone into by the Court was whether defendants were at the time of suit in possession of anything belonging to plaintiff's lessors, the Vellalars. It was found that they were not: and the suit was dismissed. It will be seen from the above how little bearing the case can have on the point now under consideration. The property from which forcible ejectment of the Vellalars by defendants was alleged was the “nattam” (vide section 6 of the judgment): and this for a very obvious reason. This was the only part of the village of which they (the Vellalars) held actual possession. The cultivated lands were all cultivated by the Gramanis under them: so that there could be no ouster in regard to them (vide section 2 of the judgment). And by the nattam can only be meant the house-sites actually occupied by the Vellalars at the time of the ouster. This is clear from section 37, wherein the learned Judo says, “Shall we say the nattam? It is in evidence that the persons whom they represent took possession of it for a short time, immediately after the ouster but it is proved, on the part of the lessors of the plaintiffs themselves, to have been long since destroyed, the houses to have been pulled down and the site of them to be now uninhabited.”
The question with which was are concerned never, in fact, came under consideration in that case at all. There is an interesting discussion in the judgment on the nature and extent of mirasi rights generally, but it does not help us. Appellants rely on a remark in paragraph 16 that “the nattam in which they lived including its adjoining backyards” was a material portion of the mirasidars' rights. I take this to moan simply the nattam which they actually occupied. If it meant the entire area of land set apart for building purposes, the reference to backyards (always part of the nattam) is meaningless.
Two decisions of the Sudder Court have been relied on: Those in Special Appeal Suit No. 108 of 1844 printed at page 486 of the Mirasi Papars and in Special Appeal No. 14 of 1849 (decision of the Court of Sudder Adalat, volume I, page 119) In Deither of these was Government represented: and neither is of any real assistance. In the first, which arose from Tanjore, the only question appears to have been the right of a mirasidar to evict a former purakudi from samudayam land which he (the mirasidar) had originally given him to build a house the second is from North Arcot district and clearly relates to cultivable land. It has nothing to do with house site and the general remarks in paragraph 7 of the judgment are of an obiter nature.
Exhibit N is a judgment of the District Munsif of Tiruvallur in Original Suit No. 33 of 1894, in which the sola mirasidar of Kathurvedu successfully sued Government for a declaration of his title to 332 acres of nattam land in that village. The decision is of course only evidence of one instance of successful assertion of the mirasidars' claim. Stress is laid on the fact that Government did not appeal against the decision: but this in explained by the fact that the plaintiff had clearly proved a good title against Government by sixty years' adverse possession, while the right of Government to charge assessment was recognized by the Court. Government had therefore no case to appeal on.
Lastly much reliance was placed on an unreported judgment of Turner, C.J, in Civil Suit No. 128 of 1882. In that case plaintiff, a vendee from the mirasidars, sued for recovery of five acres and odd of waste land on which he bad built a house and made a garden. The defendant was Government, who had ousted him, claiming the land as their own. It was found the plaintiff had a good title to the land, and, by consent, he was given a decree for damages in place of recovery of the land.
The land in dispute lay within Madras Municipal limits, but there is absolutely nothing to suggest that it was village-site (nattam). The very size of the plot is against such a suggestion; for in nattam land five acres would under the Government system suffice for 50 house sites on the most liberal scale. The words nattam or house-site are never mentioned in the pleadings or judgment: and the reasoning of the learned Judge proceeds entirely on the assumption that it is waste land liable to pay assessment to Government on occupation. He decides that mirasidars have certain property in the waste and that property, enables them to dispose of the occupancy of the lands subject of course to the payment of land revenue. This is a very important pronouncement, but it has no immediate bearing on the present question; and the case is not, as was argued, a direct authority on it.
I have above to the best of my ability summarized and considered the evidence cited as bearing directly on the right now in dispute. There is other evidence with which it is unnecessary to deal, e.g, various ancient sale-deads in which mirasidars have professed to transfer proprietary rights in nattam and other poramboke lands. Tease, at most, amount to assertions of the right: and I am very far from suggesting that the right now claimed is a modern invention. On the contrary I have no doubt it is an ancient claim which the mirasidars have asserted, sometimes successfully, at the expense of the labouring classes in their villages—sometimes through the medium of the Courts, more frequently by force and the exercise of the influence and dread attaching to their state. But the real question is whether this right has ever been recognized by Government, or declared by the Courts in such a way as to bind Government or to establish it for the purpose of the present reference: and this I do not consider to be proved by the direct evidence dealt with above.
It only remains to determine how far this direct evidence is strengthened, or plaintiffs' case rendered more probable by the analogy of other rights inherent in the mirasidar.
The nature of the latter is set out above (vide page 464). Obviously nothing can be deduced from rights (a) and (b) No attempt has been made to show that the mirasidars possess rights over other poramboke lands bearing any analogy to the one in dispute. As regards (e) it is sufficient to quote Mr. Ellis (vide page 184, Mirasi Papers) “In the anadi-karambu, or immemorial waste, though they possess the exclusive right of cutting firewood, working quarries, etc., they have no right of cultivation, much less can they claim any to break up common used for pasturage, or to cut down productive trees, as palmyra, cocoanut trees, etc.”
I do not think any argument could be based on this: and there is no evidence, so far as I am aware, to indicate that any such exclusive right has ever been claimed in modern times. There is no trace of anything analogous to it mentioned in Mr. G.A.D Stuart's very careful and able report (dated 1908) except a claim set up in a few villages to an exclusive right to dig silt and out grass in tank-beds—which he says is not put forward very seriously.
Thera remain (c) and (d) which may be conveniently dealt with together,
(c) A preferential right to activation of all lands which have been brought under, but have gone out of, cultivation (seykal-karambu),
(d) The right to certain fees (thunduvaram) on lands granted for cultivation to non-mirasi cultivators.
Now if it were shown that the mirasidars possessed not a mere preferential right to cultivate areble waste, but a right to evict any other person who had taken up such land under engagement with Government and to appropriate that land for themselves, then it night be argued with some plausibility that they possessed a similar right in the nattam I say “some plausibility” because even then there would be a very vital difference between the two cases, or, to put it in another way, to render the analogy useful to appellants it would have to be shown that their rights as regards areble waste granted to other persons by Government extended far beyond their largest claims. It has been claimed that where Government has granted waste land on cowle to a non-mirasidar, the mirasidars up to three generations might come forward, take the land from him and cultivate it themselves: but by so doing, it has always been assumed, that they would cultivate it themselves and pay assessment to Government it has never been suggested that they were entitled to cultivate it free of assessment, or to keep the land waste and pay no assessment. Hera the claim of the mirasidar to evict the non-mirasidar is coupled with no such liability. No assessment is charged on nattam (except in case of encroachments): and the mirasidar's claim is to evict the non-mirasidar and keep the site un-occupied and useless, until the non-mirasidar is prepared to acquiesce it the mirasidar's terms. This to my mind cuts at the root of any analogy that can be sought to be drawn for the purpose of the present reference.
But, as a fact, I can find no authority in support of any right of recovery by mirasidars of areble waste granted by Government to another person. The Vyasarpadi Oase to which I have referred goes only to this length—that where the mirasidars have put a non-mirasidar in occupation of cultivable waste, Government cannot evict the latter, though they may (presumably) collect assessment from him. The very same learned Judge has ruled in Subbaraya v. The Sub-Collector of Chingleput that where the Revenue authorities had granted cultivable land to a non-mirasidar disregarding the preference to which the mirasidars (in spite of a previous relinquishment) were entitled, it was, nevertheless, not open to the mirasidars to oust the person admitted by Government, Mr. Srinivasa Ayyangar seeks to dispose of this ruling on the ground that its correctness has been doubted by Shepherd, J., in Secretary of State v. Ashtamurthi. That learned Judge was dealing with the conflicting rights of a janmi and a tenant in possession: and all he says is “Notwithstanding the opinion expressed by Turner, C.J, in Subbaraya v. The Sub-Collector of Chingleput, I think it must be allowed that a suit would lie to compel the Collector to settle the assessment with the real owner and not with a third person.”
I am not clear what there is in Turner, C.J's judgment, which was relied on by defendants before Shepherd, J., but I can find no reason for doubting the correctness of the Chief Justice's ruling in the present connection.
There is a Full Bench case, Sakkaji Rau v. Latchmana Gaundan, to which also Turner, C.J, was a party. The actual question before the Full Bench related to the mirasidars' right to “thunduvaram” but it must be noted that the first prayer of the mirasidar plaintiff had been for recovery of land granted to the defendant by the Revenue authorities: and his relief was refused in the first Court and the refusal was never appealed against.
This brings us to the subject of “thunduvaram” or swatantrams. The right of the mirasidar to collect something from non-mirasidars holding lands directly under Government has undoubtedly been recognized by Government and is so recognized even in the present settlement. The matter is very clearly discussed in sections 4, 11 and 18 of Mr. Stuart's report. It appears that in the course of Mr. Puokle's settlement in 1875 the value of these fees was found to amount to two annas in the rupee of the Government assessment and the amount of swatantrams at this rate was duly entered in the village registers. So far as Government is concerned this matter is concluded; though according to Mr. Stuart (vide section 11 of his report) the fees are very rarely paid in practice at the present day and the Courts have held as long ago as 1875 that the right to collect them is not to be taken as a necessary incident of mirasi right, but has to be established by reference to the custom of each village: vide Sakkaji Rau v. Latchmana Gaundan. The fees, in fact, seem to be a sort of compensation for the waiving of the mirasidars' preferential right of cultivation and nothing more. Its recognition by Government has no bearing on the present claim relating to nattam poramboke which is exempt from assessment. Even if the analogy were held to be complete, so that the mirasidars could claim from the grantee of a house-site from Government a small proportion of the assessment which would be leviable, if the land were “ayan,” this would not support the right of eviction now under consideration.
There is one reported case, which has been cited by appellants, but to which I have not hitherto referred as it stands on a footing by itself. This is Natesa Gramani v. Venkatarama Reddi. The suit was brought by a zamindar to enforce acceptance of patta by his tenants, who were also mirasidars of that particular village. One question for disposal was his claim to charge for water taken from a pond in poramboke land, as if it was water belonging to Government. The learned Judges accepted the concurrent findings of both the lower Courts, that in that particular village poramboke and assessed lands are generally the property of the mirasidars and accordingly held the water not to be Government water. The decision was confined to the particular case: and in any event is not binding on Government.
I would answer the reference in the negative.
