1. The question raised in this appeal is whether the tank-bed lands in question are the property of the Agraharamdars (the plaintiffs) or the Government (the defendant). The suit has been filed with a view to get a declaration that the lands belong to the Agraharamdars, and to get a refund of the penal assessment, alleged to have been wrongly levied from them. The plaintiffs trace their title to a confirmatory grant in their favour of 1797, made by the then Zemindar of Narasaraopet (Ex. A). This refers to a yet earlier grant of an unknown date (not forthcoming) and the plaintiffs rely upon the recital in Ex. A, wide and unqualified, to the effect that the whole village is granted "inclusive of the hills, channels, saline lands, donkas, tank-bed lands" within the boundaries specified. It will be seen that there is in this grant a specific mention of the tank-bed lands, which are expressly conveyed. The Agraharamdars next rely upon a conveyance of 1844, under which they acquired a portion of this agraharam from certain third parties. There again, the tanks are in terms mentioned among the rights appertaining to the property conveyed. This agraharam came within the purview of the inam enquiry instituted by the Government and in 1860 it was both confirmed and enfranchised and an inam title deed was issued to the agraharamdars (Ex. G). What was granted and confirmed "as freehold in perpetuity" was the entire village, nothing having been excluded. In the title deed issued by the Government, it was the title of the plaintiffs' ancestors "the agraharam village" that was acknowledged on behalf of the Governor in Council. In the Inam Fair Register (Ex. F) there is a recital on which the plaintiffs strongly rely. It refers to the sanad of 1797, and goes on to say, that it appears therefrom, that the original grant comprised the entire village, excluding only the common village site, and certain minor inams, which had already been carved out. The plaintiffs take their stand upon these documents and ask: If the pre-British grant was unqualified and was of the entire village, inclusive of the tank-beds, and that grant was duly confirmed by the Governor in Council, how can the Government sustain their present claim? The plaintiffs complain that the Judge in the ourt below, who has negatived their claim, has misunderstood the issue to be tried and has misconceived the law to be applied.
2. In our opinion, the learned Judge has not given due effect to the completeness of the grant evidenced by the original sanad and the inam title deed. At the inam enquiry there was an express reference, as already observed, to the comprehensiveness of the original grant and when the proceedings culminated in the issue of the title deed, the tank-beds, which had been specifically conveyed by the sanad, were not excluded. What is even more significant is, that certain items were particularised as having been excepted, and neither the tanks nor the tank-bed lands were among those so excluded. The law undoubtedly is, that after a cession of territory, the only enforcible rights in respect of lands ceded, are those subsequently conferred by the Crown by express or implied agreement, or by legislation {Secretary of State for India in Council v. Bat Rajbai (1915) 29 M.L.J. 242 : L.R. 42 I.A. 229 : I.L.R. 39 Bom. 625 (P.C.)). The British Government, as observed in Sam v. Ramalinga Mudaliar (1916) 30 M.L.J. 600 : I.L.R. 40 Mad. 664 at 667 were not bound to recognise the revenue-free grants of the previous Governments, though in practice they did recognise them. But when the original sanad is produced and the inam title deed does not curtail or limit the right conferred by its terms, the original grant remains the best evidence of what has been granted by the Crown as the result of the inam enquiry. This is the effect of the pronouncement of the Judicial Committee in Secretary of State for India in Council v. Srinivasachariar (1920) 40 M.L.J. 262 : L.R. 48 I.A. 56 : I.L.R. 44 Mad. 421 (P.C.). That case is also valuable as showing, that their Lordships recognise the existence of Indian documents, where apt words occur intended to create a complete interest in land, including even the right to minerals (see page 65). "In the clearer light afforded " (to use the language of their Lordships--vide page 66) by the original grant produced here, which expressly conveys the tank-beds, no inference can be drawn against the agraharamdars, from the non-mention of those items in the inam title-deed more especially, in view of the exclusion of certain specified items other than the tank-beds, in the Inam Register. This being so, it remains to consider whether the Government have made out their claim, in the face of these documents, that they are the owners of the lands in question.
