The burden of proof for ownership of unoccupied village natham rests on the claimant, who must prove a grant or adverse possession for 60 years to succeed in their claim.

Jackson, J.

1. The appellants sued the Secy. of State for a declaration that they were entitled both to a small triangle of land for which penal assessment had been levied by the defendant; and also to a shed and its site lying between this land and their house. They described the suit property as lying within the village natham. It has been found that the small triangle lies in tank poramboka and cannot be claimed by plaintiffs, and in regard to that portion the appeal is not pressed.

2. The District Munsif found that the plaintiffs are entitled to the other portions (C and D in the plan Ex. 3). The lower appellate Court reversed that finding and dismissed the suit. In respect to this latter portion the plaintiffs appeal.

3. The title set up in the plaint is that plaintiffs and their ancestors had been enjoying the property for more than a 100 years. The lower Courts have found that plaintiffs did not prove enjoyment for more than 30 years. That finding is not disputed; but plaintiffs contend that their 30 years enjoyment raises a presumption that they hold the property by immemorial right, and the burden rests upon the defendant to rebut that presumption. It cannot be said that any such presumption arises in the case of village site poramboke.

4. As explained in Collector of Godaveri Dist. v. Rangayya [1908] 4 M.L.T. 440 according to the common law of the country the control of gramanatham vests in the revenue authorities, and they are at liberty to grant portions of it at their discretion to persons who apply for it for building purposes; Government has the right at any time to appropriate it for any public special purpose. Again in Madathapu Ramayya v. Secy. of State [1904] 27 Mad. 386 Bhashyam lyengar, J., observed on p. 393:

The lane is a portion of the "grama natham" or village site and presumably the free hold in the soil is in the Government.

5. In Seshachela Chetty v. Chinnasami [1917] 40 Mad. 4l0 at p. 466, Ayling, J., has collated the authorities which support

the general presumption of the common law of India that the ownership of all unoccupied land vests in Government.

6. That being so, a person who has occupied such land must prove in order to support his title either that he has received the land by grant, or that he has enjoyed adverse possession for 60 years so as to defeat the title of Government. There is no question now of adverse possession, and the plaintiffs have never pleaded, and certainly have never proved that they obtained a grant. Any pre-sumption that can be drawn from the bare fact of 30 years occupation is rather against the plea of a grant, because within that period the revenue authorities have been fully alive to their responsibilities-and any one occupying village site may be presumed either to have a document authorizing his occupation, or to have encroached.

7. It has been argued that unless the plaintiffs contention is upheld the Government will be at liberty to put every village householder to the proof of his title, and to eject those who have no documentary proof. As Government administer these village sites through the revenue department for the purpose of providing suitable house sites for the villagers it is inconceivable that they would attempt to turn out the present occupants merely in order to install others in their place. But in cases where a person appeared to be enjoying more than his proper allotment, it is quite conceivable that Government might take act-ion in the interests of the villagers,, as a whole; and no one but the encroacher himself would have cause to complain. In the present case the plaintiffs seem to have thought their title to their shed not to stand upon the same footing as their title to their house, and they themselves took the initiative in having it tested. Therefore it hardly lies in their mouth to accuse Government of art unjust inquisition into title. The case has been correctly dealt with by the learned Subordinate Judge and this appeal must be dis