I need hardly repeat what I have endeavoured to explain at the outset of my judgment. I have considered the matter in its-general aspect, whether the right claimed is incidental to the status of mirasidar. We are of course not concerned with cases in which a mirasidar has, prior to the grant by Government, already acquired a title to the particular, site either by previous grant or prescription and sues on such title. Nor am I to be understood as saying that the mirasidars of a particular village are precluded from showing (if they can) that in that village they have acquired by prescription a title in the nattam generally as against Government, which would include the right claimed. But the mere fact that they are the mirasidars of the village neither carries with it such a right, nor does it even raise a presumption of the existence of such a right.
Kumaraswami Sastriyar, J.:— The question referred to us for decision is: “Whether in a mirasi village the mirasidar is entitled to recover possession of a house-site held under a patta from Government.”
The Chingleput district, in which the mirasi village in question is situate, is part of what was known as Tondaimandalam where village communities seem to have flourished with some vigour till recent times. A reference to the Mirasi Papers and the Chingleput District Manual shows that, under the Hindu Kings, nattams (villages) formed a close village or township the whole property of which was corporate except probably the actual house-site and its backyard in the possession of each villager. On the first formation of a village the rights of occupancy of the whole land comprised in its boundaries seem to have been divided into a number of equal shares or ploughs and allotted to the different members of the settling community. The affairs of the village were not managed by an official appointed by the Sovereign but by the sharers in common. The village or township and not the individual ryot was the Hindu revenue unit. The village boundaries seem to have been fixed and unalterable. At the earliest stage there seems to have been common cultivation and the net produce, after payment of taxes, was divided according to the shares of the members composing the village community. These villages were known as Pasankarai. The lands seem to have been divided periodically but later on were divided once for ail, the mirasidar enjoying the mirasi in his own cultivated lands without interference by his neighbours and a share in the waste and other lands not brought under cultivation in proportion to his share in the village. Such villages were known as Aridikarai. Even in such villages, excepting as regards lands appropriated to each mirasidar, the communistic principle seems to have prevailed. Though at first the sharer was not entitled to sell the land allotted to him without the consent of the other members of the community, the right of alienation was gradually established and the alienee acquired by the sale or mortgage a proportionate claim to all the incidents common to the village, as for instance, the right of taking up waste lands to be brought under cultivation, the right of quarries, fisheries, pasturage and taking timber from forests. When the sharers or mirasidars were unable to cultivate their lands in person, they had recourse to tenants or paikaris who were called ulkudis if they redded in the village and purakudis if they were non-residents. In the beginning the tenants were all tenants at will. The ulkudis, by reason of long possession, seem to have been recognized as having occupancy rights. The paikaris, whether ulkudis or purakudis, paid the mirasidars a certain proportion of the produce or a certain fixed payment which was known as swamibhogam or thunduvaram. The name given to the rights of the sharers was called cawnyatchi when they were non-Brahmans and swastium when they were Brahmans. Daring the Muhammadan period we find the term “miras” coming to be used indiscriminately for all such rights.
The lands of every village were divided into (1) lands which the mirasidars held free of any tax payable to Government which comprised poramboke or lands incapable of cultivation tarisu or waste and (2) those for which taxes had to be paid and which were called either varapat or tirwaipat landa. As regards tarisu or waste lands they were either anadi-karambu or immemorial waste or seykal-karambu or waste lands which had for some time been cultivated. As soon as either of the kind of waste was cultivated, it was classed as varapat or tirwaipat. That part of the poramboke was called gramanattam which was the site of the village itself and was the place where the houses of the mirasidars were usually built. The cheri was the site set apart for the houses of pariahs and other low caste people.
So far as the Sovereign was concerned, he was entitled to a share in the produce which, in theory, was one-sixth though in practice it seems to have been a great deal more. The whole village community was liable to pay the tax and, so long as this was done, it does not appear that the State interfered with the cultivation of the lands.
The origin of the rights claimed by mirasidars is lost in obscurity. I am unable to accept the theory that there was a grant by the Chola King Adandu Chakravarti to the Vellala colonists whom he is supposed to have introduced in Tondaimandalam. There is nothing but bare tradition to support it and, as pointed out by Sir Thomas Munro in his vigorous minute, dated the 31st December 1824 (page 432 of the Mirasi Papers), the whole story is extremely improbable. The origin of the rights of mirasidars has to be sought in custom or usage rather than in a royal grant. There can be little doubt that colonists or settlers, who brought lands under cultivation and thus increased the revenues of the State, were looked upon with favour and encouraged: and, where cultivable lands were abundant, the settlers on any particular tract would have had a free hand in expanding their cultivation and would have considered cultivable lands in or near the village as within the exclusive sphere of their influence. They would also have had abundant pasture lands for grazing their cattle and forests for firewood and timber. So long as the State received its share of the produce raised, the settlers were, in all probability, given a free hand in the management of their internal affairs and encouraged in their enterprise by light assessments. A system, based originally on convenience and expediency, gradually acquired the sanction which use and custom invariably acquire in this country. The mirasi tenure is, in my opinion, more a customary tenure whose incidents have to be gathered with reference to the rights actually proved to have been enjoyed by the mirasidars. So far as the rights of the Government are concerned, the question has not been free from difficulty. As regards the sites on which the houses of the villagers actually stood and the backyards attached thereto and as regards the lands which were actually brought under cultivation and treated as varapat or tirwaipat there can be little doubt that in course of time they came to be treated as the exclusive property of the villagers which they were at liberty to alienate as they pleased. So far as the waste lands are concerned, there can be little doubt that the villagers treated them as property which was capable of transfer in proportion to the extent of the cultivated land of the transferor but it is not shown that the Government acknowledge their absolute rights to the waste lands. I do not think that the records warrant us in coming to any definite conclusion on the question as to whether Hindu and Muhammadan Sovereigns who ruled over the Carnatic recognized the absolute rights of the mirasidars over waste or that compensation was paid for waste lands. No doubt Sanka-rayya in his reply set out at page 218 of the Mirasi Papers and Mr. Smalley (at page 401) state that mirasi rights were purchased or compensated for when grants were made. There is also a reference to the practice in the report of the Inam Commissioner which is set out in G.O No. 2346, Revenue, dated 23rd December 1861. It does not appear that the lands were in those cases waste. It would, in my opinion, be unsafe to draw any general conclusion on the rather meager materials before us. It however, appears that, so far at least as the Chingleput distriot is concerned, mirasi rights were not interfered with to any serious extent during the Hindu and Muhammadan periods and that the mirasi system prevailed comparatively unimpaired when the district came under British rule. The following passage from the Minutes of the Board of Revenue, dated 5th January 1818 (page 368 of the Mirasi Papers), is instructive. After setting out the mirasi tenure with its incidentals they existed when mirasi rights were in full force they observe as follows:— “It is by no means, however, to be understood that this is the state generally of mirasi property in the present time. The severe and arbitrary policy of the Mussalman princes, which notwithstanding their short and unstable authority on the other coast of the Peninsula, so materially affected the interests of the landlords both in Kanara and Malabar, proved much more detrimental to the mirasidars of the Tamil country, where their authority was of considerable duration and their dominion was firmly established under the commanding influence of European power. It is well known that, by successive augmentations, the demand on the mirasidars of the Carnatic was gradually raised, so at last very generally to absorb not only the whole of the landlord's rent, but in many places a portion of the farmer's profit also. Most of the mirasidars in that part of the country were thus reduced to a situation which, except in name, differed little from that of the ulkudi paikaris or permanent farmers; and the Mussalman Government by absorbing the whole landlord's rent, became not only the Sovereigns but the landlords of the country, enforcing in practice their favourite maxim, that the State is the exclusive proprietor of the soil… In the Chingleput district also, which was Coded to the Company as a jaghir before the full extent of the arbitrary power and severity of the Muhammadan Government had begun to be felt, as well as in Dindigul, Madura, Trichinopoly and Tinnevelly, the latest of their southern conquests, mirasi though greatly reduced in value, was found in a tolerably perfect state.” I am unable to accept the contention of Mr. Srinivasa Ayyangar that, when the Chingleput district came into the possession of the East India Company, the mirasidars were recognized by the State to be the sole and absolute owners of the lands included in the boundaries of the village and that the only right the Government then had was to receive the revenue. There can be little doubt that, by long usage and custom, mirasidars had certain exclusive rights and privileges over waste lands, but it does not follow that the rights of the Sovereign or Lord Paramount of the soil were ever relinquished in favour of the mirasidars. Even Sankarayya, who supports the claims of mirasidars to waste lands, admits the right of the State to isspe cowles for the cultivation of waste lands if the mirasidars did not cultivate. In dealing with mirasi rights to waste lands he observes as follows While, however, there is, as has been explained a right of property to the inhabitants as respects their mirasi, yet, as this right is founded chiefly on possession, a paramount right to the territory, over which his dominion extends, appears to vest in the prince; if, therefore, the mirasidar fails to cultivate and loss thence accrues to the State, the Sirkar enjoys and exercises the right to cause the lands to be cultivated and to issue cowles for that purpose.” The right of the State to select a person to enjoy the miras and to confirm him in possession by cowle, if the mirasidar fails to cultivate or acts in any manner detrimental to the State, is also recognized by Sankarayya and an instance is given where the Tanjore Raja transferred villages by sasanam to non-mirasi-dars in Bhaskarappa v. The Collector of North Kanara Mr. Justice West, in dealing with the opinions expressed by Mr. Ellis and the above passage in Sankarayya's reply, observes as follows: “There are many other statements to the like effect and Sir Thomas Munro was undoubtedly right when he asserted that the Government had always asserted a right of disposal over the waste lands of a village.” Though probably Mr. Justice West was not quite accurate in his remarks as to the effect of the replies of Mr. Ellis and Sankarayya, supporting the absolute proposition laid down by Sir Thomas Munro, there is very little to support the contention that waste lands, during the Hindu and Muhammadan periods, were treated as the absolute property of the mirasidars to which the State had no claim except for a share of the produce when the mirasidar chose to cultivate. They seem to have been the subject of reciprocal rights and obligations.
Whatever may have been the rights claimed by or granted to the mirasidars during the Hindu and Muhammadan periods, the real question is as to the rights which were in existence when the East India Company acquired the territories of the Nawab and the extent to which those rights were acknowledged by the British Government. The ante-cession rights would only be effective in so far as the British Government consented to their continuance after having become the Sovereign rulers of the Carnatic. As observed by their Lordships of the Privy Council in Secretary of State for India v. Bai Rajbai, the relation in which the landholders stood to their Native Sovereigns before the cession of territory and the legal rights they enjoyed under them are only relevant in considering what rights the new Sovereign recognized, either by agreement express or implied or by legislation. In the words of their Lordships “the implied agreement may be proved by circumstantial evidence, such as that mode of dealing with them which the new Sovereign adopted, his recognition of the old rights and the express or implied election to respect them and to be bound by them.”