3. It is contended by the Government that there is a finding in a former suit, which constitutes the question res judicata. 4 How the lower Court was persuaded to accept this contention, is inconceivable. The Agraharamdars filed the previous suit O.S. No. 7 of 1905, for a declaration that the whole village was granted to them and not merely certain specified portions thereof, as then contended by the Government. A decree was made by Mr. Rice, the District Judge who heard the suit, upholding the Agraharamdars' claim in its entirety. Though the plaint in the previous suit has not been filed, the schedule thereto containing the particulars of the property claimed, has been exhibited. From that schedule, it appears that the Agraharamdars claimed the entire village less certain minor inams with which we are not concerned, and communal porombokes. The decree that was passed, granted to the Agraharamdars all that they had asked for in the plaint. In the course of his judgment, Mr. Rice refers to the inam proceedings and says that the Inam Fair Register granted what was exactly claimed in the inam statement neither more nor less. The formal decree that was drawn up, follows the terms of this judgment and declares the right of the Agraharamdars to the entire village, "exclusive of the porombokes and the minor inams not claimed at the Inam settlement."
4. From what has been said above, it becomes clear, that what were excluded by the decree were (besides the minor inams) communal porombokes alone. It further appears that to those items no claim was ever put forward, not even at the inam enquiry, by the Agraharamdars. The effect of the previous decree then is, to declare merely that the plaintiffs are not entitled to the communal porombokes and it does nothing more. Whether the tanks and the tank-beds were communal porombokes or not, was not a question that was raised and the decree does not profess to decide it. It is impossible to hold, as the lower Court has done, that this decree has made the title to the tank-beds res judicata.
5. The learned Judge, ignoring the scope of the previous suit, and brushing aside the express wording of the decree, seizes upon some passage in Mr. Rice's judgment - which both sides have had to confess is obscure - and infers therefrom that the plea of res judicata, has been made out., The obscurity has arisen from the fact that the Government, whose duty it was to file the pleadings in the previous suit, have not done so, and strictly speaking, the plea qf res judicata ought not to have been entertained at all. Before Mr. Rice, some contest seems to have been raised, in regard, to the ownership of some 120 odd acres of land, in the village. The Government claimed that that land was liable to be assessed and the Agraharamdars asserted the contrary. At the inam enquiry, this extent was apparently not taken into account in fixing the quit-rent and the Government seem to have urged that it should accordingly be deemed as comprised in the excluded poromboke. By way of answer, the Agraharamdars appear to have contended that the reason for its exclusion was not that it was poromboke, but because it was then thought not worth cultivating. Mr. Rice, after accepting the Agraharamdars' version, observes towards the end of his judgment:
The actual result appears to be to deprive Government of the power of assessing about 120 acres of valueless land.
6. On this unsatisfactory and tenuous foundation the lower Court bases its finding of res judicata. It must be remembered that at that time the tanks were functioning as irrigation sources and no question of the Government's "power of assessing" could possibly have arisen in regard to them. The lower Court's treatment of this question has been perfunctory and its conclusion cannot be accepted.
7. In this connection, we must own to some surprise, at the remark made by the Judge, that every presumption should be drawn against the Agraharamdars, who failed to produce the inam statement. In the course of the. inam proceedin gs they produced a copy of this statement, which they say has since been lost. The inam statement is a part of the Government records and the Agraharamdars applied to Government, for the purpose of this suit, for copies both of the inam statement and of the inam Register. A copy of the Register was furnished, but the Government failed to grant a copy of the statement, presumably on the ground that they were unable to do so. How in the circumstances any blame attaches to the Agraharamdars, is incomprehensible.
8. The question then arises, as already stated, are the suit lands communal porombokes. This question is relevant for two purposes: first, on account of the previous judgment already referred to, and secondly, because of the sound rule of construction that the Government cannot be presumed, in making a grant, to include in it communal property, that is what the villagers own in common (Narayanaswami Naidu v. Secretary of State for Indian (1912) 24 M.L.J. 36 at 40). That these tanks were primarily intended for irrigation purposes and were used as irrigation sources, is not seriously denied. The learned Judge assumes this, though he does not find so, in various places in his judgment. The mere fact that the villagers sometimes used the water for other purposes, such as for drinking, for bathing or for washing cattle, does not suffice to create any rights of ownership in them. Usually in a village, interference with such acts is not called for, until some question of title is raised and no importance therefore attaches to such user. When the inam title deed was issued, and the quit-rent computed, some cultivated area was treated as wet land and there can be no doubt that the wet cultivation became possible by reason of the existence of these tanks. The true position in regard to irrigation tanks is, that they do not belong to the community as such, the rights of irrigation, appertaining as they do, to the lands irrigated; such rights therefore as the owners of these lands possess, are in the nature of easements (Kannayi-ram Pillai v. Virudupatti Gins, Ltd. (1924) 20 L.W. 185). It is an admitted fact here, that besides the Agraharamdars, the only proprietor that used the water for irrigation, was the Karnam, in respect of his minor inam. The tanks became useless as irrigation sources in 1915 owing to heavy rains and breaches, and since then the Agraharamdars have been using the tank-beds as cultivable land. It is a question that does not arise here and nobody raises it, whether or not the minor inamdar's easement has become extinguished, granting that he once possessed such a right. At any rate, even by the date of the suit (and it is now seven years since it was filed) the easement had not been exercised for about fourteen years. However that be, the point is clear beyond doubt that the tanks were not public or communal tanks and therefore there was nothing to prevent their passing under the wide terms of the grant.
