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TMI Blog1885 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e north by arable lands which appertain to the appellant's zamindari. The third or western tract is, as described in the schedule, 35 square miles in extent, bounded on the east by the Manimuttar and Sellambu Odei, on the west by the territory of the Travancore Government and the Tambrapurni river, on the south by the Terkukakachi Malai and the Travancore territory, and on the north by the Tambrapurni and the Mylar. The second or middle tract lies to the north of the Terkukakachi Malai, to the south of the Vadakakachi Malai, to the east of the Manimuttar, and to the west of the Kossaveukuliyar, and it is about 1 square mile in extent. According to Mr. Baber, the Assistant Superintendent of the Revenue Survey, who personally visited the hills in dispute, they are 103 square miles in extent by map measurement, and consist of hill ranges rising over 6,000 feet above the level of the sea, and of which the upper hills are clothed with valuable virgin forest and the lower slopes with valuable jungle. The fact that the head waters of the Tambrapurni river, a river on which considerable revenue derived by Government depends, lie in these tracts, lends a special importance to the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Pandiyan line retained nominal sovereignty for some time longer. Nagama Nayak and his son Visvanadha Nayak were the actual conquerors, and they and their descendants held the kingdom for the Vijayanagaram princes for fifteen generations. The creation of the palayam tenure now represented by the present zamindaries of Tinnevelly and Madura is assigned by tradition to Visvanadha Nayak, and it was the most important political event of his rule. It is, however, more likely that all the palayams were not erected at one time, but by the successive princes of the Nayak dynasty. 2. Speaking of these institutions, Bishop Caldwell observes that it can hardly be said that the idea of governing the country by an order of rude, rapacious feudal nobles such as the palayagars generally were, was a happy one, for, down to the period of their final subjection to British authority in 1801, whenever they were not at war with the central authority, they were at war with one another, and it was rarely possible to collect from them the tribute due to the paramount power without a display of military force. The last of the Nayaks, Vijaya Runganadha Chola, died in 1731, and in consequence of a disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, and the palayagars were reduced to subjection by Major Bannerman. Again in 1801, the second and the last palayagar war broke out and the rebels were overthrown by the army under the command of Colonel Agnew, and the country was finally reduced to subjection. In 1802, the palayagars were brought under the Permanent Settlement in the belief that it would operate to change these turbulent tributary chiefs into peaceful and contented landholders. Thus it will be seen that the district was under the Pandiyan kings with a short Muhammadan interregnum of between forty and fifty years, till it passed under the rule of Nayaks who created the palayagars as local chiefs subject to the payment of a tribute to the paramount power, that from 1731 to 1791 it was subject to the Nawab of Arcot, whose authority was often weak and resisted by the palayagars, and that it was not until 1801, when it passed under the British rule, that the country was fully tranquilized. 3. The zamindari of Singampatti belongs to an old palayagar Maravar family. It was permanently settled in 1803 at a peshkash of ₹ 8,006-2-11. The sanad was issued in the name of Nallakutti Tevar. In 1830, when Periya Sami Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n further information was necessary on several points, and this the Collector was called upon to furnish. On the 31st October 1879, Government directed a Survey Officer, appointed to determine disputes under the Boundary Act, to ascertain whether the forests in suit were within the boundaries of the appellant's zamindari. The appellant being then a minor, the Collector, as the Agent of the Court of Wards, defended his title before the Survey Officer, who decreed in April 1880 that the appellant was entitled, by a decision of the Collector in 1857, to which we shall hereafter refer more particularly, to one-half of that part of the hills which lie between the Tekkukakachi Malai on the south and the Elgai Vengai on the north, and the Manimuttar on the west and Karampandi Amman Kovil on the east. He declared further that the boundary line fixed by him would, as shown in the map L, run from the Mulaikasam of the Pachiyar to Mothalati junction and thence along the Kossavenkuliyar and across the ridge of Kakkachi Malai to the Manimuttar. He decided also that all the lower hill tracts to the north of the Mylar and Sellambu Odei and to the west of the Manimuttar and those to the east o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of limited extent in the eastern tracts, but he added that in his opinion these rights did not render the Zamindar unqualified proprietor or owner of the land in fee simple, for such rights were in the nature of an easement and the officers of Government were shown to have interfered on frequent occasions with the Zamindar's full enjoyment of his rights and the Zamindar was admittedly without title-deeds. In support of his conclusion he referred to Clark v. Elphinstone (L.R., 6 App. Cas. 164), Wilson v. Mackreth (3 Burr., 1824), Bhaskarappa v. The Collector of North Kanara (I.L.R., 3 Bom., 452), and Sir Henry Maine's Village Communities, 4th edition, page 160, and finally formulated the grounds of his decision in these terms:-- The result of the