The question under reference has, therefore, to be decided with reference to the reports of the various officers as to the nature and extent of the mirasi tenure, the Orders of the Government on such reports and the decisions of British Courts with reference to the rights of the mirasidars.
When the East India Company acquired the territories now comprised in the Madras and Chingleput districts and proceeded to settle questions relating to the assessment and collection of revenue, three divergent views seem to have been entertained. One was that the Government were the absolute lords of the soil and that the persons in possession, though for generations, were only in the position of tenants at will. Another was that the mirasidar had hereditary property in the soil which was good as against the State and the third was that the mirasi right was only a preference of cultivation derived from hereditary residence.
When the East India Company assumed direct control and management of the jaghir, Mr. Place was put in charge in 1794 and continued in office till 1798. He started with the view that the Government were the sole and absolute proprietors of the soil and that the mirasidar was only entitled to “a preference of cultivation derived from hereditary residence but subject to the rights of the Government as superior lords of the soil to do what it chose for the cultivation of the land.” Acting on this theory, he seems to have dispossessed several mirasidars in Tondiarpet, a suburb of Madras and his action led to a suit in the Supreme Court (to which I shall refer later on) which, though dismissed on a technical ground, was the first judicial recognition of mirasi rights by the Supreme Court. Further inquiries induced Mr. Place to change his views and to hold that the mirasidars had undoubted hereditary properly in the soil. In the disputes between Mr. Place and the mirasidars the Board of Revenue and the Government seem to have taken different views (see pages 25 to 38 of the Mirasi Papers). Mr. Place was asked to submit a final report and he did so on the 6th June 1799 (page 38 of the Mirasi Papers) where he reported in favour of the rights of the mirasidars to the property in the soil. Mr. Place defined mirasi as “a right to the use and substance of the soil vested in the present proprietor, his heirs and successors, so long as he does or can cultivate it and pays his dues of Government and is obedient to it a authority and that, when he does not or cannot cultivate his lands, when he withholds the dues of Government or is disobedient to its authority, such part as he neglects or in the latter case the whole escheats to Government who may confer it on whom it pleases.” In 1806 a claim for compensation was made by certain mirasidars of Tondiarpet in respect of lands taken up for digging what was known as Olive's Canal. The Board of Revenue in their minute dated 1806 offered three pagodas a cawnie as compensation and directed the Collector to inform the claimants of the right of Government to make any appropriation of Sirkar lands, especially if waste, on commuting such occupancy right as may be possessed. Disputes arose as to the persons entitled to receive the amounts and on a claim being made by Messrs Arbuthnot & Co., the Board, on the 24th December 1810, addressed the Government on the matter. The view taken by the Board was that the lands were of little value and would not have been taken up by mirasidars if they were assessed and offered to them. They proceeded as follows: “The refusal, according to the general usage, would have left to Government the option of disposing of it in any other manner: for the principle of the absolute property in the soil being vested in the mirasidars, however suitable to primitive ages and institutions, does not certainly accord with the usage of modern times in those parts of India, more especially as relates to land, which neither is, nor, within the memory of man, has been in a state of cultivation.” Mr. Ellis was asked whether the mirasidars were entitled to any compensation and, if so, to how much. He treated the first question as settled by the decision of the Supreme Court in 1808.
The introduction of the ryotwari system was authorized by the Court of Directors in their despatch, dated 16th December 1812 and this necessitated inquiries into the various land tenures. On the 2nd August 1814 the Government requested the Board of Revenue to get the opinions of the Collectors on 28 questions framed by the Government as to mirasi rights. The most important questions were questions 1 to 4 which run as follows: (1) How has the mirasi right hitherto been recognized and respected, where mirasidars were not the renters? (2) Does mirasi right extend to waste lands? (3) Is mirasi right forfeited for ever, when cultivation is for a single season discontinued? and (4) Where mirasi right exists, has it always been respected by the officers of Government in framing the jamabandi?
The replies of Mr. Ellis, who was Collector of Madras, were that the mirasi right, whicxsh he defined as “a general term used to designate a variety of rights, differing in nature and degree, but all more or less connected with the proprietary possession, or usufruct, of the soil, or of its produce” always existed within the boundaries of the Supreme Court's jurisdiction, that it extended to waste lands, that it was not forfeited by non-cultivation or abandonment, unless the period extended to over three generations and that it was always respected in the villages of Madras. In answer to the question as to whether the mirasi right extended to waste lands, his reply was as follows:” Mirasi right, wherever it exists, extends certainly to waste land, but then the right is limited by the nature of the waste: the extent, entered in the tarapadi accounts under the head of seykal-karambu, or cultivable waste, they hold as they do the general varapat, or the taxable lands of the village and may cultivate it whenever their meana permit, or rent it to purakudis; but in the anadi karambu, or immemorial waste, though they possess the exclusive right of cutting firewood, working quarries, etc., they have no right of cultivation, much less can they claim any to break up common used for pasturage, or to cut down productive trees, as palmyra, cocoanut trees, etc. In the tarapadi accounts the lands are distributed according to their several descriptions, either waste or cultivated and the mirasidars must enjoy them as thus entered; on the nattam they must build their houses and nowhere else, they cannot cultivate or appropriate it to any other purpose in the poramboke they have no right to fill up tanks, stop water-courses, or obstruct roads; and so in other descriptions of land, mirasi right is confined to the use of these as they exist. No alteration can be made with respect to them by the mirasidars; I mean that they have no inherent right to do so, but with the consent of the Sirkar any beneficial change in the appropriation of lands may take place and a corresponding alteration must be made to the tarapadi accounts—the if part of the an karambu lands be reclaimed, or a road in the poramboke be stopped up and cultivated, the extent must be transferred from this head to that of varapat.”
As regards the forfeiture of rights, he was of opinion that the mirasidar was, by implied contract, bound to cultivate his full proportion of the varapat lands, according to the share he held in the village and that the Government could arrange for cultivation. If he failed to do so, he was of opinion that the State could employ paikaris for a fixed term, not an indefinite number of years and in extreme cases could resume his mirasi swatantrams in respect of the lands he refused to cultivate.
I have already set out the reply of Sankarayya on the question relating to waste. His view is that, as the waste lands are included in the gramatnatam, all such lands have been considered to appertain exclusively to mirasidars.
Mr. Peter, the Collector of Madura, was of opinion that the mirasi right extends to waste lands and that, if they are brought under cultivation even by a renter, the mirasidar is entitled to his share. Mr. J. Cotton, the Collector of Tinnevelly, was of opinion that mirasi right, wherever it exists, extends to waste lands. Some Collectors did not however go so far.
In 1817 the Board of Revenue had under consideration a scheme for permanently assessing each field in each village with money rent for the purpose of introducing the ryotwari system and wanted information as to the rights of mirasidars. Mr. Ellis considered the question as to what arrangement was to be made in respect of waste lands and he proposed to transfer the waste lands to the mirasidars (page 358 of the Mirasi Papers). The Board of Revenue in Proceedings, dated the 24th July 1817, passed no final orders on Mr. Ellis' proposals but reserved the subject for future consideration. On 8th September 1817 the Board of Revenue sent to the Government a proposal for the introduction of the ryotwari system and observed that the Board intended to preserve the rights of the mirasidars by directing Collectors not to enter into agreements with persons who are not, by hereditary or prescriptive right, entitled to pay their dues directly to the Sirkar. The Government, on the 16th December 1817, in reply to the Board of Revenue, stated that the ryotwari settlement should not be attended with any infraction of the rights of mirasidars or others in the soil (page 365 of the Mirasi Papers). In 1818 the Board of Revenue recorded a minute on the different modes of revenue settlement resting in the Madras Presidency. In dealing with Tamil country they observe that “In every Tamil village the exclusive aright to the hereditary possession and usufruct of the several descriptions of land situated within its boundaries was originally vested in the Vellalars, one of the principal Sudra castes of that Mation, by whom it is termed cawnyatchi, or free hereditary property in the land.” As regards waste lands, they observe as follows: “The tarisu, or waste land, is sub-divided into the anadi-karambu, or immemorial waste and the seykal-karambu, or waste land that has at some time been cultivated; each of these consists chiefly of tracts of common, on which the mirasidars graze the cattle employed by them in agriculture, or of jungle, in which they cut the firewood used by them for fuel and both are held free from tax. Should the mirasidars, however, possess the means, they are vested with ample right to extend their cultivation to these lands, though it is understood that the consent of Government is necessary before they can break up the anadi-karambu, or land that has never been under the plough; but the moment any part of either the seykal or anadi-karambu is reclaimed, the nature of the land is changed, it ceases to be tarisu or waste and no sooner is it converted into cultivated land than it is transferred, as such, in the village accounts, to the head of varapat or tirwaipat and in common with all land of that description becomes, for the plain reasons already given, liable to tax.”
On the 4th November 1820, Mr. Smalley, Collector of Chingleput, addressed the Board of Revenue on the introduction of the proposed ryotwari settlement into his district. His proposal was that a fixed thundutirwai of 3½ per cent on the gross rent should be allowed to the mirasidars, as it was abut the average thunduvaram which the mirasidars in that district were then receiving from the paikaris. As regards waste land, he fully admitted the mirasidar's right to it, if the mirasidar was able to bring it under cultivation: bufi in cases where he refused or was unable to cultivate, he proposed that the Government should let it to strangers reserving the right of the mirasidar to come in at any period within 105 years on paying the assessment to the person whom he wants to dispossess. The period of 105 years seems to have been the period of limitation in vogue according to Hindu notions which fixed three generations as the period after which rights lapsed.
