Krishna Iyer v. Murphy Estate Ltd. — 1953 DIGILAW 202 (KER)

Judgment :- 1. The plaintiff is the appellant. The suit was for declaration of title to and recovery of possession of the plaint property, the extent of which as mentioned in the plaint, is about 50 acres. The plaintiff is the lessee of a large tract of land lying within the Poonjar Edavagai and belonging to the Poovarani Devaswom. The Devaswom belongs to a Mutt, the head of which was the 9th defendant, who died subsequent to the suit and he was succeeded by the 13th defendant. At the time of the institution of the suit, the Poonjar Chief was the 11th defendant and after his death, he was succeeded by the additional 14th defendant. The 10th defendant is the Vanjipuzha Chief, whose Edavagai lands lie adjoining the Poonjar Edavagai. Defendants 1 and 2 were the sub-lessees of the plaintiff and they were said to be in possession of certain portions of the plaint property. After the institution of the suit, the plaintiff had compromised his disputes with the 2nd defendant and so, the 2nd defendant had no further interest in the plaint property. The 15th defendant is the State, impleaded in the case at a later stage on account of the contention of some of the parties that a portion of the plaint property was Sirkar poramboke. 2. The plaintiff stated that the plaint property was a portion of his leasehold consisting of Ulayanad Desom, which he had taken from the 9th defendant's Mutt for 101 years. This Desom lies within the Poonjar Edavagai. The Vanjipuzha Edavagai lies to the south and east of the property. This property is separated from the Peruvanthanam Muri belonging to the 10th defendant, the Vanjipuzha Chief, by a stream called the Pullaka River. A portion of the plaint property was in the possession of the plaintiff, while the remaining portion was with defendants 1 and 2. Since the Pullaka river was the boundary, the plaintiff was entitled to possession of all the lands to the right side of the middle line of the river. He was also entitled to the river bank and bed on the right side. No survey had been made of the Peruvanthanam Muri. There was also no survey or settlement in Poonjar, though some preliminary steps were taken in 1070 to survey the Poonjar Pakuthy. He was also entitled to the river bank and bed on the right side. No survey had been made of the Peruvanthanam Muri. There was also no survey or settlement in Poonjar, though some preliminary steps were taken in 1070 to survey the Poonjar Pakuthy. The same had to be given up because of the dispute between the Poonjar Koickal and the State as to the costs of the survey operations. By that incomplete survey, Poonjar Edavagai was delimited to the right side of the Pullaka river and based on this, defendants 1 to 8 were raising the contention that the plaint property was portion of the Peruvanthanam Muri. That was the contention raised by the 2nd defendant in O.S. 230 of 1114 of the Meenachil Munsiff's Court. A tree, which was in the plaint property and which had been cut down by the plaintiff, was attempted to be removed by the 5th defendant. On the plaintiff's complaint, a case was registered by the Mundakayam Police and the timber was entrusted on Munnamsthanam. The 1st defendant had planted rubber on portions of the plaint property given on lease under the plaintiff. There was no case for the defendants that the plaint property was portion of the Peruvanthanam Muri. The 10th defendant had no such case at that time. There was also no basis for the contention that the plaint property was Sirkar poramboke. The plaintiff, therefore, filed a suit praying for the declaration of his title to and possession of the plaint property. He also prayed that portions of the plaint property, which would be found in the possession of any of the defendants, might be ordered to be delivered over to him. There is also a paragraph added at the end of the plaint that, on the application of the plaintiff, the Sirkar had been impleaded in the case in order to enable the Court to set aside the proceedings by which portions of the plaint property had been surveyed as poramboke. 3. Defendants 1, 5,10,14 and 15 had filed written statements. The 1st defendant stated that the property set forth in the plaint A schedule was not clearly described in the plaint. The plaintiff must be asked to file a sketch showing the lie of the property. 