various authorities I take to be, first, that the enjoyment of easement, even though such enjoyment is exclusive, is to be distinguished from possession and will not create a title by prescription or support an action of ejectment; secondly, that private property in forest land does not exist in India except by express grant from the State; and thirdly, that even if such proprietorship does exist, it has not the same incidents as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which they refer. It is not material that the Zamindar claims the hills as his private property, for the real issue is whether they are State or private property, and no distinction could be drawn between the evidence of reputation to establish, and that to disparage, a public right, Drinkwater v. Porter (7 C. P., 181). On this point the Indian Evidence Act is, we apprehend, in accordance with the rules accepted by the English Court, s. 32, clause 4. As for the ayakut accounts produced by the appellant, they are produced from the respondent's custody and they are more than fifty years old, and this special circumstance also renders them admissible as evidence of reputation unless they are shown to be tainted with suspicion. Exhibit NN is the nanja ayakut account of the Government village of Vikrama Singapuram, dated 1803, and the southern boundary of that village is described to be the Tambrapurni river. A reference to the map will show that that river lies between the hills in dispute and the Government village, and the account is therefore evidence that the hills were not reputed in 1803 to be within the limits of Vikrama Singapuram. 6. Exhibit PP purports to be the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Zamindar's title. 9. Exhibits V, VI and VII purport to be the ayakut accounts of 1777, 1799 and 1803 for Urkad, Tinnevelly and Kalladikuruchi, respectively, and though produced by the respondent do not greatly support his case. The conclusion we come to as to this part of the case is that while there is no proof of an express grant in regard to these hills, the ayakut accounts of the Government villages of Vikrama Singapuram and Malayankulam in the respondent's possession show that the hills were not reputed to be within the limits of those villages in 1803 and 1825. The next document in date on which the appellant relies is Exhibit AA, which shows that in 1818 he obtained from the Collector an order addressed to the tahsildar of Brahmadesam, in which subdivision the hills in suit are situated, directing him to inquire whether, as alleged by the zamindar, the bill people residing in Ambasamudram had obtained pattas from the zamindar for hill produce and had made default in the payment of tirva and committed mischief by cutting large trees, and if found to have done so, to enforce payment of the tirva. Ambasamudram lies on the north-east confines of the hills, and altho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion that both the Collector, the Zamindar and Kalakattu raiyats believed that the eastern tract to which the moiety of the disputed locality was attached formed part of the Singampatti zamindari. Again in July 1854 the Tahsildar of Ambasamudram, a Government taluk, called the attention of the then Zamindar of Singampatti to the fact that people used to assemble in Seri Muthaiyan Kovil and Vanatirtam during the new moon festival of the Adi month, and intimated to him that the duty of making arrangements for preserving the peace and preventing crime devolved on the Zamindar because those places (which are in the western part of the lower hills awarded by Mr. Baber to the appellant) were attached to the zamindari (Exhibit GG). 12. Again, in May 1864 the statement V was prepared by the Forest Conservator of Government and zamin forests, and the Singampatti hills now in dispute were described in it as zamindari. We find further that in October 1864, the Collector addressed the letter U to the appellant's mother acknowledging her to be the owner of the Singampatti hills, and inquiring, with reference to the Proceedings of Government, dated the 30th July 1864, whether he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge has apparently omitted to notice the intention or belief with which the acts of enjoyment mentioned above were done from time to time, but it is one of the matters which ought to be considered in coming to a finding as to the nature of the appellant's possession. The effect of the evidence on this point is that the appellant's ancestors and Government officers when they managed the zamindari exercised these acts of enjoyment alleging that the hill-tracts formed part of the Singampatti zamindari. We may refer here to a few documents, which, in addition to the other evidence already discussed, tend to show that the acts we have referred to were done in the belief, whether it was well or ill-founded, that the Zamindar for the time being owned the hill-tracts as part of his zamindari. 