Judgement

Consolidated Appeals from a judgment and two decrees of the High Court (September 30, 1909) reversing two decisions of the District Judge of Godaveri.

In 1901 the Governor of Madras in Council by notification under s. 4 of the Madras Forest Act (Madras Act V. of 1882) constituted certain lands a reserved forest; by a proclamation and notices under s. 7 persons claiming any rights in the lands were required to state the nature of the right claimed and to produce all documents in support thereof to the forest settlement officer.

The zamindar of Mallavaram, represented by the respondents in the first appeal, claimed to be owner of three parcels of land included in the notified area, and the zamindar of Navadapalli, represented by the respondents in the second appeal, claimed as owner four other parcels. The forest settlement officer on October 19, 1903, rejected both claims, and his decisions were affirmed by the District Judge upon appeals under s. 10 (ii.) of the Act.

The facts held to be established by both the forest settlement officer and the District Judge were as follows The lands were islands formed on the bed of the sea at the mouth of the river Godaveri (a tidal river), and within the three-mile limit. They had not been granted to the zamindars or to their predecessors in title. The date of the formation of lands was not determined, but they were spoken of in both decisions as having been in 1843 recent formations. In 1867 both zamindars granted leases of all seven parcels to the same lessee ; in 1882 a compromise of their rival claims was made, and since then each zamindar had been in possession thereunder of the parcels to which his claim related. No exclusive possession by either zamindar prior to 1882 was proved.

The District Judge was of opinion that, the title being originally in the Crown, the onus was on the claimants to prove adverse possession for sixty years, and that they had failed to do so. The claimants appealed to the High Court, which, by a preliminary judgment delivered on March 27, 1908, remanded the cases to the District Court " to return a finding whether the Crown had a subsisting title." The learned judges (Sir Ralph Benson, Acting C.X, and Monro J.) were of opinion that it rested upon the Crown to show that the possession became adverse to the Crown within sixty years prior to the notification. They remanded the appeal to the District Judge to determine whether the Crown had a subsisting title at the date of the notification. The material part of the judgment (which is reported at I.

L. R. 33 Madr. 1) is set out in the judgment of their Lordships.

Upon the remand it was conceded by the Crown that there was no proof that the islands, or any part of them, had been formed within sixty years of the notification, and, after further evidence had been adduced, the District Judge found that it was not proved that the lands had first become capable of occupation after 1841. On September 30, 1909, the High Court accepted the above finding, and delivered final judgments allowing the appeals. Decrees were passed excluding the lands from the reserved forest area.

1916. March 31 ; April 4, 5. Sir Erle Richards, K.C., and Kenworthy Brown, for the appellant. There was no right of appeal to the High Court. The decision of the District Judge under s. 10 (ii.) of the Madras Forest Act, 1882, is final; the Act does not provide for an appeal, and s. 16 shows that no further appeal is contemplated. The decision was not a " decree " within s. 2 of the Code of Civil Procedure, 1882 ; consequently there was no appeal given by s. 584 of that Code Rangoon Botatoung Co. v. The Collector, Rangoon (L. R. 39 Ind. Ap. 197.); Meenakshi Naidoo v. Subramaniya Sastri (( 1887) L. R. 14 Ind. Ap. 160.); Ravi Veeraghavulu v. Bomma Devara Venkata. (( 1914) L. R. 41 Ind. Ap. 258.) Kamaraju v. Secretary of State for India (I. L. R. 11 Madr. 309.) was wrongly decided. In any case the High Court wrongly held that the onus was on t