3. Defendants 1, 5,10,14 and 15 had filed written statements. The 1st defendant stated that the property set forth in the plaint A schedule was not clearly described in the plaint. The plaintiff must be asked to file a sketch showing the lie of the property. The 1st defendant, however, assumed that the property referred to in the plaint schedule was the land lying between the Government survey line of the Poonjar Pakuthy on the one side and the middle line of the Pullaka river on the other side. He admitted that he was in possession of a portion of this property. There were disputes between his predecessor-in-title and the plaintiff and those were settled by the compromise in O.S. 38 of 1097 of the Kottayam District Court. In that compromise, the Pullaka river was fixed as the boundary of the 1st defendant's holding. According to the 1st defendant, his holding extended up to the river edge and not up to the mid-stream. The Government survey had taken the river bed and the borders of the river up to the survey line to be Government Poramboke and the plaint property was within the limits of such poramboke. So, his title to the land between the survey line and the river was not beyond dispute. He was in possession of portions of the plaint property extending up to the river edge and he was prepared and willing to hold such portions under the plaintiff. In view of the Government records, he did not claim any portion of the plaint property between the river edge and the mid-stream. The plaintiff's property was within the Poonjar Edavagai, one boundary of which was the Pullaka river. This river flows between the Poonjar Edavagai and the Vanjipuzha Edavagai and it was Government Poramboke. The 1st defendant had planted rubber trees in portions of the plaint property in his possession. As he was prepared to hold the land up to the edge of the river under the plaintiff and as he admitted the latter's title in respect of the same, he was not liable to be dispossessed. 4. The 5th defendant contended that the Pullaka river was not the boundary between the Poonjar Edavagai and the Vanjipuzha Edavagai, for the Government had planted survey stones fixing the boundaries of the two edavagais. 4. The 5th defendant contended that the Pullaka river was not the boundary between the Poonjar Edavagai and the Vanjipuzha Edavagai, for the Government had planted survey stones fixing the boundaries of the two edavagais. The plaintiff had not clearly described the property over which he was asking for a relief. At any rate, the plaintiff had no right, whatever, to any portion of the bed of the Pullaka river. The tree, mentioned in the plaint, was standing in the land belonging to the 5th defendant and that was situated in the Peruvanthanam Muri of the Vanjipuzha Chief. The tree was cut down by the 5th defendant for his use. It was worth Rs. 25/- and not Rs.145/- as claimed by the plaintiff. He stated that the plaintiff was not entitled to any relief. The 10th defendant contended that the plaintiff had no right to the Pullaka river, that the plaint property belonged to his Edavagai and that the suit was barred by limitation and adverse possession. 5. The 14th defendant stated that the description of the property in the plaint was not correct, that the Pullaka river was the boundary between the Poonjar Edavagai and the Vanjipuzha Edavagai, that the right half of the river bed and the river bank belonged to the Poonjar Edavagai, that the plaintiff had no title to the same, that the survey and settlement of the Poonjar Edavagai had been finished, that the same for the Vanjipuzha Edavagai were going on, that in the survey and settlement, the bed of the Pullaka river and the strip of land on the bank had been wrongly classed as Government poramboke, that he had written to Government to correct the mistake, that the Sirkar had refused to correct this mistake, that the tree cut down belonged to him, and that he was to get the price thereof. 6. The 15th defendant - State contended that the plaint property did not belong to the Poovarani Devaswom or to the Poonjar Chief. Nor did it form part of the Ulayanad Desom or Malayakams. The plaint property was Sirkar poramboke. Plaintiff and defendants 1 and 2 were never in possession of it and, even if they got possession as trespassers, such possession would not avail them in law against the Sirkar. The Poonjar and the Vanjipuzha Edavagai had been surveyed in due course of law. The plaint property was Sirkar poramboke. Plaintiff and defendants 1 and 2 were never in possession of it and, even if they got possession as trespassers, such possession would not avail them in law against the Sirkar. The Poonjar and the Vanjipuzha Edavagai had been surveyed in due course of law. The plaintiff was bound by the survey and could not question it. The suit was barred by the provisions of the Survey and Boundaries Act of 1094 and also by the proceedings of Government. The suit was bad for misjoinder of parties and causes of action and also by the absence of a notice under S. 65 of the Civil Procedure Code (Tr.). It was, therefore, contended that the plaintiff was not entitled to any relief. 