On the 4th December 1820 the Board of Revenue passed proceedings on a reference by Mr. Hyde, Collector of South Arcot, as to the settlement of that district. They observed that, though much had been said about mirasi rights in the aoutharn provinces, it was doubtful when and how those rights originated, what they exactly were and whether any Native Government ever admitted them to the extent claimed. As regards waste land they observe as follows: “The mirasidar has also an interest in the waste land and a right to a Marsh or fee, when, being unable to cultivate himself, he gets a tenant who shall cultivate it and pay the usual rent to Government. This is fair; he has his fee for the service he performs; but if the mirasidar neglects or refuses to get a tenant for the waste and the Sirkar is obliged to find one itself, to keep up or increase the revenue or the village, the mirasidar has no right to the fee; it may either be added to the rent payable by the tenant, or may be given up to him as an encouragement to him to extend the cultivation. The mirasidars may have claimed more than is here allowed them and more may have been occasionally granted to them. The Government has been and ought always to be, indulgent towards its ryots; but when we come to discuss the principle, it will be found that any further legal extension of the privilege of mirasidars, particularly in the case of their neglecting to keep up the cultivation and revenue of the village, is contrary to common sense and those common principles upon which every Government and society is founded.” In dealing with the letter of Mr. Smalley, already referred to, the Board stated that they concurred generally in the opinions expressed by Mr. Smalley as regards waste and furnished him with an extract of their Proceedings, dated 4th December 1820, above referred to, on Mr. Hyde's report.
It appears from the Mirasi Papers (page 419) that the Government approved of these Proceedings on the 23rd February 1821.
On the 18th August 1824 the Court of Directors addressed a despatch regarding the Board's Proceedings, dated 4th December 1820, where they observe as follows:— “The right of the mirasidars to the lands which they themselves cultivate is in general indisputable, as is very often, also, their right to certain advantages accruing to them, apparently, as descendants of the headmen of the villages. Their right, in any case, to limit the property of the ulkudi ryots in their permanent hereditary possessions, seems much more doubtful and being hostile to the prosperity of the community, ought not to be allowed except upon unquestionable evidence in each case.”
On the 2nd January 1822 the Court of Directors were of opinion that the question of mirasidars' rights ought not to be decided solely on the view which Mr. Eilis happened to entertain but should be decided after deliberate inquiry and full information.
On the 14th April 1823, the Board of Revenue passed proceedings on Mr. Smalley's report regarding the introduction of ryotwari settlement in Chingleput. They authorized the Collector to give lands to others when the mirasidars refused to cultivate and stated that the persons to whom the lands were given were not liable to be ousted but be confirmed in the possession of the land so long as they continued regularly to pay the rent.
In 1823 the Board of Revenue passed proceedings after they received the Minute of the Court of Directors, dated 2nd January 1822. As regards waste land they observe: “It has been stated in the replies from Madras, Tinnevelly and Madura that the right of the mirasidars extends to ‘waste lands,’ but what this right is, has not been particularly defined. The Collector of Madras observes that though the mirasidars ‘possess the exclusive right of cutting firewood, working quarries, etc., they have no right of cultivation, much less can they claim any to break up common used for pasturage or to out down productive trees, as palmyra, cocoanut, etc.’ It is also stated that “the consent of the Sirkar, is necessary towards any beneficial change being made with the appropriation of the lands. It appears from the above that the Sirkar has a right in these lands as well as the mirasidars and the Board have now in view to ascertain whether the Government can, according to the ancient usage of the country, appropriate waste land for public purposes without making any compensation to the mirasidars, further perhaps than the usual one which may be thought just and proper to make up for any loss they may sustain from being deprived of the use of common for their cattle, firewood, etc.” The Board proposed to address the different Collectors as to whether the former Governments had the right to take up waste lands without paying compensation to mirasidars and whether in granting inams compensation was paid to mirasidars. The Government, however, passed no orders on these proceedings and no question was circulated.
On the 31st December 1824 Sir Thomas Munro wrote his famous Minute on the state of the country and condition of the people. His view was that the mirasidar, when he failed to cultivate, lost all interest in the property and that the Government might give it to whomsoever it pleased. As regards waste land he observes Mr. Ellis does not seam to be very decided as to the nature of the property enjoyed by the mirasidar in waste. He admits that he cannot break it up without the permission of the Sirkar. He does not say that he has any specific share of it, or that he can sell it alone without the cultivated land, or that he can do more than sell with his areble his right of common in the waste. The Sirkar from ancient times has everywhere, even in Arcot as well as in other provinces, granted waste in inam free of every rent or claim, public or private and appears in all such grants to have considered the waste as being exclusively its own property. …It has been supposed that in miras villages in Arcot, in original compact between the Sirkar and the first settlers, the exclusive use of the waste was secured to those settlers: but it has already been shown, that in all villages, whether miras or not, the inhabitants reserve to themselves the exclusive use of the waste. But this right is good only against strangers, not against the Sirkar, which possesses, I think, by the usage of the country, the absolute right of disposing of the waste as it pleases, in villages which are miras as well as in those which are not.”
These views represent, what I may call, the extreme views as to the Crown's prerogative and they do not seem to have been subsequently accepted in their entirety either by the Madras Government or by the Court of Directors.
In 1839 the Collector of Chingleput addressed the Board of Revenue with reference to the rights of the mirasidars in the whole of the lands within the village boundaries and as to whether the mirasidars had authority to sell the poramboke and immemorial waste lands. His view was that the rights of the mirasidars over the poramboke and anadi waste extended only to the privilege of grazing their cattle on them when waste and receiving the coopatums when cultivated.
On the 15th August 1839 the Board of Revenue passed proceedings to the effect that the mirasidars had no right or authority to sell poramboke and immemorial waste land. They observed that the usual mode of proceeding for parties wishing to obtain occupation of particular lands, was to apply to the officers of Government to be placed in possession on their executing an agreement to pay the usual assessment and proceeded to state that “the rights of the mirasidars over immemorial waste are confined to the pasturing of their cattle, the cutting firewood, etc. and similar common privileges, but these must always give way to any proposition ensuring the extension and realization of the public revenue.”
In 1839 the Collector of Chingleput addressed the Board of Revenue on the claims made by the mirasidars when lands were offered on darkhast and on certain irregularities which, in his opinion, were causing loss of revenue to the Government. In his opinion the proprietary right of the mirasidars did not extend to immemorial waste lands and that they had no prescriptive right to oust paikari cultivators from lands which were given to them by the Government owing to the mirasidars not having cultivated them. He, however, admitted the mirasidars' right to thunduvaram, swatantrams, etc., in the seykal lands and suggested that paikari ryots, introduced by the Government, should be secured in their right of occupancy on paying to Government the Government dues and the mirasidar's fees.
The Board of Revenue in their proceedings, dated the 29th August 1839, referred to their proceedings of the 15th August 1839 (above referred to by me) and observed as follows:— “As regards the right of the mirasidara to the occupancy of waste, the Board of Revenue, though they have already recorded their opinion against the asserted right of the mirasidars to the absolute disposal of waste lands from which they have derived no benefit for a long series of years, are still inclined to believe that it would be proper and at the same time consonant to usage, to give them the preference of possession when offers are made to bring the waste under cultivation. It should be the care of the Collector to’ ascertain that the parties offering for the lands possess the means to cultivate what they propose and in these cases if the mirasidars decline to undertake the payment of the demand, the lands should be given to the parties offering.”
On the 28th July 1841 the Board of Directors addressed a despatch dealing with the rights of the mirasidars to waste lands. At that time a suit was pending in the Zilla Court of Chingleput where certain mirasidars had sued the Collector and others for possession of lands granted’ by the Collector to non-mirasidars without their consent. The Court of Directors in their despatch make the following observations:— “Without entering upon a discussion of the respective rights of Government and the mirasidara, over the waste lands (a point still under the consideration of the Superior Tribunal to which the case has been appealed), it will be enough for us to state out opinion, that it is desirable that, in all cases where paikaris propose to cultivate the waste lands of a mirasi village, their proposal shoilld be, in the first instance, communicated to the mirasidars, to whom, in the event of their being willing to cultivate, or to give security for the revenue assessable on the lands, the preference should be given. We consider that the Government has a clear right to the revenue to be derived from the conversion of waste lands into areble, but we at the same time think it preferable that this object should be attained whenever practicable, without causing the intrusion of strangers into the village community” (pages 455 and 456 of the Mirasi Papers).
The suit in the Chingleput Zilla Court (to which I shall refer later on) was disposed of by the Provincial Court on the 17th November 1844 in favour of the mirasidars.
On the 3rd July 1844 the Court of Directors addressed a despatch in continuation of their despatch, dated the 28th July 1841. They directed that “when proposals were made by purakudi ryots for waste lands in mirasi villages, they should, in the first instance, be communicated to the mirasidars, to whom, in the event of their being willing to cultivate, or to give security for the revenue assessable on the lands, the preference should be given” and they directed that on all occasions care should be taken that the just rights of the mirasidars were respected.
On the 11th February 1856 the Government was of opinion that mirasidars had no right to convert immemorial waste to any other condition or to any other use, without the permission of the Government.
On the 8th March 1856 the Government in proceedings observed: “The village communities are certainly the parties entitled to occupy the land thus newly made available for cultivation and they are quite competent to divide it among themselves according to local customs and known rights” (page 536 of the Mirasi Papers).
On the 14th May 1856 the Board of Revenue considered the whole question and reviewed the situation. They were inclined to the view that the mirasidars should have the option of cultivating waste lands of every village before strangers are admitted and that if they refused to cultivate the lands they would have no right to receive any fees or rent from the persons to whom the Government had allotted the lands.
The question of the mirasidars' rights arose again in 1856 in connection with a complaint made by one Rangappa Naik who alleged that he was dispossessed. The Board were inclined to the view that the land claimed by Rangappa Naik being poramboke was not part of the miras and that the Government could give it to whomsoever it pleased. The Government dissented from that view and in their letter to the Court of Directors observed as follows: “After a careful consideration of the case we are unable to concur in the Board's opinion of its merits. In addition to Mr. Forbes' testimony to the custom in Tanjore which in our opinion was entitled to much consideration, we held that the best authorities were agreed that in miras villages the miras extended to waste as well as to areble land. This right we remarked was not exactly the same in regard to waste as it was in regard to areble, as was clearly explained by Mr. Ellis; but in both cases it equally excluded strangers. The Board objected on the ground that the land in question being poramboke could not be regarded as simple waste; but we remarked that land required and used for roads, the sites of houses, threshing floors and some other purposes, was taken out of the areble extent as not being available for culture and was classed with rooks, hills, etc., under the term poramboke but that as soon as such land ceased to be required for such particular purpose, it ceased also ipso facto to be poramboke and became subject to the ordinary laws affecting waste. Holding these views we were of opinion that the memorialist had suffered a wrong in that his mirasi land had been given to ‘another in spite of his opposition’ (page 555 of the Mirasi Papers).