9. Some cases have been cited at the Bar relating to tanks or channClause The principle underlying those decisions seems to be this : where the tank or channel is wholly within the limits of the inam, as in the present case, it must be held to pass under the grant. The question was not considered whether or not it was communal property, but presumably it was assumed that it was not {Secretary of State v. Kannepalli Venkataratnammah (1912) 23 M.L.J. 109 : I.L.R. 37 Mad. 364 N.). But where from the source, lands other than those of the inamdar are also irrigated, it being the function of the Government to conserve and control works of irrigation, it would be right to presume, in the absence of an express grant, that the tank or channel was not intended to be conveyed, the reason being that it would be injurious to introduce divided responsibility and divided control (Ambalavana Pandara Sannadhi v. Secretary of State for India (1905) 15 M.L.J. 251 : I.L.R. 28 Mad. 539 and Narayanaswami Naidu v. Secretary of State for India (1912) 24 M.L.J. 36), although this principle was departed from and the inamdar's right was recognised in Secretary of State for India v. Ambalavana Pandara Sannadhi (1914) I.L.R. 37 Mad. 369 N. It is sufficient to say here that judged by any test, the tanks in question passed under the grant to the plaintiffs.
10. This finding as to the title based upon the grant would be sufficient to dispose of the case, apart from the question of limitation which we shall presently consider; but we have been referred to acts of possession and enjoyment on the part of the Agraharamdars, as furnishing independent evidence of their title. Mr. N. Srinivasa Aiyangar for the Government Pleader broadly contends, however, that as against the Crown, when the question is one under the Land Encroachment Act, possession can never be relied upon as evidence of ownership. There is a fallacy underlying this argument, as we shall show. Section 110 of the Evidence Act no doubt enacts that tide is to be presumed from lawful possession. This is a rebuttable presumption and, like all rebuttable presumptions, must yield to proof. Where therefore title is proved or assumed, the presumption created by Section 110 can no longer apply. Now turning to the Land Encroachment Act, Section 2 declares, subject to a saving clause, that the Government is the owner of certain kinds of property, including the beds of tanks. There is no conflict between the section of the evidence act and this provision. The title of the Government being statutorily declared, the rule of presumption enacted by Section 110 is not brought into play. But is there anything to prevent long possession being relied upon as evidence of a grant made by the original owner? The very argument based on grant presupposes title in the party said to have made the grant. Therefore, it is one thing to say that you cannot use the fact of possession as evidence of title, but it is quite a different thing to argue therefrom, that you cannot rely upon it in support of a grant. Where there was evidence of exclusive possession for a long period of a few annexed to a dwelling house in the parish, it was held--upon the principle that a legal origin ought to be presumed if a legal origin be possible - that the grant of a faculty ought to be presumed. Philipps v. Halliday (1891) A.C. 228 (H.L.). That this principle extends to cases where the Government was the original owner, has been established by very authoritative decisions. In Mahomed Ali Haidar Khan v. Secretary of State for Indian (1908) 18 M.L.J. 549 : L.R. 35 I.A. 195 : I.L.R. 36 Cal. 1 (P.C.), the Judicial Committee, after finding that the plaintiff otherwise failed to establish his title, held upon the proof afforded by his long possession and enjoyment, that his title was made out. Again, in Secretary of State for India v. Durbijoy Singh (1892) L.R. 19 I.A. 69 : I.L.R. 19 Cal. 312 (P.C.), their Lordships point out that if the question were one of limitation, the defendant was bound to fail; but if the possession was used for making out a title, there was sufficient evidence in support of it (see also Syed Mohammad Mazaffar-al-Musavi v. Bibi Jabeda Khatun (1930) 58 M.L.J. 641 : L.R. 57 I.A. 125 : I.L.R. 57 Cal. 1293 (P.C.), decided by the Judicial Committee and the observation of Varadachariar, J., in Subramania Desikar v. Secretary of State for India (1936) M.W.N. 1315 at 1326).