7. The learned judge has summed up his findings relating to the ownership of the plaint land thus: "The entire bed of the Pullaka river from point Z to point A including the right half of the river bed claimed by the plaintiff and compromised in the plaint property, belongs to the Sirkar and not to the Poovarani Devaswom or the Poonjar or the Vanjipuzha Edavagai. The right bank of the river from point Z to point A also belongs to the Sirkar, and the land so belonging to the Sirkar are (i) The CYZ plot in Ext. F (ii) Those portions of the poramboke comprised in S. No. 475 of the Kanjirappalli Pakuthy lying on the right bank of the Pullaka river from point Z to point A in Ext. F plan, and shown therein with red dots lying beyond water edge of the river, and (iii) a similar strip on the right bank of the river from point C to point X in Ext. F plan. The plaint A schedule property thus belongs to the Sirkar and not to any one else, and the plaintiff has absolutely no right over the same. The plaintiff and the 1st defendant are in possession of those portions of the poramboke which are shown in Ext. F plan as part of the plaint property and as lying between the water edge and the survey boundary of the river poramboke. The plaintiff and the 1st defendant are in possession of those portions of the poramboke which are shown in Ext. F plan as part of the plaint property and as lying between the water edge and the survey boundary of the river poramboke. The plaintiff is also in possession of the right bank of the river from point X to point C. The Sirkar is in possession of the rest of the plaint property, i.e., CYZ plot and the entire river bed from point Z to point A". It was also found that the suit was not barred by limitation or for absence of notice under S. 65 of the Civil Procedure Code (Tr.) and that the value of the tree, that was cut down by the 5th defendant, was Rs. 100/-. The suit was, therefore, dismissed with costs to the State except the costs ordered to the borne by the Sirkar in connection with C.M.P. 1721 dated 13.3.1121. The other parties were directed to bear their costs. 8. The plaintiff had obtained in his favour a lease deed dated 8.6.1096 for a term of 101 years from the trustee of the Poovarani Devaswom. The properties which he got are in Ulayanadu Desom of the Poonjar Pakuthy. It also forms portion of the Poonjar Edavagai belonging to the Poonjar Chief. The Poonjar Edavagai was originally a portion of the Kondoor Pakuthy of the Meenachil Taluk. Since this Pakuthy had an extensive area, it was divided into two pakuthies called the Kondoor Pakuthy and the Poonjar Pakuthy. This was done only at the time of the Settlement, which was started in 1062. At the time of the ozhugus of 992 and 1012, the Kondoor Pakuthy consisted of the present Kondoor Pakuthy and the Poonjar Pakuthy. To the south of the Kondoor Pakuthy is the Peruvanthanam Pakuthy belonging to the Vanjipuzha Edavagai. These places are located in the plan, Ext. F, prepared by the commissioner in this case. There is no dispute as to the correctness of such locations. It would be seen that Kondoor Pakuthy, which consists of the Poovarani Devaswom and the Peruvanthanam Pakuthy, has on the eastern side, the Peermade Taluk. It is further seen that the Poovarani Devaswom lands, forming the southern portion of the original Kondoor Pakuthy, adjoin the Peruvanthanam Pakuthy. There is no dispute as to the correctness of such locations. It would be seen that Kondoor Pakuthy, which consists of the Poovarani Devaswom and the Peruvanthanam Pakuthy, has on the eastern side, the Peermade Taluk. It is further seen that the Poovarani Devaswom lands, forming the southern portion of the original Kondoor Pakuthy, adjoin the Peruvanthanam Pakuthy. It does not appear from the description of the boundaries given in the ozhugus of 1012 for the Kondoor Pakuthy and the Peruvanthanam Pakuthy that the eastern portions touch each other. The remaining portions are also separated by a river called the Pullakayar. Ext. D is the ozhugu of the Kondoor Pakuthy for the year 992. In the ozhugu, the boundaries are given in the clockwise direction so that the eastern-most boundary mark of the southern side would be given first and then the next western boundary and so on. The southern boundaries of the Kondoor Pakuthy are given there as Vazhukkappara, Chottippara, Pullakayar, Veyiloor and others. As mentioned already the Poovarani Devaswom is the south-eastern portion of the Kondoor Pakuthy so that these boundary marks would be the southern boundary marks of the Poovarani Devaswom lands also. The plaintiff's contention is that it is Pullakayar that separate the Poovarani Devaswom lands from the immediate southern properties. According to him, therefore, the Pullakayar has its origin even from the south-eastern point of the Kondoor Pakuthy. If that were so, the southern boundary would have started with the Pullakayar and not with the other prominent natural boundaries. The ozhugu of 1012 for the Kondoor Pakuthy gives a more detailed description of the southern boundaries. Ext. B is copy of the ozhugu. 