The Court of Directors in their despatch, dated the 17th December 1856, to the Government of Madras desired that in the disposal of waste lands the principles laid down in the despatch of 28th July 1841 and 3rd July 1844 (already referred to by me) should be followed.
Prior to 1855 the lands which the mirasidars actually cultivated were entered in their own pattas whereas the lands which they cultivated through paikaris found a place in the samudayam patta. But subsequently the mirasidars were called upon to declare once for all how much of their pangu lands they wished to retain in their holding and were assessed upon those lands whether they cultivated or not.
On the 22nd April 1869 special darkhast rules were issued for the Chingleput district, rule 7 states that “the mirasidars shall have the prior claim over all comers. paikaris holding pattas have the next best claim and objections made by them will hold good against non-resident cultivators. Should the mirasidars oppose the application and request that the land may be given to them in shares proportionate to their respective claims, their request shall be complied with.”
Rule 13 enacts that “beds of tanks not hitherto usually cultivated, threshing floors, burning grounds, burial places, cattle-standing grounds, land situated within ten yards of tank bunds and roads, shall not be given away on darkhast and applications for gramanattam or village-sites shall not be entertained.”
In 1872 the Government passed proceedings regarding gramanattam lands. These proceedings were passed after a consideration of the proposals of the Board of Revenue and the replies of the Collectors of all the districts. In paragraph 22 the Government observe that “the true view of the case is that gramanattam is the communal property of the villagers and that the Collector can only interfere with a view to benefit the community and when his action is consistent with the common law.” They then proceed to state that a special enactment would be necessary to alter the state of things, that in purely mirasi villages, where the entire area belongs to the mirasidars, the gramanattam no doubt appertains to them equally with the other poramboke but that such cases are exceptional and that the Board will instruct Collectors to re-assert the prerogative of Government by making it known that, except is zamindari and mirasi villages which are private property, sites on the gramanattam are not to be appropriated without permission.
Till 1890 the village accounts in several villages of the Chingleput district contained entries where the mirasidar's name was entered and also the name of the actual person who was in possession. This system was known as “doubla entry system” and sites were described as “the site of be and so resided in by so and so.” Mr. Mullaly, who was then the Sub-Collector, raised objection to this procedure. The Board in dealing with the question recommended its discontinuance but were fully alive to the difficulty of opposing the mirsidars' claims. They observe: “Undoubtedly the mirasidars have a great deal of evidence to support their claim and if it is to be disputed, the strength of Government must lie in the fact stated by Mr. Galton in the Nemalicheri case that Government has never acquiesced in it. If the system of ‘double entry’ now brought to notice for the first time is not stopped, this strong argument will cease to exist. Moreover, the Board thinks that the dictum of Government referred to in paragraph 6 of the Board's Proceedings of the 7th July 1886, No. 1547 (in G.O No. 1684, dated 16th December 1872, already quoted by me), must now be contradicted or explained. The fact that it is not mentioned by Sir Charles Turner in his judgment in the Vyasarpadi Case (Civil Suit No. 128 of 1882), or in any of the petitions, which have been presented to the Board by mirasidars, shows that it is not known to outsiders at present, but it may become known to them at any time and it reads as if it wars a distinct acquiescence in the claim.”
On the 3rd September 1890 the Government passed orders directing that the practice of registering the name of a mirasidar, as well as that of the occupant, in the house site accounts should be discontinued.
In 1892 the question of the mirasidars' right again came up for consideration in connection with the granting of sites to the Pariahs and other low caste sections of the community. The Board of Revenue sent up their proposals to the Government. In paragraph 9 of their Proceedings dealing with mirasi system the Board observe as follows:— “Briefly, the system, as it at present exists, rests on the claims of the mirasidars to all the waste lands in their villages and to the levy of swatantram or fees from paikaris or non-mirasidars who may take up land for cultivation. This claim was fully recognized in the new settlement carried out in 1876–78 (vide G.O No. 221, dated 15th February 1876) and after full consultation with the mirasidars, a memorial fee (swatantram), fixed at an average rate of two annas on every rupee of Government assessment, was declared to be leviable by the mirasidars not only on every field lying waste in each village, but also on all lands now held by the mirasidars themselves and included in their patitas, should such lands be subsequently relinquished and taken up by a non-mirasidar. The fee claimable on each field was duly entered in the settlement registers against every field liable to it.’ The only lands against which fees were not entered were those which had already been obtained by strangers and which were held under lease or patta from Government. The absolute right of the mirasidars in the waste lands of their villages was finally settled by the Courts in 1883 when the Government was compelled by the High Court to pay compensation to the mirasidars of the Vyasarpadi village, near Perambur, for waste lands taken up for public purposes.” After dealing with the judgment of Sir Charles Turner, the Board observe: “It is impossible at the present day to question the rights of the mirasidars. It is altogether unnecessary to consider whether the survival of these mirasi claims is due, as remarked by Mr. Tremenheere, to the conservative effects of the decisions of the Mayor's Court of Madras…..As forcibly remarked by the Board (Board's Proceedings No. 751, dated 1st April 1875, paragraph 8 and Board's Proceedings No. 1415, dated 25th May 1875) ‘the system is strongly rooted is law and immemorial custom. It is there and must be regardai in many respacts neither more nor less than a great but necessary evil.’ ‘It is of great antiquity, is clearly cherished’ and has existed with more or less vitality notwithstanding many years of persistent efforts to crush it’.” Regarding darkhast rules they observe as follows: “In 1869 special darkhast rules (or rules governing applications for land for cultivation) were prescribed for the Chingleput district in which this preferential claim was distinctly recognized (Board's Proceedings No. 2710, dated 22nd April 1869). In 1887 a proposal was made to assimilate these spacial rules to those of other districts in which mirasi rights are not recognized, but Government declined to sanction the changa (G.O No. 6297, dated 21st October 1887, recording Board's Proceedings No. 588, dated 21st September 1887). The chief point of difference between these spacial rules and those prescribed for other districts, apart from the fact that any land in Chingleput obtained by a non-mirasidar must pay two annas in the rupee of assessment as a memorial fee to the mirasidars, is that in mirasi villages the mirasidars have preference over all comers, while in non-mirasi villages the preference is confined to those who own lands adjoining those applied for and to pattadars who take precedence over those who do not hold lands.”
In dealing with the rights of mirasidars the Government observe: “The preferential right of the mirasidars to the occupation of the waste was deliberately reorganized by the Court of Directors in 1841, after considerable discussion in which the views of Sir Thomas Munro quoted by the memorialists were duly considered.” Then they set out Sir Thomas Munro's Minute and observe: “Sir Thomas Munro merely dissents from the proposition that the ‘exclusive use of the Waste’ was secured to the first settlers and that this right was good as against Government”; but that Sir Thomas Munro did not deny the preferential right of the mirasidars to occupation of the waste. The Government observe that “the question of ownership of Pariah house-sites is one of legal right and if the mirasidars have it they can only be expropriated by compensation; they cannot be deprived of their rights, however oppressive the exercise of them may be, by mere executive order.”
In 1909 the Special Settlement Officer (Mr. G.A.D Stuart) made certain proposals as regards mirasi rights. As regards mirasi tenure he proposed a fixed fee of two annas in the rupee of assessment of both dry and wet should be collected and paid to the mirasidars.
The Board of Revenue in dealing with Mr. Stuart's proposal resolved to omit from the Patta Settlement Register all reference to mirasi privileges.
The Government passed orders on the 19th October 1909 and in dealing with the preference Under the Darkhast rules observe that “it would not be equitable to go behind the arrangement made is the settlement of 1877–1878 recognizing the preferential right of the mirasidars to cultivate waste.” As regards swatantrams, the Government observe as follows: “The Government agree with the Board that all reference to swatantrams and miras privileges should be omitted from the re settlement register and that the following footnote should be substituted for the existing footnote in the memoirs on mirasi tenure; The right of the mirasidars to levy a fee at the rate of two annas in the rupee of the assessment of both dry and wet lands has been recognized by Government except in the case of the undermentioned fields which are free of swatantrams so long as they are held under the terms of the original grants.”
I have set out in detail the various Proceedings which throw some light on the question of the rights of mirasidars and on the attitude which the Government took up from the date of its assumption of control over the Chingleput district. It seems to me that, although the absolute right of the mirasidars to waste lands has never been acknowledged by the Government, their preferential right to the land has never been questioned; but, on the contrary, has been unequivocally admitted both by the Court of Directors and by the Government. Individual opinions of Government officials have varied as to the origin and extent of mirasi rights over waste and as to the rights of mirasidars as against the Government. The preferential rights of the mirasidars to waste lands of the village have been conceded, but there is a great divergence of opinion as to whether the mirasidars can as against grantees from the Government claim anything more than thunduvaram or the customary swatantrams. The Mirasi Papers also show that the rights and privileges claimed by mirasidars over waste have not been recognized in some districts and I find it difficult to construct out of the divergent opinions of Government officials, the Board of Revenue and the Government Orders any tenure with certain well defined incidents.
Turning to the judicial decisions on the rights of the mirasidars, we find that there is a tendency in the later decisions to require proof of the rights claimed rather than treat mirasi tenure as well recognized tenure with well defined incidents.
The first case of importance arose in 1808 and is reported in Strange's Notes of Oases, volume I The suit was in ejectment and was heard by Sir Thomas Strange and Mr. Justice Sullivan. The plaintiffs alleging themselves to be mirasidars of the village of Tondiarpat stated that the defendants had trespassed and ejected them from the nattam in their possession. The learned Judges discussed the evidence as to the claims and privileges of the mirasidars and, while holding that plaintiffs were entitled to the nattam claimed, they dismissed the suit on the technical ground that the defendants were not found to be in possession of any portion of it. The Court, however, refused to adjudicate upon the rights as between the mirasidars and the Government observing that it was unnecessary to decide how far the mirasidar's rights were subject to the intervention of the Government.
