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TMI Blog1937 (9) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ely 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sult 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 proceedings 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic 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.). 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)15MLJ251 and Narayanaswami Naidu v. Secretary of State for India (1912) 24 M.L.J. 36), although this principle was departed from and the inam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Mahomed Ali Haidar Khan v. Secretary of State for Indian (1908) 18 M.L.J. 549 : L.R. 35 IndAp 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, 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 IndAp 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). 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 exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuation 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 I.L.R. (1902) 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 I.L.R. (1902) 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 expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 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 cam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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