9. The southern boundaries of the Kondoor Pakuthy are given thus:- Vazhukkappara Muna, Garudappara Thodu, Thevarukulam Medu, Cheralayil Para, Koottikal Kal, Pullakayar, Chengamanattukulam and other boundaries. The boundary marks to the west of the Pullakayar are not of any material importance in this case and so, they are omitted. The description in the Ozhugu of 1012 would show that the southern boundary of the Kondoor Pakuthy does not start with the Pullakayar. In Ext.F plan, the commissioner had shown the origin of the Pullakayar as Uppukulam Mala of the Peermade Taluk: But, he has admitted in his report, that he had marked thus in the plan on the representation of the plaintiff. He had not investigated the matter further. In Ext.F plan, the commissioner had shown the origin of the Pullakayar as Uppukulam Mala of the Peermade Taluk: But, he has admitted in his report, that he had marked thus in the plan on the representation of the plaintiff. He had not investigated the matter further. So the eastern portion of the water course, shown in Ext. F plan as Pullakayar, cannot be correct. If the Kondoor Pakuthy extended as far as the water course on the south, then there was no reason for not mentioning Pullakayar as the first boundary on the southern side of the Kondoor Pakuthy. The mention of the other boundary marks on the eastern side of the southern boundary would show that even if this water course from the very beginning is known by the name of Pullakayar then the same does not touch Kondoor Pakuthy until it flowed for about 2 miles from the source shown in Ext. F plan. In Ext. D two boundary marks are mentioned on the southern side of the Kondoor Pakuthy before reaching Pullakayar whereas five boundary marks are given in Ext. B for the same property on the southern side before reaching this identical Pullakayar. 10. Ext. C is the ozhugu of the year 1012 for the Peruvanthanam Malayakams. The northern boundaries are given as Pullakayar and Amritha Mala. Thus the eastern boundary mark on the northern side of Peruvanthanam is Amritha Mala. In Ext. F plan, this Amritha Mala is shown as Amritha Medu. It is admitted that Vembalamudi shown there is a peak of Amritha Mala. Therefore, Pullakayar could have its origin only after the termination of the Amritha Mala and its peaks and bottom surfaces. Ext. F plan would show that this stops very near the point marked there as X. At the point X in Ext.F, it is seen that two water courses join at this point and then the same flows further westwards for about 2 or 3 miles when it takes a southerly direction, as shown in the plan. It then takes the name Manimala river. 11. The lower court was of opinion that Pullakayar could have its name only from the point X. That appears also to be the finding by the District Court of Alleppey in O.S. 64 of 1079. Ext. E dated 19.12.1082, is copy of the judgment in that case. It then takes the name Manimala river. 11. The lower court was of opinion that Pullakayar could have its name only from the point X. That appears also to be the finding by the District Court of Alleppey in O.S. 64 of 1079. Ext. E dated 19.12.1082, is copy of the judgment in that case. That was a suit between the Poonjar Chief and the Vanjipuzha Chief. That related to a dispute between the two Chiefs concerning a large tract of land measuring about 1750 acres. The same was claimed to be a portion of the Poonjar Edavagai lying on the southern side whereas the Vanjipuzha Chief claimed it as his own lying on the northern side of the Peruvanthanam Pakuthy. The learned judge had to fix the exact location of the Pullakayar. The consideration of this question was with reference to the points marked in the plan, which was produced in the case. It was held that Pullakayar started from the point J in the plan, Ext. XIV, filed in that case. A copy of this plan has not been produced here. The same would have easily settled the disputes between the parties. But, it is possible to locate that point J in Ext. F plan. It appears to us that it corresponds to point X in Ext. F. The learned judge had referred to the natural features of the land and also to the plan and