Chinnathambi Goundan v. Venkatasubramania Ayyar And Another S

JUDGMENT

This appeal arises out of a suit by Shrotriemdars to eject the defendant from land which is part of a village site in the plaintiffs' shrotriem village. The allegation in the plaint is that the suit land has been for a long time vacant and is required for making a road to lead to the Sudra Street in the village, and that the defendant has put up a hut recently without authorisation obstructing the use of the new road. The village in question is held under an inam title deed of 1865 which is Ex. B. It is in the usual form, the Inam Commissioner on behalf of the Government acknowledging the shrotriemdars' title to a certain extent of dry land, garden land and wet land “besides poromboke.” It imposes a quit rent and confirms the inam to the inamdar in freehold with the recital that “the land will be your own absolute property to hold or dispose of as you think proper subject only to the payment of the abovementioned quit rent.” There is no evidence of any previous judicial proceedings in which it was suggested that this was a village in respect of which the land revenue alone had been granted and which therefore was subject to the Madras Estates Land Act. The learned Subordinate Judge has held that the grant is a grant of the land as well as of the revenue and that the village does not fall under the Estates Land Act as it stood at the time of the suit. I see no reason to differ from that conclusion.

We are therefore concerned with the case of a piece of village site situated in a whole inam village in which the plaintiffs are the owners both of the melwaram and the kudiwaram and we have to read the words “besides poromboke” in the grant in the light of past decisions the effect of which is that the grant includes unoccupied land subject to any existing communal rights which there may have been. Now a village site poromboke is in certain ways different from other communal lands. Ordinarily, land which is classified as village site poromboke, whether in a Government village or in one privately owned, includes not only vacant land held with a view to its assignment for occupation by houses, but also land which is vacant because it is used for the purposes of all the villagers in general, e.g, for paths, meeting places, cattle stands etc. What I wish to make plain is that very frequently a village site poromboke includes not only land reserved for assignment to prospective house builders but also land reserved for general communal purposes which cannot from its nature properly come into the exclusive occupation of any individual. We are concerned in the present case with a piece of land which in the past has been treated as land available for occupation by houses but is now according to the plaint to some extent required for the purpose of a road or path to serve other houses in the village. To my mind the purpose which the plaint recites cannot be treated as a diversion of the land from the object for which it was reserved as a village site poromboke, for clearly houses are of no use unless there is a means of access to them.

The appellant contends that the shrotriemdars have no title in land which is part of the village site or gramanatham. It seems to me obvious that land reserved for building purposes is land which from its very nature must be controlled by some authority with a view to its being eventually in the exclusive occupation of an individual villager. It is not land which has always to be kept for the benefit of all the villagers and it is not land on which any individual villager can be allowed to squat without authorisation. The very nature of the land implies a controlling authority to regulate its ultimate occupation. I am of opinion that by the recognised practice of this Presidency—excluding areas with a special revenue law such as Malabar—the control of unoccupied village site vests in the proprietor whoever he may be. In ryotwari areas that control is exercised by the Government in the Revenue Department by means of the grant of house site pattas without which occupation by an individual villager would be unauthorised. In Zamindari areas that control is exercised by the Zamindar. In a shrotriem village not falling under the Estates Land Act, I am of opinion that according to the common practice of this Presidency the control of such unoccupied village site vests in the shrotriemdar. My attention has been drawn to the decision of a Bench of this Court in Venkatarama Sivan v. Secretary of State for India(1) which is a case arising out of a whole inam village wherein the Government claimed the right to penalise an unauthorised occupation of a cremation ground poromboke. It was held in that case that the Government was vested with the right of protecting such communal ground for the benefit of the community and there is an observation in the judgment of Spencer J. to the effect that the Government is the custodian of the rights of the public in lands such as sites for pagodas, burning grounds, threshing floors, cattle stands, unassigned house sites and backyards. The suggestion is that the legal title vests in the Government in trust for communal purposes. The judgment of Sadasiva Ayyar J. recognises the difficulty of reconciling this view with the decision of the Privy Council in the Urlam case so far as natural streams are concerned and the learned Judge is not prepared to go any further than to assert the legal ownership of the Government in burial and burning ground porombokes and public road porombokes in inam villages. This decision is referred to in the case of Kannayiram Pillai v. Vieudupatti Gins in which the Bench points out that, though in burial grounds, threshing floors etc., the rights of the community may be regarded as vested in the Government, so long as the character of the site does not change, where the rights of the public amount to a bare easement, there is no reason to hold that the inamdar has no title to the soil over which that easement operates. I must say that I find it rather difficult to understand why the rights of an inamdar should be different in the case of a burial ground from what they are in the case of an irrigation or drinking source. There seems to be no apparent reason why in the one case the land should vest in the Government, as the custodian of the beneficial interest of the community should be the Government, whereas in the other case it should vest in the inamdar. Under the Estates Land Act there is a differentiation between porombokes and a measure of Government control has been imported under S. 20 with reference to lands set apart for the common use of the villagers which is not found with reference to other classes of porombokes referred to in the definition of ryoti lands in S. 3(16). It is not for the purpose of this case necessary to consider whether the decision in Venkatarama Sivan v. Secretary of State for India(2) is in conflict with the decision in Kannayiram Pillai v. Vieudupatti Gins. But it does appear to me necessary to point out with great respect to the learned Judges who decided the former case that the reference to village sites in the judgment of Spencer, J. is an obiter dictum and that these porombokes in so far as they are made up of unoccupied building sites must necessarily be deemed to vest in the authority which according to the common law of this Presidency controls their occupation. So far as I am aware in those districts with which I have acquaintance there is no practice for the Government to control the assignment of vacant house sites situated within Zamindari or inam villages. The practice is for such control to be exercised by the proprietor. Though under the Estates Land Act the Government presumably would have a power to prevent the diversion of village site poromboke from the purpose for which it has been reserved, I doubt very much whether that power would make these village sites actually vest in the Government except for the specific purpose of preventing their diversion. At any rate so far as village site in whole inam villages not coming under the Estates Land Act is concerned, it seems to me that the right in the land has been confirmed to the inamdars subject only to any existing rights held by others. From this proposition it follows that the villagers have no rights in unoccupied village sites except to apply for the grant of house sites to the controlling authority. That control must be exercised by the inamdar and those unoccupied house sites must vest in the inamdar for that purpose. It is unnecessary for the purpose of the present case to consider whether the shrotriemdar has or has not an absolute title in the land now in suit. I am of opinion that he has such a title as is sufficient to enable him to maintain the suit. The lower appellate Court has found that for the period 1918 to 1923 the defendant was not in occupation of the land and there is no evidence to show that anyone else was in occupation. In my opinion the learned Subordinate Judge was justified from this fact in drawing the inference that the land was in the possession of the titular owner and that the titular owner whether absolute or for a specific purpose was the shrotriemdar.

The appeal fails and is dismissed with costs of the 2nd respondent.

Leave granted.

N.R.RAppeal dismissed.