11. Now looking at the evidence in this aspect, it seems to us that there is sufficiently long possession on the part of the plaintiffs, in assertion of a title, attributable to a grant in their favour. The inam title deed, as already stated, was issued to them in 1860. Since then the plaintiffs have been constantly exercising acts of ownership. There is a lease of the same year (Ex. D) executed by the Agraharamdars, which shows their possession. Again in 1876 (by D-1) in 1883 and 1897 (by E series) they leased out various portions of the tank bunds. Further they effected repairs to the tanks in 1887 (j), 1898 (k), and (1907) (J-1, GG and GG-1) and incurred expenses in that connection. That they were in possession without question previous to the suit of 1905, is a fact which cannot be disputed. Indeed, the Government seems to have assumed before the decree in that case, that the plaintiffs were lawfully in possession and that its own right commenced from the date of, and in virtue of, that decree. On the 5th August, 1907, the Board of Revenue passed a proceeding (Ex. XXIII) stating that the finding of the District Court over-rides the general lam that " porombokes in whole inam villages belong to the inamdars " and that the latter should accordingly be prevented from leasing the tank porombokes in future. This shows beyond doubt that the inamdars were till then in possession without their right being challenged. Orders similar to this were in the year 1907 and 1908 issued by the Government, but the plaintiffs' possession was never interfered with or disturbed. One such order was that issued by the Collector on the 2nd August, 1908 (Ex. XXIII-c) to which we shall refer later, when considering the question of limitation. Then from 1915, as already observed, the tanks ceased to be useful as such and the tank-beds were openly cultivated. And what did the Government do? It started levying about the year 1920 (and went on doing so) not assessment as one might expect, but cesses as the Local Board's agent (see the Evidence of D.W. 3, p. 171). The evidence on this point has been completely misread and misunderstood by the trial Judge. Numerous exhibits bearing on this have been filed, and a scrutiny of one of them Ex. I-e, by way of example, will show that the amounts collected were cesses and do not represent the assessment. The evidence of P.W. 6 (at pages 146 and 148) which remains uncontradicted, proves this conclusively. The lower Court observes, almost casually, that the wet assessment was collected, which statement is clearly wrong and the learned Counsel for the Government was unable to support it. Collecting the cesses and forbearing from collecting the assessment, almost amounts to an admission on the Government's part of the Agra-haramdar's title, whether the Government so intended it or not. We merely refer to this and do not propose to use it against the Government. Then for the first time in 1929 the Government levied assessment and this suit was immediately brought. Thus, our finding as to the title receives support, if support were necessary, from the evidence of possession and enjoyment to which we have referred.
12. The next question that arises is, whether the lower Court's view that the suit is barred by limitation is right. There are two reliefs clajmed (i) for a declaration of the plaintiff's title and (ii) for the refund of the penal assessment levied. The amount was collected on the 27th March, 1928, and the suit was filed within six months from that date. How in the teeth of Section 14 of the Land Encroachment Act the learned Judge has held that the suit for the refund is barred, we are unable to follow. That section expressly provides that in respect of any assessment or penalty the cause of action arises on the date on which it is levied. Even where there has been more than one levy, it has been held that a suit for refund, brought within six months of the last of the levies (the previous levy not having been challenged) is not barred in respect of such last levy, under Section 14, the question, however, being left open as to the limitation applicable to a suit for declaration Secretary of State for India v. Hussain Sheriff Saheb (1922) 16 L.W. 197. The question in the present, case is much simpler, there having been no previous levy and there is thus not even the semblance of an excuse for holding that the suit is barred in respect of the relief for refund. It must be observed that the learned Government Pleader has not sought to justify the lower Court's decision on this point.
