Vasireddi Venkata Lakshmi Narasamma v. Secretary Of State

Seshagiri Aiyar and Napier, JJ.:— This is a suit by the trustee of a temple for a declaration that the lands belong to him and that the Secretary of State is not entitled to put up the grass thereon to auction or to interfere in any manner with the right of the plaintiff. The plaint, as originally instituted, contained the statement that the inam granted to the temple comprised lands on both sides of the Tungabhadra river and that consequently the entire bed of the river belonged to the temple. It has been found by the Subordinate Judge, and we see no reason for not accepting that finding, that the boundary of the inam village is the river itself and that no lands on the other side of the river were granted to the temple. On this finding it has been argued before us that the plaint temple is entitled to half the bed of the river. The learned Government Pleader took exception to this change of case on the part of the plaintiff; but we think that in the circumstances of the case the plaintiff should not be refused relief because he put his case too high.

2. The point for consideration therefore is where a grant is made fixing one of the boundarise of the lands granted as a river, whether the grantee is entitled to half the bed of that river.

3. The decisions of the English Courts seem to be uniform in this respect. Lord v. Commissioners for the City of Sydney(1) and Maclaren v. Attoyney-General for Quebec(2) and other cases referred to in these two decisions have accepted the principle that where the lands are bounded by a river, the grantee is entitled to lands ad medium, filum aquae. In City of London Land Tax Commissioners v. Central London Ry.(3) the House of Lords applied this principle to the case of highways. All the learned Lords who took part in the decision affirm that it is an established principle of law that the

“ownership of frontages on either side of the street extended ad medium filum viae, just as, had the division or boundary between two subjects been a stream, the ownership of the riparian proprietors would have extended ad me-diam filum fiaminis.”

4. In Whitmores (Edenbridge) Lim. v. Stanford(4) this rule was extended to artificial channels. In this country, Balbir Singh v. Secy. of State(5) accepts the principle of the English decisions. Powell v. Powell(6) is to the same effect. In Secy. of State v. Kadirihutti(7), the learned Judges say that the rule that riparian proprietors are entitled to the bed of the river ad-medium flum is not applicable to navigable rivers. That is an indication that if it is a non-navigable river, the principle of English Law would be applied in this country. In Sundaram Ayyar v. Municipal Council of Madura(8), Justice Bashyam Aiyangar extended the doctrine to highways. The matter was recently discussed by three Judges of this Court in Secy. of State v. Janakiramayya(9). Oldfield, J. seems to doubt whether the principle referred to is applicable to India. Sadasiva Aiyar, J. on the other hand apparently sees no objection to the applicability of that doctrine to India. Bakewell, J. expressed no opinion on that question. The learned Government Pleader referred us to two cases decided by the Judicial Committee as throwing some doubt upon the applicability of a similar principle to Indian conditions. In Sri Balusu Ramalakshmamma v. Collector of the Godvari District(10), the decision turned upon the fact that the ownership of the bed of the river was not the question raised for decision in the Courts below. In rejecting the contention which was put forward for the first time before the Board, Lord Hobhouse made use of these observations:

“The result is that their Lordships having grave doubts whether the presumption applicable to little English rivers applies to great rivers such as the Godavari, would require to know much more about the river in question and the mode in which it has been dealt with before deciding as to the presumption or its rebuttal.”

5. In a more recent case reported as Raja Srinath Roy v. Dinabandhu Sen(11), in which the question related to the right of fishery possessed by a riparian proprietor, Lord Sumner in delivering the judgment of the Judicial Committee says at p. 531 (of I.L.R 42 Cal.) alter reviewing at considerable length the English and American law on the subject:

“In proposing to apply the juristic rules of a distant time or country to the conditions of a particular place at the present day, regard must he had to the physical, social and historical conditions to which that rule is to be adapted.”