In 1836 the righta of the mirasidars as against the Government were distinctly raised in a suit filed by Rangi Ayyangar and others against the Collector of Chingleput and the persons who got possession under titles conferred by the Government. The plaintiffs alleged that they were the only mirasidars of Kan-nantangal village in Chingleput District, that the Collector (first defendant) granted permission to the defendants who were not the mirasidars of the village to bring under cultivation about 80 cawnies of waste land, that the plaintiffs offered to cultivate the whole of the waste land amounting to about 164 cawnies and in anticipation of sanction cleared about 60 cawnies for cultivation and that the plaintiffs were dispossessed by the other defendants acting under the orders of the Collector. The defendants defended the suit on the ground that the land was waste and that the collector could grant cowle to any person for bringing it under cultivation. The plaintiffs filed a reply alleging that neither the Government nor the Collector had any power to grant waste lands without the consent of the mirasi inhabitants, that waste land could not be given to strangers for cultivation without receiving a razinama from the mirasidars and that they applied for the cultivation of the whole of the waste land when they heard that strangers had applied for it. A number of witnesses were examined and documents filed and the Chingleput Court (Adalat Court) passed a decree in favour of the plaintiffs. The Court held that the evidence showed that the plaintiffs were the mirasidars and that the defendants had no mirasi rights in the village as regards the rights of mirasidars the Judge observes as follows:— “That the mirasidars alone have a right to sell and mortgage varapat land and that to every mirasi share there is a certain portion of waste land attached, but that the particular parts of the waste land which belong to each individual mirasi share are not usually known because those waste lands are seldom, if ever, divided, are facts which have been established by the evidence of witnesses in numberless cases before this Court; and as no one ever attempted to dispute the inherent right of mirasidars to the waste land, it is evident that without the consent of the proprietors of the soil, the Collector his no authority to deliver any part of these lands to other persons. In this case it appears that the seventh defendant and others gave their proposals on the 2nd May 1835; this circumstance is not communicated to the plaintiffs, but they on the 4th May 1835 sent up proposals for 40 cawnies; but after this on hearing of the proposal made by the seventh defendant and others, they on the 21st May 1835, gave in an agreement to the Tahsildar, plaintiffs' document, No. 50, promising to take all the waste lands in the village at the full tirwai and to give security for the performance of their contract. On the 15th June 1835, the Collector grants the cowle to the seventh defendant and others, in doing which the Judge is of opinion that the Collector acted contrary to the acknowledged right of the plaintiffs.” The cowle granted to the seventh defendant and others was annulled and a decree was passed in favour of the plaintiffs. An appeal was filed to the Provincial Court by the Collector but the decision of the Lower Court was affirmed on 17th November 1841. The Appellate Court considered that the only question for determination was whether the Government had power to grant waste lands in mirasi villages to strangers without first obtaining the consent of the mirasidars and decided that the Government had no such power. No appeal was filed by the Government against this decision and the Board of Directors referred to this case in their despatch, dated the 3rd July 1844, already referred to by me (see pages 456 to 469 of the Mirasi Papers).
In 1848 the plaintiff, who was a mirasidar, sued to recover arrears of swatantrams due to him for certain lands cultivated by the defendants. The defendants denied the right of the mirasidar to levy such swatantrams claimed and alleged that the lands for which they ware claimed had been left waste from time immemorial by mirasidars who declined to take them up and that the Government thereupon rented the lands to them. The suit was dismissed by the Sudder Ameen on the ground that the land in question was immemorial waste not forming part of the plaintiff's share, that the defendants held it not from the mirasidars but from the Government, that in the cowle granted to them there was no stipulation that they were to pay any swatantrams to mirasidars and that it was not customary to pay swatantrams in such cases. An appeal was filed and the Civil Judge decided that mirasidars had no right to levy swatantratas from paikaris who did not hold from them but under cowles granted by Government for lands which were classed immemorial waste.
The previous decision of 1844 does not seem to have been brought to the notice of the Court and the remark of the Judge that the question has been frequently decided in the negative does not seem to be accurate. The Judge seems to have been of opinion that, where the mirasidars fail to cultivate the lands and the Government exercises its right of granting cowles to third persons, the mirasidars are not entitled to claim any perquisites from the grantees (see pages 485 and 486 of the Mirasi Papers).
In 1844 a suit was filed in the Kumbakonam Munsif's Court by a mirasidar to recover a piece of samudayam land from the defendants on the ground that the land was within his miras and was let to the defendants and that they failed to pay the rent. The defendants pleaded that the ground was kasavargam, that they built a house and lived in it for several years paying taxes to the Government and that the plaintiff had nothing to do with the land. The District Munsif decided the suit in favour of the plaintiff and on appeal the Sudder Adalat Court confirmed the judgment of the Munsif and observed as follows: “It is clear that the land in dispute is within the mirasi of the plaintiff and therefore in disposing of the question at issue it will be necessary to consider the privileges of the mirasidars, the customs of the province and the grounds on which the defendants claim to continue the occupation of the ground. The mirasidars are the acknowledged hereditary proprietors of the soil. Those in Tanjore and other districts in which mirasi right is recognized allow their purakudis or under-tenants and others to erect houses on their mirasi lands, but their doing so, neither destroys the mirasidars' right to the lands, nor does it transfer the right to the purakudis. So long as the purakudis cultivate the mirasidars' lands, they are entered in the accounts as purakudis but on ceasing to do so, they are called kasavargams, which the appellants admit that they are. This change of denomination however does not in any way affect the relative position of the parties and the assertion of the appellants that as kasavargams, they are independent of the mirasidar, is not correct. On the contrary, the custom of the province is that, if a purakudi ceases to cultivate and becomes a kasavargain, the mirasidar requires him to pay rent for a portion of his backyard which he would not do if he remained a purakudi” (see pages 487 and 488 of the Mirasi Papers).
In 1850 the Sudder Court decided that swamibhogam should be paid to the mirasidar by a tenant let in by Government (Sudder Court Decisions, Volume I, 1850, page 119).
In 1857 the Sudder Adalat Court held that ulkudis had a right to sublet the lands they occupied and that the mirasidars were not entitled to eject the sub-lessees (see page 577 of the Mirasi Papers).
In 1860 the Sudder Adalat Court decided that, where a mirasidar desired to eject a kasavargam tenant who had been in possession of the property for a long time and had erected substantial buildings, the mirasidar was bound to compensate him for the value of the buildings (see page 585 of the Mirasi Papers).
In 1861 the Sudder Court held that, where lands were abandoned and left waste by the original cultivators, they were at the disposal of the Revenue authorities and that the former occupants had no title to eject the parties who may have been placed subsequently in possession in accordance with the rules of the district and established usage (see page 590 of the Mirasi Papers).
A similar view was taken in Punniakoti Mudali v. Munisami.
In Muniappa Mudali v. Kasturi Ranga Chariar it was held that in mirasi villages the mirasidars possessed the proprietary right in samudayam lands.
In Sakkaji Rau v. Latchmana Gaundan, the right of the mirasidars to recover swatantrams was raised. The plaintiff, as the sole mirasidar, sued to recover possession of lands and arrears of thundutirwai and the unduvaracoopatum. The lands were granted to the defendant by the Revenue Officer, but it was not clear whether the mirasidar had applied for the lands before the grant to the defendant. The first Court dismissed the suit in so far as it related to ejectment but passed a decree awarding the thundutirwai claimed. The District Court was of opinion that the plaintiff, by omitting to take a revenue engagement for the lands, had relinquished his mirasi rights and reversed the decree of the Lower Court. The High Court at first held that, though the omission of the mirasidar to cultivate might empower the Revenue authorities to introduce a cultivator, it did not further prejudice the prescriptive rights of the mirasidar and that those rights would not be lost by the mirasidars declining to receive a patta for the lands. A review of the judgment was allowed and the case was re-argued, A Full Bench of the High Court considered the reports of the Collectors set out in the Mirasi Papers and the orders of the Board of Revenue and the Government and was of opinion that from the variety of opinions expressed they could not lay down as a uniform rule that mirasidars were entitled to dues from cultivators balding lands within the area of the mirasi estate under pattas from Government. They were of opinion that, where the right was denied there should be inquiry whether by custom it prevails on the estate or if there are not sufficient instances on the estate to afford grounds for a decision, on similar estates in the neighbourhood. A finding was called for on the following issue: “Is the mirasidar entitled, by the custom of the estate or neighbourhood, to demand payment of any, and, if any, what dues from ryots cultivating, under pattas from the Government lands for which the mirasidar has refused to engage?”
Though it is expressly stated in the judgment that there has been no law depriving the mirasidars of any privileges they may have customarily enjoyed, their Lordships after a survey of various Government Orders and opinions of officials were not prepared to lay down any general rule as to the rights of mirasidars but left the matter to be decided on evidence in each locality. This decision marks an important departure from the attitude taken up by Courts previously and makes usage in each locality the criterion for coming to any conclusion as regards the rights of mirasidars.
In 1882 the rights of the mirasidars as against the Government came directly in question in respect of a piece of land within the mirasi village of Vyasarpadi. The plaintiff alleged that the mirasidars of Vyasarpadi sold a portion of waste land situated in their mirasi estate to him, that he was in possession of the same and that about the 26th April 1881 the officiating Superintendent of the Gan Powder Factory, acting on behalf of and under instruotions from Government, wrongfully took possession of the land and ejected him. The plaintiff claimed to recover possession of the land and also compensation. The Secretary of State for India filed a written statement pleading that the land was the property of the East India Company and subsequently became the property of the defendant and was in possession of the Government that some parsons erected a but on the land and planted a hedge and in so doing committed trespass and that, after being warned to remove the said but and hedge, they were removed by officers of Government. The suit came on for hearing before Sir Charles Turner sitting on the Original Side of the High Court and a decree was passed in favour of the plaintiff. The question for determination was whether by the customary law mirasidars had any title to the waste lands within the area of the mirasi estate. With reference to mirasi rights to waste. Sir Charles Turner observes as follows: “One question constantly occurring was the rights of the mirasidar to waste. The better opinion appeared to be that he had a right to the waste, even though he paid no revenue for it, but that, if he omitted to cultivate what was cultivable by paikaris the Government might issue pattas to strangers for its cultivation. There resulted a long struggle between the mirasidars and the Government, the former unable to cultivate and unwilling to pay assessment on much of the land over which they claimed rights and on the other hand resisting the introduction of strangers. When pattas were granted to strangers, the mirasi right was not altogether lost and, in some villages the mirasidars succeeded in obtaining from the ryots introduced by Government recognition of their interest in the soil by the payment of small ceases.” After referring to the state of things is Bengal where a satisfactory solution had been arrived at by the Regulation 7 of 1822 he observes as follows: “From the authorities I have consulted in this and other cases which have come before the Court, I hold that mirasidars have in this part of the Presidency certain property in the waste and that property enables them to dispose of the occupancy of the lands subject of course to the payment of revenue and that this property is not necessarily lost by non-payment of revenue. I need not refer to any further authority than the replies made by Mr. Ellis and Mr. Sankarayya who was for many years Sarishtadar in the Huzur Cutcherry of Madras.”