13. Then as to the relief praying for a declaration the learned Judge's view is also wrong. He seems to think that the suit ought to have been brought within six years of the Collector's order dated 2nd August, 1908, Ex. XXIII-C, to which we have already referred. There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit. A party surely has a right to elect, as to when he may bring a suit, for vindicating his right, when there are several or successive denials. If a person's right is called in question, he may ignore that particular attack or challenge, but that does not mean that a fresh attack does not give rise to a fresh cause of action. There may be an ineffectual threat, a brutum fulmen (see the judgment of Coutts-Trotter, C.J., in Koyasan Koya Haji v. Secretary of State for India (1924) 47 M.L.J. 379 : I.L.R. 47 Mad. 927 at 932), which a person may ignore, without his right to bring a suit in respect of a subsequent invasion, being impaired. When an attachment was followed by an execution sale, it was held that there was a fresh invasion of the owner's right and that the sale gave rise to a fresh cause of action; his forbearance to sue on the first occasion did not debar him from suing, when by reason of the sale, there v/as a greater invasion of his right (Anantaraju v. Narayanaraju (1911) 22 M.L.J. 108 : I.L.R. 36 Mad. 383). True, a mere continuation of a prior cause of action does not give rise to a fresh right - for instance, where property is attached, the procuring of the attachment is the wrongful denial and the cause of action arises when the attachment is effected; in such a case it is wrong to hold that there has been a "continuing wrong" so as to give a fresh startingpoint during the whole period the attachment subsists (Rajah of Venkatagiri v. Isakapalli Subbiah (1902) I.L.R. 26 Mad. 410). But from this, it does not follow that an owner can never ignore an attack against his title, however, casual or trivial, without his right to sue being imperilled in respect of a subsequent invasion. There is no inconsistency between the two cases cited above (Ananiaraju v. Narayanaraju (1911) 22 M.L.J. 108 : I.L.R. 36 Mad. 383 and Rajah of Venkatagiri v. Isakapalli Subbiah (1902) I.L.R. 26 Mad. 410) as seems to have been assumed with great respect wrongly in Thirumala Rao v. Jungammal (1914) M.W.N. 197. The facts of the last mentioned case do not appear sufficiently from the report; but if the effect of the decision is, that where there are several acts, the earliest of them alone furnishes the starting point, we must express our dissent from that view. (See also Koyasan Koya Haji v. Secretary of State for India (1924) 47 M.L.J. 379 : I.L.R. 47 Mad. 927 at 932 where Ramesam, J., also disagrees with this opinion, though no case is particularized.) It is for the plaintiff to decide at his option, on which act he chooses to found his cause of action, and when he does so, it is with reference to the particular infringement he alleges, that the limitation should be reckoned (cf. Govinda Narayan Singh v. Sham Lai Singh (1931) 61 M.L.J. 9 : L.R. 58 I.A. 125 at 140 : I.L.R. 58 Cal. 1187 (P.C.)). It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action? In Koyasan Koya Haji v. Secretary of State for India (1924) 47 M.L.J. 379 : I.L.R. 47 Mad. 927 already referred to, Ramesam, J., indicates that where a penal assessment has been levied, the person affected cannot be allowed to ignore the payment and rely on a later proceeding, the reason being that the levy of the assessment amounts to a virtual loss of his right. On the facts of the present case a question of this sort does not arise. Then turning to the lower Court's judgment, it is difficult to see how Kodoth AmbuNayar v. Secretary of State for India (1924) 47 M.L.J. 35 : L.R. 51 I.A. 257 : I.L.R. 47 Mad. 572 (P.C.) relied on by the Subordinate Judge, is applicable. The plaintiff there preferred objections, to the exclusion of the lands in suit, from the rough pattah granted to him, by the Government. His objections were definitely rejected in 1905. The suit that was brought to set aside the order of rejection and to obtain a declaration of his right, was not instituted until 1913. The Judicial Committee held that the claim was barred under Article 120. In that case there was an overt act, namely, the issue of the pattah and moreover, the invasion of the right complained against, was the order passed in 1905, which on the plaintiff's own showing, furnished the starting point. In the present Case as already observed, no effect was given to the proceeding that was passed and such possession or enjoyment as the plaintiff had, was never disturbed; nor is the cause of action here based on that proceeding. The suit therefore even in respect of the relief of declaration is not barred.
14. The appellants do not press their claim in regard to item No. 3. The result therefore is that the lower court's decree, in so far as it relates to items 1 and 2, is set aside, and the appeal to that extent is allowed with full costs throughout. We understand that the decree should be for the amount claimed in the plaint less Rs. 3-7-0.
15 Appeal No. 421 of 1931. - From the judgment just delivered by us in the connected case, it follows that this appeal also to the extent indicated there should succeed and it is accordingly so allowed with full costs throughout. Deduct from the amount claimed Rs. 3-7-0. Under Section 82, Civil Procedure Code, we fix three months' time for compliance with the decrees.
16. These appeals having been set down "to be spoken to" this day, the Court delivered the following
17. This matter is posted before us for being spoken to, at the request of the Government Pleader. He says in his letter that the terms of our injunction may appear too wide in view of the recent amendment, of the Madras Estates Land Act. Our judgment proceeds upon the footing that the suit lands are non-communal property; apart from that, we could not have intended by our judgment to deal with matters which were not raised in the pleadings or with the supposed rights that came into existence subsequent to the suit.
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