6. Having regard to the observations of the Judicial Committee and to the difference in opinion between two learned Judges of this Court, we do not think it desirable that we should finally dispose of this matter. The question is of very great importance to the Government as well as to private proprietors, and we think it desirable that the opinion of the Full Bench should be invited on the subject. We therefore propose the following questions for the opinion of the Full Bench: Whether when Government makes a grant in India of a village which is described as bounded by a non-navigable river, the right of the grantee extends to half the bed of the river, and whether the onus of proving that the grant did not cover the bed of the river is on the grantee or on the grantor. This last question has become necessary having regard to the observations of Lord Hobhouse in Sri Balusa Ramalakshmamma v. Collector of the Godavari District, wherein he says the question of presumption or its rebuttal in a country like India would depend upon considerations different from those which obtain in England.

OPINION

7. In Ben. Regn. 11 of 1825, the legislature, acting, as recited in the preamble, on reports from the law officers as to the provisions of the Mahomedan and Hindu laws and on a consideration of the decisions of the Sudder Adalut, proceeded in S. 4 to make a distinction as to the ownership of churs in navigable and non-navigable rivers, which in the opinion of Sir M.R Westropp, C.J, in Baban Mayacha v. Nagti Shravucha(12) raised an inference, though not conclusive that the beds of non-navigable rivers are generally private property. The observation of the Judicial Committee in John Doe v. East India Company(13), appears to proceed upon the same view. The law was laid down in the same way in Rajah Neelanand Singh v. Rajah Teknarain Singh(14), and by the Calcutta High Court in Hunooman Doss v. Shamchurn Bhutta(15) and Bhageeruttee Dabea v. Greesh Chunder Chowdhry(16), where the Court held that:

“by the common law of this country the right to the soil of the bed river when flowing within the estates of different proprietors, belongs to the riparian owners, ad medium filum aquae.”

8. In this Presidency the decisions of the Sudder Court in Sree Rajah Oopalapaty Jogee Jaganadheruze v. Sub-Collector of Rajahmundry(17), and of the High Court in Subbaya v. Yarlagadda(18) were to the same effect. It is only in the case of navigable rivers that the presumption has been laid down the other way by the Judicial Committee in Eckowri Singh v. Heeraloll Seal(19) : Felix Lopez v. Mudhun Mohun Thakoor(20) and Nogender Chunder Ghose v. Mahamed Esoff(21), while in Forbes v. Meer Mahomed Hossein(22), it appears to be assumed that in the case of non-navigable rivers the ownership of the bed is in the riparian owners. The decision of the Judicial Committee in Kali Kissen Tagore v. Jodoo Lal Mullick(23) and Khagendra Narain Chowdhry v. Matangini Debi(24), appears to proceed on the same basis. In Sri Balusu Ramalakshmamma v. Collector of the Godavari District, where the appellant before them sought to base her title to the lanka in question on the presumption arising from the fact that she was the owner of both banks of the river, their Lordships observed that such a claim was not made by the pleadings or by the issues, and was one about which much evidence might and probably would have been given if it had been raised; and they accordingly declined to discuss the question because it was not relevant to the case made by the plaintiff, and merely observed that, having grave doubts whether the presumption applicable to little English rivers applies to great rivers such as the Godavari, they would require to know much more about the rivers in question before deciding as to the presumption or its rebuttal. This reservation in a case in which the question in their Lordships' opinion did not arise and in which the authorities above referred to were apprrently not cited, cannot be taken as a ruling that the presumption is generally inapplicable in the case of non-navigable rivers in this part of India. Certain dicta as to the ownership of river-beds were also cited from recent cases in this Court, but they are far from uniform and in none of these cases was the present question considered in the light of the authorities. We therefore consider it unnecessary to refer to them. The result of the authorities in our opinion is that, as regards a grant of land in India described as bounded by a non-navigable river, the onus of showing that the grant did not cover the bed ad medium filum aquae is on the grantor. The presumption may be strong or weak according to the circumstances of the particular case, and the amount of evidence required to rebut it will vary accordingly. We do not think it desirable to attempt to lay down any more definite rule. Reference has been made to the Madras Land Encroachment Act, Act 3 of 1905, but that Act cannot affect the pre-existing rights, if any of the grantee in this case.

S.N/R.K

9. Reference answered.