14. Exhibit M, which is dated the 2nd August 1831, together with Exhibit N, show that the Zamindar leased out the hill for three years (from Fasli 1240 to 1243), that was designated Singampatti hill, and that the Collector, as manager for the time being, for arrears of peshkash called up the lessees of the hill and of a tope and confirmed the pattayams granted by the Zamindar. In document M, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for them, believed and openly and frequently asserted that the hills were part of the zamindari which is the Zamindar's private property. We shall next consider to what extent and on what ground and with what effect Government is shown to have interfered with the Zamindar's enjoyment of his rights as owner. The Judge refers in para. 42 of his judgment to documents XII to XV and to the evidence of the appellant's 15th witness and to Exhibit A, and remarks that not only were the appellant's rights in these hill-tracts limited in extent, but even within the sphere of their operation were exercised under the supervision and control maintained by officers of Government as paramount lord of the soil. 18. In 1837, the Collector issued an order (Exhibit XII) to the Tenkasi tahsildar in connection with the Courtallam forests. He observed that the forests were destroyed by raiyats on the pretence of raising punja crops on the slopes, and that such destruction affected the sarl (drizzle) and the rainfall, and then went on to direct that the people of two villages near Courtallam should be informed that no one should fell more forests and raise more punja crops than what h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th. 19. It must be remembered that about this time the zamindari was under the management of the appellant's mother under the Collector's superintendence. There is nothing in those documents to show that the Collector issued this order in the exercise of the right of the Crown as lord paramount of the soil. They, on the contrary, recognize the right of the zamindar to the forests as fully as does the enquiry made by the Collector in 1864, whether the appellant's mother was prepared to grant the hills attached to her zamin to Government on a long lease in order that they might bring them under conservancy of the Forest Department Exhibit XVII, dated the 16th August 1866, shows that the restriction that the zamindar should not cut down more than 20 cubic yards of reserved wood in any month was then also in force. Exhibit XX shows that in 1868 the Collector set apart portions of the lower tracts of these hills for the use of certain Government villages accustomed to graze their cattle in these hills. It must be observed that this order was passed when the appellant was a minor under the Court of Wards and subsequently to 1865 when the Government questioned the zamindar& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account is rendered legally impossible. 23. Physical possession is a pure matter of fact, and there is nothing peculiar about it, but in order that it may generate ownership, it is necessary that the possessor should hold the thing exclusively, and for himself as owner. 24. The exclusive holding is a physical fact, and when it is united with the intention to hold for himself as owner, it becomes such as will generate a title by prescription. When we speak of actual possession, we refer to the physical fact, and when we speak of adverse possession we refer to the fact as in union with the intention to hold as owner. On the other hand, when a particular act is done upon a thing with the belief that another is its owner and not with the intention to hold as owner, and when the particular act has been continuously done for the period fixed by the law of prescription, the person doing the act acquires a legal right to do that act though the thing upon which it is done is in other respects under another's dominion. It should also be observed that, when there is an intention to hold a thing as owner, it is not necessary that it should be enjoyed in any particular way, but it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hills which he recognized as part of the zamindari, and the respondent has not appealed from this part of the decision, but the same enjoyment is shown of the whole area. Further, it is not denied by the Judge that the zamindars had the right not only to collect dues but to fell timber, and if in the exercise of this right they could destroy the hill forest, we do not see why the act of cultivating the hills with wet crops or laying out the hill regions into specific groups of fields permanently under cultivation should alone be accepted as proof of ownership. It may be that the parties in possession thought that such cultivation was unprofitable or impracticable. A defined boundary is no doubt an incident of private occupation, but the hills in dispute have defined boundaries and they have been enjoyed and at times expressly let with reference to those boundaries. 26. As for the cases cited by the Judge they either do not support his view or are not on all fours with the suit before us. The contest in Clark v. Elphinstone had reference to a plot of forest-land between two conterminous private estates of which one was obtained by grant from the Crown by Wilson and Ritchie and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the soil may vest at one and the same time in different persons, but it does not warrant any a priori assumption that ownership in the soil may not be acquired by prescription. Burt v. Moore (5 T.R. 333) likewise shows only that a right to separate herbage may vest in one who is not the owner of the soil. Ex hypothesi these cases related to particular exclusive rights in alieno solo or property of which the general ownership was admittedly in another, and they do not show that ownership in the soil may not be acquired by prescription. Bhaskarappa v. The Collector of North Canara (I.L.R., 3 Bom., 452) decided in substance that there could be no grant, no acquiescence in a possession unless the essential elements of possession, a fixed, a definable boundary and an exclusive possession, exist and are present to the perception of the parties, and that the kumari cultivation proved in that case was so precarious and unequivocal that no grant could be presumed. In this and the other Bombay cases, there are general observations as to the control which the State exercised in regard to waste land in mirasi districts prior to the British rule, and which it is still entitled to exercise in pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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