Alfred Henry Lionel Leach, C.J.

1. The appellants are the landholders of the Piranthakam Mitta in the Salem district. They filed the suit out of which this appeal arises to establish the right which they claim to cultivate the bed of the tank in the Piranthakam village when the tank becomes dry in the hot weather. The respondents who are ryots deny that the appellants possess this right and their plea has been accepted by the Subordinate Judge. The appeal is from the decree of the trial Court dismissing the appellants suit.

2. In 1937 the respondents applied to the Deputy Collector under the provisions of Section 20 of the Madras Estates Land Act, for an order declaring that they possessed the following rights : (1) to graze their cattle on the land forming the bed of the tank; (2) to cut for the purpose of fuel shrubs growing there; and (3) to remove silt. They also asked for an order restraining the appellants from cultivating the land. The Deputy Collector held that the respondents had none of the rights claimed by them, but he accepted their contention that the appellants were not entitled to cultivate the land, although they did possess the right to use it for grazing.

3. The respondents accepted the order of the Deputy Collector, but the appellants did not and consequently they filed the present suit. In the trial Court the appellants based their case on two grounds. In the first place they claimed the right to cultivate the land as the owners of the bed of the tank and in the second place they claimed the right by custom. Section 20 of the Madras Estates Land Act has reference to customary rights and before the Deputy Collector both sides relied on custom. The Subordinate Judge held that the appellants could not claim the right to cultivate merely because they were the proprietors of the bed of the tank. In his opinion this right only arises by custom and there was no such custom. The appellants accept the finding of the Subordinate Judge that they cannot claim the right by virtue of custom, but say that he erred in rejecting their first plea.

4. The definition of "ryoti land" is given in Section 3 (16) and it is there expressly stated that "ryoti land" does not include beds of tanks. The amending Act of 1934 in some respects changed the definition of "ryoti land," but in the Act as it originally stood and in the Act as now amended tank beds are excluded from the definition. The proprietary rights of Zamindars in the bed of the tanks lying within their estates has been recognised by the Privy Council in two cases. See Madras Railway Co. v. Zarmindar of Carvatenagarum (1874) 1 I.A. 364. and Prasad Rao v. Secretary of State for India (1917) 33 M.L.J. 144 : L.R. 44 IndAp 166 : I.L.R. 40. Mad. 886 (P.C.). The learned advocate for the respondents has very properly conceded that the bed of the tank with which the appeal is concerned is vested in the appellants as the landholders. Section 20 of the Act reads as follows:

20(1) The Collector may, on the application of the landholder or other person interested, decide any question as to whether any land is or is not of the description mentioned in Sub-clause (a), (b) or (c) of Clause (16) of Section 3, or as to the customary rights in the user of any land which is of any such description, as existing at the commencement of this Act.

(2) Any person aggrieved by such decision may within a period of one year from the date thereof institute a suit in the Civil Court to establish the right claimed by him in respect of such land but subject to the result of such suit, if any, the Collectors decision shall be final.

It is Sub-clause (a) of Clause (16) of Section 3 which excludes beds of tanks from the definition of "ryoti land". It will be observed that an application under Section 20 must be confined to the question whether the land is or is not of the description mentioned in Sub-clause (a), (b) or (c) of Clause (16) of Section 3 or to a question with regard to customary rights in th