report, which had been prepared by the Revenue Officer Mr. Arkli. It was found by the lower court that the source of the Pullaka river appeared to be Vembalamudi Peak, that Mr. Arkli's plan and report showed that the two streams join at the point J in his plan, that this stream was called the Pullakayar from that point and that the same continued as the northern boundary of the defendant's, that is the Vanjipuzha Chief, desom from where the low ridge of hills from Vembalamudi terminated. Thus, on a consideration of all the circumstances in this case, we are also of the same view. 12. In Ext. B we find one of the southern boundaries as Garudanpara Thodu. Probably, the portion of the water to the east of the point was known by this name. Another thodu, joins this at the point and from there the Pullakayar has its origin. 12. In Ext. B we find one of the southern boundaries as Garudanpara Thodu. Probably, the portion of the water to the east of the point was known by this name. Another thodu, joins this at the point and from there the Pullakayar has its origin. It is true that Vazhukkappara, Garudanpara, Thevarukulam, Cheralayil and Kottukal Kal are not properly identified in this case. But, it is sufficient if we mention that, to the east of the Pullakayar, there are other boundary marks on the southern side of the Kondoor Pakuthy and so, the Pullakayar cannot start from the south-eastern corner of the Kondoor Pakuthy. There was dispute between the Poonjar Chief, the Poovarani Devaswom and the State as regards the proprietorship of certain properties in the Poonjar Pakuthy. Mr. Cheriyan was appointed as the Special Settlement Officer, to settle the Poonjar boundary dispute. He had submitted his report, copy of which is Ext. J. Some portions of his report would support the above conclusion arrived at. We have, therefore, no doubt that the conclusion arrived at by the learned judge that Pullakayar has its origin from the point X noted in Ext. F is correct. 13. A portion of the plaint property lies farther east from this point in Ext. F. It is marked in Ext. F plan by the plot CYZ. If the watercourse to the south of this along the line CZ cannot be called Pullakayar, then the plaintiff could not lay any claim to this plot. This plot would necessarily be the southern boundaries to the east of the Pullakayar given in the ozhugus. The plan Ext. F shows the correct positions of the Poovarani Devaswom and the Peruvanthanam Pakuthy. The plan would show that both these touch Peermade. The south-eastern boundaries of the Poovarani Devaswom lands (same as the Kondoor Pakuthy) are Vazhukkappara, Garudanpara Thodu, Thevarukulam Medu and Cheralayil Para. None of these is given in Ext. C as the northern boundary of the Peruvanthanam Pakuthy. Ext. C gives Amrithamala and Pullakayar as the northern boundaries. It is evident that Amrithamala does not touch the Kondoor Pakuthy. Entirely different land marks are given to the boundaries of the Kondoor Pakuthy. These boundary marks could not be claimed as portions of the properties described in the Ozhugu. The plot in question, as seen from Ext. Ext. C gives Amrithamala and Pullakayar as the northern boundaries. It is evident that Amrithamala does not touch the Kondoor Pakuthy. Entirely different land marks are given to the boundaries of the Kondoor Pakuthy. These boundary marks could not be claimed as portions of the properties described in the Ozhugu. The plot in question, as seen from Ext. F plan, lies between Amrithamala and the south-eastern portion of the Kondoor Pakuthy described in Exts. B and D. This south-eastern portion, is the south-eastern portion of the Poovarani Devaswom lands also. This plot could not, therefore, be claimed by the plaintiff. The commissioner's report Ext. G would show that the survey mark of the boundary line is at point Y and that the survey line is shown as the straight line joining points Y and X. It is also stated in Ext. G that, from point Y where there is the Kokkai cliff, there is a drop and the land at the bottom is about 1000 feet below this cliff. It is also stated that the portion there is inaccessible because of the thick and luxurious growth of trees. That is an indication that the boundary line of the Poovarani Devaswom lands must terminate along the survey line XY. It is, therefore, clear that the plot of land CYZ does not belong to the plaintiff. The finding of the court below regarding this is, therefore, correct and it is confirmed. 