Judgement

Appeal (No. 55 of 1924) from a decree of the High Court (March 18, 1920), which affirmed a decree of the Subordinate Judge of Cocanada, subject to a variation.

The suit was brought against the respondent by the trustee of the Vizianagaram estate, in whose place the appellant had been brought on the record. The plaintiff prayed for a declaration of his title to a lanka of 247 acres, and for an injunction restraining the defendant from levying upon him a penal assessment under Madras Act III. of 1905 in respect of the land.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge made a decree dismissing the suit, and that decree was affirmed by the High Court (Ayling and Seshagiri Ayyar JJ.), save that it was declared that the assessment could not be levied upon the land for a period prior to the Act coming into force ; from that variation the respondent did not appeal.

1925. Nov. 9, 10, 12, 13, 23. Upjohn K.C., Narasimham and P. K. Subba Rao for the appellant. The imposition of the assessment under Madras Act III. of 1905 was illegal. First, because s. 3 applies only to a person who is in physical occupation of the land, and that was not the case here. Secondly, the land was excluded from being Government property for the purpose of the Act by s. 2, sub-s. 1 (c) and (e). It had been granted under pattas to ryots, and the ryots had not relinquished the pattas according to the procedure laid down by the standing orders ; a relinquishment cannot be inferred Mazhar Rai v. Ramgat Singh (( 1896) I. L. R. 18 A. 290.); Arun Chandra Singh

v. Kamini Bardhan. (( 1913) L. R. 41 I. A. 32.) Thirdly, the claim of the Government was by resumption or reversion, consequently by s. 16 the Act does not apply in the absence of a reduction into possession by the Government. The Act being of a penal nature must be construed strictly Dyke

v. Elliot (( 1872) L. R. 4 P. C. 184, 191.); Dickenson v. Fletcher. (( 1873) L. R. 9 C. P. 1, 7.)

De Gruyther K.C. and Kenworthy Brown for the respondent. The contention that the plaintiff was not an occupier was not raised in India, and is inconsistent with his plaint and his position throughout. But the plaintiff was an occupier for the purpose of the Act Madathapu Ramaya v. Secretary of State for India. (( 1903) I. L. R. 27 M. 386.) The Courts in India rightly inferred that the pattas had been relinquished. The Government thereupon got a title ; when land is under water possession is presumed to be in the owner Secretary of State for India v. Krishnamoni Gupta (( 1902) L. R. 291. A. 104.); Kumar Basanta Roy v. Secretary of State for India. (( 1917) L. R. 44 I. A. 104.)

Upjohn K.C. replied.

1926. Jan. 18. The judgment of their Lordships was delivered by

LORD SALVESEN. This is an appeal from the High Court of Judicature at Madras, dated March 18, 1920, which substantially affirmed a decree in judgment dated December 31, 1915, of the Subordinate Judge at Cocanada in a suit at the instance of the appellant against the respondent. This suit arose out of a dispute as to the ownership of a lanka in the river Godavari in the Province of Madras, the extent of which was estimated, at the commencement of the suit, at 247 acres. The appellant is the owner of large estates, including the village of Kotipalli, situated on the banks of that river. The respondent is the Secretary of State for India, represented by the Collector of Godavari. It is common ground that in 1862 there existed a lanka which was Government property, and for the cultivation of which pattas were issued by the Government of the day to ryots connected with the village of Sanapalli, which lies in the neighbourhood of Kotipalli. This lanka was cultivated under these pattas for a number of years thereafter, and the Government assessment was duly paid by the cultivators. An example of such a patta has been produced in the present suit. It is dated in 1869, and indicates that erosion on a somewhat minute scale had already com