In Subbaraya v. The Sub-Collector of Chingleput, the question of the mirasidars' rights was considered. The plaintiffs, as mirasidars of the village of Vallipuram in the Chingleput district, alleged that a stranger made a darkhast for certain lands in their village, that they objected to such a grant and claimed that a patta should be issued in their own names and that the lands should be put in their possession. The defendants pleaded that the lands, although formerly held in common by the mirasidars of the village, ware subsequently relinquished, that it was competent for the Revenue authorities to arrange for the cultivation of the lands without reference to the former registered pattadars, that the lands were unoccupied waste at the disposal of the Government when they were assigned to the defendants and that the Civil Courts could not take cognizance of the suit. The District Munsif held that the mirasidars had a preferential right to the lands and that the grant of a patta to the second and third defendants was invalid and that the Civil Courts had jurisdiction. The District Judge held that the Court had no power to order the Revenue authorities to transfer the registry of lands from one person's name to another and that, if the mirasidars could be shown to have formally relinquished the plaint lands or acquiesced in such relinquishment by the former pattadars acting as their representatives, they had no cause of action against any of the defendants. Holding that the claim of the plaintiffs was one which the Government was bound to recognize, he was of opinion that the plaintiffs had relinquished the lands and had no proprietary right to them, Sir Charles Turner was of opinion that, where a mirasidar ceases to cultivate waste lands within his mirasi estate, or neglects to cultivate cultivable waste, the Government is at liberty to issue pattas to those lands to any stranger who will undertake to pay the assessment and that where there has been a mere relinquishment of the revenue engagement by the mirasidar he does not lose his mirasi right. He was also of opinion that a Civil Court cannot compel the Revenue authorities to make settlement with a particular person where the mirasidars had abandoned their engagement and so given occasion to the Revenue authorities to offer engagements to others, Mr. Justice Innes was of opinion that the mirasidars had abandoned their right and that the Collector was consequently empowered to grant the lands to strangers where, however, the relinquishment was not absolute but only for a period he was of opinion that, until the lands were sold for arrears of revenue, the Collector would have no power to dispossess the mirasidars absolutely. This case seems to have proceeded on the footing that a relinquishment by the mirasidars confers absolute power to Collectors to grant the lands to others and that the mirasidars cannot subsequently lay any claim against the persons to whom the lands have been granted by the Government.
The view of Sir Charles Turner that it was open to the Collector to introduce strangers if the mirasidar does not pay the Government dues was considered and dissented from in Secretary of State v. Ashtamurthi, where it was held that the only remedy was a sale of the holding for arrears of revenue and that the Government had no right to let in any new pattadar without having recourse to the remedies prescribed by Act II of 1864. Mr. Justice Shephard dissented from the view expressed by Sir Charles Turner and held that a suit would lie to compel the Collector to settle the assessment with the real owner and not with a third person. In dealing with the rights of janmis in Malabar he compares them to those of mirasidars and observes as follows “The rights of the janmi are certainly not less extensive than those of the mirasidar with which they have often been compared (see Mirasi Papers, page 434 and Appendix I). Tet the mirasidar is generally entitled to a prior right to under take the cultivation and consequent assessment—Fakir Muhammad v. Tirumala Chariar, Mirasi Papers, page 219 and he does not lose any prescriptive rights he may have by the fact that patta is given to another—Subbaraya v. The Sub-Collector of Chingleput.” Mr. Justice Shephard evidently thought that Subbaraya v. The Sub-Collector of Chingleput was in favour of the mirasidars' preferential right.
In Sivantha Naicken v. Nattu Ranga Chari, the dispute was between shrotriyamdars and mirasidars in respect of compensation awarded by the Government for lands taken up under the Land Acquisition Act I of 1894. The lands taken up were immemorial waste or jungle lands and the compensation amount represented the rent for the occupation of the land for five years as an artillery range and the value of the trees removed from it. The District Judge was of opinion that the shrotriyamdars were entitled to compensation as the evidence showed that they were actually exercising their right as owners of the land in question and leasing out those uncultivated lands on long leases. Mr. Justice Davies and Mr. Justice Benson were of opinion that the only question was whether as mirasidars they were entitled to compensation for immemorial waste lands taken up under the Land Acquisition Act and observed that there was no allegation or evidence that such a right had ever been claimed or established against Government in villages where Government had not alienated its right to third parties. They observe as follows:— “The rights of the mirasidars over immemorial waste (apart from their preferential right to cultivate) appear to be confined to grazing, cutting firewood and similar common privileges, as stated by the Board of Revenue in the passage quoted in this Court's judgment in Sakkaji Rau v. Latchmana Gaundani, but those rights were liable to be extinguished by the Government alienating the land. As already remarked there is nothing to show that the Government has ever treated the mirasidars as entitled to compensation for such curtailment of their communal rights. The shrotriyamdars stand in the place of Government is this case and the evidence is that they have from time to time leased portions of the waste lands of the village to the mirasidars of the village and sometimes to strangers without giving the mirasidars a share of the rent or other compensation. There is moreover the recent admission of one of the leading mirasidars, who is also an appellant, that in the village 1 the poramboke lands belong to the shrotriyamdars: the ‘tarisa’ or uncultivated lands which are not in the holding of anybody else do also belong to the shrotriyamdars only’ (Exhibit B).” Govindarajulu Naidu v. Venkataramanjulu Naidu where the mirasidars were allowed a part of the compensation given for land taken up under the Land Acquisition Act was distinguished on the ground that the facts were different.
From the facts appearing in Sivantha Naicken v. Nattu Ranga Chari it is clear that the shrotriyamdars and not the mirasidars were proved to have exercised acts of ownership on the land. The observations of their Lordships that the Government never treated the mirasidars as entitled to compensation for the abandonment of communal rights is not correct. The Mirasi Papers and the judgment of Sir Charles Turner in the Vyasarpadi case show that compensation was awarded by the Government not only under decrees of Court but also out of Court. The decisions of the Sudder Court and the Provincial Court of Chingleput where the claims of the mirasidars have been distinctly recognized over waste land and where strangers introduced by Government have been ejected at the instance of the mirasidars, have not been noticed. Though the judgment is perfectly intelligible on the facts found that the shrotriyamdars exercised acts of ownership over the land and the mirasidars admitted their rights, I am unable to follow it where the broad proposition was laid down that the rights of the mirasidara were liable to be extinguished simply by the fact that the Government gave pattas to third persons.
Mr. Justice Benson, who was a party to Natesa Gramani v. Venkatarama Reddi expressly states in his judgment, when referring to Sivantha Naicken v. Nattu Ranga Chari that the decision proceeded on the facts proved in evidence as to the particular village and does not lay down as a matter of law that poramboke lands in villages such as this in Chingleput district must necessarily be held to be the property of the zamindar.
In the Secretary of State for India v. M. Krishnayya a question arose as to the rights of the Government as regards forests and immemorial waste in South Kanara District. This case has nothing to do with the mirasi rights in Chingleput District and, so far as the present question is concerned, it is orily authority for the position that there is a general presumption in law that waste lands belong to Government. At page 282 there is the following observation: “Mr. Ellis compared the land tenures in Kanara to those in the Arudi Karai villages to the south of the Coleroon on the East Coast, where the right of Government to the waste lands has now, after protracted contest, been established as against the mirasidars.” No reference has been made to any authority to establish the broad proposition laid down I agree with Mr. Justice Sankaran Nair in holding that, with the exception of the observation in Sivantha Naicken v. Nattu Ranga Chari which is explained in Natesa Gramani v. Venkatarama Reddi as having been decided not on any general principles of law but with reference to the facts of the particular case, there is no authority for the above observation and that it should be treated merely as an obiter dictum.
In Natesa Gramani v. Venkatarama Reddi the question arose as to whether a second crop raised with water from certain ponds in poramboke or unassessed lands in the village was liable to any claim for rent by the zamindar. Both the Revenue Courts before whom the suit came on and the District Court on appeal found that in that village of the Chingleput District poramboka or unassessed lands were generally the property of the mirasidars. The High Court accepting the finding decided in favour of the mirasidars.
Though at first sight it appears that this case was decided on the concurrent findings of the Lower Courts, the Lower Courts seem to have arrived at the finding more with reference to the considerations as to the rights of the mirasidars as set out in the Mirasi Papers than on the evidence which was very meagre. This case is, however, important as explaining Sivantha Naicken v. Nattu Ranga Chari. In dealing with the case Their Lordships Mr. Justice Benson and Mr. Justice Wallis observe as follows:— “With regard to Sivantha Naickm v. Nattu Ranga Chari, we think the decision proceeded on the facts proved as to the particular village and does not lay down as a matter of law that poramboke lands in villages such as this in the Chingleput district must necessarily be held to be the property of the zamindar”.
Mr. Justice Sadasiva Ayyar is of opinion that “there can be little doubt that till 1886 the inclination of the High Court was to hold that mirasidars had ownership right in immemorial waste and in nattam sites also.” I do not think that the cases decided subsequently overrule the cases decided prior to 1886.
In 1894 a suit was filed in the District Munsif's Court at Tiruvallur by one Bhashyakarlu Nayudu, the ekabhogyam mirasidar of the Kathirvedu village, against the Secretary of State claiming to be the absolute proprietor of the grama-nattam in the village and seeking for a declaration of his title and an injunction restraining the defendant from levying any assessment on it. The written statement set up the absolute right of the Government to allot land for buildings and to allow cultivation on such lands as it thinks proper to the exclusion of the mirasidars. The second issue referred to the question of the absolute right set up by Government and the District Munsif held that, both on the general incidents of mirasi tenure and on the facts of the particular case, the mirasidar had a proprietary interest in the nattam but had no right to cultivate it as he pleased.
Though the appeal by Government to the District Court was dismissed, the matter was not taken up to the High Court.
Original Suit No. 136 of 1889 on the file of the Chingleput District Munsif's Court was a suit by the mirasidar to recover the value of trees standing on the gramanattam poramboke which had been out by some pariahs under orders of the Sub-Collector. The Government was a party to the suit. The plaintiff obtained a decree which was confirmed by the District Court and the Government did not carry the matter any further.