14. The remaining portion of the plaint property was stated to be the right bank and bed of the Pullaka river beginning from the middle stream. The plaintiff claims this as the riparian owner of the property lying on the right bank of the river. If it is a river flowing along private holding, then, the plaintiff could lay such a claim here. The Pullaka river is one of the boundary marks of two Pakuthies of two different taluks, that is the Poonjar Pakuthy of the Meenachil taluk and the Peruvanthanam Pakuthy of the Kanjirappalli Taluk. It was the main function of the Land Revenue Department in regard to the several Edavagais of the Travancore State to see that the external boundary marks were properly maintained and to detect promptly and take stringent action against any attempt to shift such boundary marks in favour of the Edavagais (see para 8, page 4 of Part I of vol. III of the Revised Edition of the Travancore Land Revenue Manual published in 1936). It is also mentioned there that an annual report of the condition of these boundary marks should be sent up by the Tahsildar to the Division Peishkar, who was to forward it to the Land Revenue Commissioner with full information as to the action taken to deal with encroachments, if any, discovered during the year. All unassessed lands within the limits of the Edavagais if they are used or reserved for public purposes or for the communal use of villagers, are deemed to be the property of Government for the purposes of the Land Conservancy Act. The boundary marks between Taluks and Pakuthies are to be maintained by the State and necessarily therefore they belong to the State. If that is the case, then the provisions of the Land Conservancy Act IV of 1901 would apply to those lands. S. 3(1) of the Regulation described the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks, lakes, back-waters and water-courses as the property of Government. An exception is made in Cl. (a) of sub-cl. (1) of S. (3) of the Act, relating to the property of proprietors of Edavagais or Jenmies or holders of Inams or any person claiming through or holding under any of them. If the stream in question was really flowing along the Edavagai lands probably, the plaintiff could have claimed it with success. Since the river in question belongs to Government as the boundary mark of two taluks, the owners of lands on either side of the river could not lay any claim to it. 15. In the view we take, it is unnecessary for us to consider the law relating to the ownership of private streams in England or in other parts of India. In England, the soil of the sea between the low-water mark and so far out to sea as is deemed by International law to be within the territorial sovereignty of the Crown is claimed as the property of the Crown although outside the realm and so the soil of the bed of all channels, creaks, and navigable rivers, base and estuaries, as far up the same as the tide flows is, therefore, considered to be the property of the Crown. (See paragraph 849 of Halsbury's Laws of England, Vol. 33). (See paragraph 849 of Halsbury's Laws of England, Vol. 33). The idea of ownership of streams here is entirely different. Even in the Madras Presidency, the idea of ownership, as understood in England, has not been accepted. If the stream is navigable at the time when a grant of the land on either side of the stream is made by the Crown, it is presumed that the stream is not intended to be included in the grant. If the stream is navigable, then, necessarily, the public is entitled to use the same so that it is considered to be a stream for public use. This can be availed of only if the proprietorship of the stream is retained with the State. It is also pointed out that the English Common Law, under which the ownership of the Crown in the bed of a river ends and that of the riparian owners begins at the point where the stream ceases to be tidal in navigable and non-navigable rivers alike, cannot be accepted as the law to be applicable in India. This position was elaborately considered in Madras Province v. Jangannadh Raju Garu, A.I.R. 1945 Mad. 396. The position here is more favourable to the State than to the riparian owners. At any rate, there is some evidence in the case to show that the Pullakayar is navigable. (See the evidence of the Proverthicar as D.W. 1). The plaintiff could not, therefore, claim any right over the bank or the bed of the river. It is the right bank and bed from the mid-stream of the Pullaka river that is claimed as portion of the plaint property. The lower court found that the plaintiff could not claim it. For the reasons mentioned, we agree with the learned judge. 16. The result is that there is no substance in this appeal. We dismiss it with costs to the State. The objection memorandum filed by the Poonjar Chief against the findings which were not in his favour is without substance and hence dismissed with costs. Dismissed.