1937 (9) TMI 14 - HC - Indian Laws

Summary

Issues Involved:

1. Ownership of tank-bed lands.
2. Res judicata concerning a previous suit.
3. Whether the suit lands are communal porombokes.
4. Evidence of possession and enjoyment as proof of title.
5. Limitation for filing the suit.

Detailed Analysis:

1. Ownership of Tank-Bed Lands:

The primary question in this appeal is whether the tank-bed lands in question are the property of the Agraharamdars (plaintiffs) or the Government (defendant). The plaintiffs seek a declaration that the lands belong to them and a refund of the penal assessment levied by the Government. The plaintiffs base their claim on a confirmatory grant from 1797, which explicitly includes tank-bed lands. This grant was confirmed and enfranchised by the Government in 1860, issuing an inam title deed for the entire village without excluding the tank-bed lands. The plaintiffs argue that the comprehensive nature of the original grant and its subsequent confirmation by the Government support their claim. The court agrees that the original sanad and the inam title deed demonstrate the completeness of the grant, including the tank-bed lands.

2. Res Judicata Concerning a Previous Suit:

The Government contends that a finding in a previous suit constitutes res judicata. However, the court finds this contention unconvincing. The previous suit, O.S. No. 7 of 1905, upheld the Agraharamdars' claim to the entire village, excluding only communal porombokes and minor inams. The decree did not address whether the tanks and tank-beds were communal porombokes. The court concludes that the previous decree does not make the title to the tank-beds res judicata, as the issue was not raised or decided in that suit.

3. Whether the Suit Lands Are Communal Porombokes:

The court examines whether the suit lands are communal porombokes, relevant for both the previous judgment and the rule that the Government cannot be presumed to include communal property in a grant. The court finds that the tanks were primarily intended for irrigation and were used as such, with no significant communal use. The court concludes that the tanks were not public or communal tanks and therefore passed under the grant to the plaintiffs.

4. Evidence of Possession and Enjoyment as Proof of Title:

The court considers acts of possession and enjoyment by the Agraharamdars as independent evidence of their title. The plaintiffs have exercised acts of ownership since the issuance of the inam title deed in 1860, including leasing portions of the tank bunds and repairing the tanks. The Government's actions, such as levying cesses but not assessments, further support the plaintiffs' title. The court finds that the plaintiffs' long possession and enjoyment provide additional evidence of their title.

5. Limitation for Filing the Suit:

The court addresses the issue of limitation for filing the suit. The suit was filed within six months of the penal assessment levied on 27th March 1928, making it timely under Section 14 of the Land Encroachment Act. The court rejects the lower court's view that the suit should have been brought within six years of a 1908 Collector's order, as the Government did nothing to disturb the plaintiffs' possession until the assessment in 1929. The court concludes that the suit is not barred by limitation for either the declaration of title or the refund of the penal assessment.

Conclusion:

The court sets aside the lower court's decree concerning items 1 and 2 and allows the appeal with full costs. The court also allows the connected appeal to the same extent. The court clarifies that its judgment is based on the finding that the suit lands are non-communal property and does not address rights arising after the suit.