In Chinnan v. Kondam Naidu, Mr. Justice Sadasiva Ayyar and Mr. Justice Spencer considered the nature of the thunduvaram demanded by mirasidars. Mr. Justice Sadasiva Ayyar was of opinion that the original mirasidars were entitled to demand from the ulkudi kudivaramdar some swatantrams including what was called thunduvaram the amount of which swatantrams was a certain proportion of the gross produce raised by the ulkudi tenant. He considered swatantrams as a “fraction of the fruits of the kudivaram right which fraction can never be lost by the mirasidar.” Mr. Justice Spencer was of opinion that, when there was a body of mirasi proprietors, there were three instead of two to share and that the thunduvaram was the landlord's share. This view is supported by the observations of Collins, C.J and Muthuswami Ayyar, J., in Chidambara Pillai v. Thirwengadathiengar.
Appeal suit No. 76 of 1891 was decided with reference to a dispute between the shrotriyamdar and the mirasidars of the village of Uttukadu as to compensation. The land which was taken up by the Government lay waste from time immemorial and was stony and incapable of cultivation, unless it was first levelled and cleared of stones. The mirasidars, although they admitted that the shrotriyamdar had the melvaram right in the property, contended that, Uttukadu being a mirasi village, the kudivaram right vested in them. The District Judge dismissed the suit on the ground that the plaintiffs did not prove that they were mirasidars. On appeal Their Lordships Mr. Justice Muthuswami Ayyar and Mr. Justice Best found on the evidence that; the plaintiffs were mirasidars. They held that the shrotriyamdar and the mirasidars had in law a joint interest in the land taken up and that the compensation should be apportioned between them both. The whole judgment proceeds on the footing that, if the plaintiffs proved that they were mirasidars of the village, their joint right to waste land followed as a matter of course.
Reference has been made by Mr. Grant to the observations of Mr. Justice Bhashyam Ayyangar in Madathapu Ramayya v. The Secretary of State for India, to the effect that the gramanattam or village-site, is presumably the freehold property of the Government. The nattam in question was in the Kistna district where mirasi rights do not exist. There can be little doubt that in non-mirasi villages the control of the gramanattam vests in the Revenue authorities and that they are at liberty to grant portions of it at their discretion to applicants. I need only refer to The Collector of Godavari v. Peddu Rengayya and Putloor Boyanna v. Golusu Asethu. In the case of mirasi villages different considerations prevail and the question is how far the absolute right of Government to waste lands is controlled by such of the incidents of mirasi tenure as are in force by virtue of custom or usage recognized by the British Government and enforced by judicial decisions of competent Courts. If the question was merely one of preference the decision in Fakir Muhammad v. Tirumala Chariari, which was followed in Theivu Pandithan v. Secretary of State for India(5), would apply, but if the mirasidars have a proprietary interest in the soil the rights are capable of being enforced if ignored by Government.
The conclusion I have come to is that while on the one band the absolute right of the mirasidars to waste land has not been made out it is open to the mirasidars to prove that by custom or usage they have a proprietary interest in waste lands. Where such a right is proved the Government has no power to ignore the mirasidars and grant the land whether it be cultivable wastes or other poramboke to strangers and the mirasidars can enforce their right by recovering possession. The absolute right of the Government to do what it likes with the waste in mirasi villages has not been established. The various Orders of the Court of Directors and the Local Government and the decisions I have already referred to negative any such right.
It is argued by Mr. Grant that the effect of Act III of 1905 is to vest in the Government all waste lands irrespective of any rights which vested in the mirasidars before the date of the passing of the Act. It seems to me that the effect of Act III of 1905 is to vest in the Government lands which are not proved to be private property and that it is not a confiscatory measure. The effect is simply to throw the burden of proof, in cases of waste land, on persons who claim that it is their property. Even prior to the passing of Act III of 1905 the effect of the judicial decisions was that prima facie waste lands vested in the Government. I need only refer to Vyakunta Bapuji v. The Government of Bombay and Bhaskarappa v. The Collector of North Kanara which were referred to with approval in the Secretary of State, for India v. M. Krishnayya. As pointed out by Mr. Justice West in Bhaskarappa v. The Collector of North Kanara though the introduction of the British rule did not extinguish the private rights already acquired the principle from which we must start is that waste lands belong to the State. This, however, does not prevent mirasidars from showing that by usage and custom they have a proprietary interest in the waste lands of a village and that the rights of Government are controlled by their rights. No doubt the right of the Government to see that lands do not lie waste while there are parsons who are willing to engage with Government and cultivate the lands entitles them to grant lands to strangers if the mirasidars are unable or unwilling to bring waste land under cultivation, but when they are willing and bonâ fide apply for waste lands, it is difficult to see how their claims can be rejected.
I have hitherto dealt with waste lands in general because it seems to me that gramanattam is only one of the kinds of the poramboke and there is no difference in principle between the rights of mirasidars to the various kinds of waste. So far as nattam is concerned, it is land which has been set apart for erection of dwellings for mirasidars and the ulkudi ryots and also for village servants (the cheri being the portion set apart for Panchamas and ‘Untouchables’). It was in all probability the original homestead of the settlers and the view taken by the Government in the G.O of 1872 already referred to by me was that it was communal property of the villagers. I am unable to accept the argument of Mr. Grant that though mirasidars may have preferential rights as regards cultivable waste the unoccupied nattam is the absolute property of the Government and can be granted to any body it pleases without reference to the needs of the mirasidars. I am also unable to accept the contention of Mr. Srinivasa Ayyangar that the gramanattam being land which cannot under any circumstances be assessed the Government can have no right to dispose of the nattam as the right to claim revenue is the basis on which the right of interference by Government in mirasi villages stands. The Government has always the paramount right of disposing of waste lands subject of course to such vested rights (either in mirasidars or communities) as may be proved to exist. In mirasi villages the division and allotment of waste was left to the mirasidars as parties entitled to occupy the land and quite competent to divide it among themselves according to local custom and known rights (G.O, dated 8th March 1856). It seems to me that the Government on the dissolution of village communities stands for executive purposes in their place and is clothed with all the rights of management which originally vested in the mirasidars jointly. There can be little doubt that, before the dissolution of the village communities, the affairs of the village were managed by the mirasidars in common. They were responsible for the distribution of lands and they collected certain fees or merahs from the villages to meet the expenses of the village. The dissolution of the village communities naturally vested in the Government the administrative duties which were formerly exercised by the mirasidars. The right of Government to allot lands to non-mirasidars and to put such persons in the position of ulkudis also gave the Government an interest in the nattam for, as a corollary to that right, the right of Government to grant sites in nattam followed. It would be against all principle to hold that, though the Government can confer waste lands on ryots, they cannot give the ryots sites in the nattam to build on. The Government has, therefore, a double right in the nattam. One is the right of superintendence over the nattam which originally vested in the mirasidars collectively and the other is to grant sites on the unoccupied portions of the nattam to ryots to whom they grant waste lands.
I do not think Courts ought to attach much weight to the argument that any recognition of the rights of the mirasidars would work a great hardship on other sections of the community. There can be little doubt that mirasi rights are capable of abuse but the remedy is by legislation. As observed by Innes, J., in Fakir Muhammad v. Tirumala Chariar, the estimate of the conduct of the mirasidars in this respect would have no bearing on the question of their rights.
A review of the authorities leads me to the conclusion that the mere fact that Government grants the whole or any portion of unoccupied gramanattam to strangers is no ground for holding that the preferential rights of the mirasidars are extinguished in cases where the mirasidars have proved the unoccupied nattam in the village has been used by them as communal property or has been treated by the Government as such. In considering whether the mirasidars have anything more than the ordinary rights of preference which are conferred on non-mirasidars by the darkhast rules framed by the Government, it is difficult to ignore the following facts:—
(1) the resolution of the Court of Directors in 1844 and the Government Order in 1872;
(2) the acknowledged fact that mirasidars had a right to levy thunduvaram which has been defined by the Board of Revenue in their Minute of the 5th January 1818 as “the clear landlord's rent” and by Mr. Maclean in his Manual of Administration as “the profits of the mirasidar owner after paying Government dues”
(3) the award of compensation to mirasidars where waste lands were acquired;
(4) decrees of Court; granting relief to mirasidars in suits for ejectment which necessarily presuppose the possession of an interest in immoveable property; and
(5) the framing of separate darkhast rules for the Chingleput district in 1869 and the deliberate distinction between mirasi and other villages in the previous settlements of the district and in the Standing Order No. 39 of the Board of Revenue issued in 1878 where “Collectors are directed to assert the prerogative of Government by making it known that except in zamindari villages, mirasi villages and villages which are private property sites in gramanattam cannot be appropriated without permission.” I find myself unable to hold as a general rule that the preferential right of the mirasidars in mirasi villages is the same as that of ryots in non-mirasi villages.
The materials before me are not sufficient to enable me to hold that the mirasi system is a well defined tenure with certain well recognized incidents so as to enable one in every case to start with the presumption that the gramanattam is the exclusive property of the mirasidars. The rights of mirasidars in the various administrative districts into which the territory formerly known as Tondaimandalam was divided after British occupation have not been uniformly recognized by the Government and while in some districts the mirasidars' claims dwindled down into a mare preferential right they were more extensive in others. There can be little doubt that the ryotwari system introduced by the East India Company dealt a very severe blow to the communal holding of property and destroyed village autonomy to a considerable extent. The granting of separate pattas and the right claimed by Government to confer occupancy rights on non-mirasidars in case mirasidars refused to engage or committed default introduced radical changes in the communal principle. As observed by Sankaban Nair, J., “it is now difficult to say whether there is any presumption of mirasi right in any district or to what extent the village community have succeeded in preserving their rights.”
The nature and extent of mirasidars' rights over waste in any particular district or portion thereof must be proved in each case and I do not think that it can be laid down as an abstract proposition of law that the right to eject grantees from Government of sites in the nattam or cheri follows as a matter of course where, however, mirasidars prove that they have been enjoying the nattam as common property or that by custom or user they acquired rights over it, the mirasidars have the undoubted right of requiring the Government to recognize such rights and of ejecting parsons brought on the nattam or cheri by Government in violation of their rights.
The reference to the Full Bench is general and I do not think it necessary to find whether in the present case the mirasidars have proved their alleged rights. This is a matter for the Divisional Court.
To conclude I am of opinion that—
(1) in mirasi villages the rights of Government over waste (including nattam and cheri) are subject to the rights of the mirasidars;
(2) the nature and extent of such rights are not uniform throughout the Presidency but vary and the onus is on the mirasidars to prove that any specified incident attaches to mirasi rights in any particular district, there being no presumption that gramanattam is the exclusive property of the mirasidars;
(3) the rights of mirasidars over waste are not extinguished by the mere fact that the Government grants pattas to strangers;
and would answer the reference accordingly.
N.R
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