Seshachala Chetty and Others vs Para Chinnasami and Others

John Wallis, C.J.—The question referred to us is, whether in a mirasi village the mirasidar is entitled to recover possession of a house site

held under a patta from Government; and, to show what it involves, it may be well to state at once the circumstances in which it arises in the case

under appeal. On the 16th'' November 1894 Mr. George Stuart Forbes, Acting Collector of Chingleput, passed orders on certain petitions

praying for an extension of the cheri nattam, or part of the village site reserved for pariahs, in the village of Mannur in the Saidapet Taluk not far

from Madras. He began by observing that out of the whole Survey No. 14A of 23 acres which was classed as village site, 97 cents, or nearly one

acre, identical with Survey No 45 in the paimash or old survey, was shown in the paimash account as ""Cherial Pizhakkadai"" or reserved for

pariahs. There had, he went on to say, been no erection on this site by any mirasidar since the date of the paimash (apparently about 1845) and the

only building on it was an arrack shop. He did not interfere with this, but stated that the rest of the plot was available for sites in extension of the

paracheri or pariahs'' quarters, and directed it to be laid out in streets and house sites in such a manner as to facilitate sanitation and the

convenience of the residents. As regards any claims from mirasidars, ho merely observed that ""the short usurpation by the mirasidars in recent

times which is supported by the entry in the Adangal of ''Seshachellam Chetty (plaintiff) and others'', is invalid and cannot be recognized."" The

Adangal (Exhibit G) is described as the village account of lands held in the village according to Survey numbers. The paimash register only

contained the names of actual occupiers of sites in the nattam, as appears from Exhibit X, but in 1886 it came to light that at some time or other the

names of the mirasidars had been inserted in the Adangal as well the names of the actual occupiers which alone appeared in the paimash register,

and had also been inserted as owners of the unoccupied sites as regards which no names appeared in the paimash register; and this was apparently

what Mr. Forbes was alluding to in speaking of the recent usurpation. Exhibits I to VIII are applications for sites put in immediately after the

Collector''s order by residents in the paracheri which, the endorsements show, were granted or refused according to the merits. This was in 1894

and early in 1895, and the present suit was not brought until January 1905 ten years later. The plaint alleges that the plot was the property of the

plaintiffs and that they constructed and rented to the 13th defendant a leaf-roofed shop marked B in the annexed plan; that the defendants on 17-

10-1903 took wrongful possession of the plot and erected the shed marked C; and that defendants 1 to 12 with the 13th defendant afterwards

dismantled the shop B and erected the sheds D and E. Defendants 1 to 12 pleaded that the site was not the property of the plaintiffs but of

Government who had granted the sites thereon. They alleged that the buildings C (a mission hall) and E (a sundries bazaar) had always been in

existence and that D bad been erected three or four months previously as the shop B was in a ruined state. The 13th defendant pleaded that he

was only a servant of the owner of the toddy shop, and the latter was added as 14th defendant but remained ex parte. The District Munsif at first

dismissed the suit on the ground that the Secretary of State in Council was not a party, but on appeal the plaintiffs undertook to make him a party,

and this having been done, the Collector filed a written statement on his behalf as 15th defendant in which he alleged that the plaintiffs have not and

never had any title to the property, and never occupied it in a manner inconsistent with the rights of Government, and that Government had

exercised rights of ownership over it to the knowledge of the mirasidars, The entries in the village accounts for some years by officers who were

themselves mirasidars were, it was alleged, only paper entries and did not affect the proprietary right of Government. In his judgment the District

Muusif observed that in the Settlement Register Exhibit E (1875) the names of the 1st plaintiff and the other mirasidars were not entered against

Survey No. 14A, the village site, and thenceforward they had never taken any steps to assort the right to the land and have it included in their

pangu lands. The District Judge took the same view and observed that the plaintiffs had never cultivated the land, and had put up the thatched hut

B in 1902 long after Government had assigned the sites. They accordingly dismissed the suit but held it was not barred as it was instituted within 12

years of the grants made under Mr. Forbes''s orders at the end of 1894. The result of the findings would therefore appear to be that the site in

question was waste land over which the plaintiffs never exercised any rights of ownership until some years after it had been allotted by Government

in extension of the cheri or pariah''s quarters.

The Privy Council have very recently pointed out in Secretary of State for India v. Bai Rajbai (1915) L.R. 42 IndAp 229 that, as regards lauds

such as these which have been ceded by native rulers, the only enforceable rights are those conferred by the Crown by express or implied

agreement or by legislation; but in order rightly to appreciate the action of the Crown or Government, it is necessary to know something of the

preexisting state of things. We have not been referred to any critical discussion of the legendary settlement, of Thondamandalam, as this part of the

country was called, by 300,000 Vollalas from the west coast of India which is referred to in the judgment of Sankaran Nair, J., and had been

dismissed as fabulous by Sir Thomas Munro in his well-known minute. What we do know is that this District was the seat of an ancient civilisation,

and that Kanchi or Conjeevaram was the capital of the Pallava dynasty who flourished until their overthrow by the Cholas about the end of the 9th

century; and that it was afterwards one of the principal cities in the Chola kingdom, which again was absorbed in the Vijianagar Empire in the 15th

century. That Empire had fallen into decay, when in the middle of the 17th century one of its nominal dependents granted the East India Company

four mirasi villages on which Fort St. George, and tho adjoining White and Black Towns, as they were then called, were erected. To these was

added some years later, the Shrotriem Village of Triplicane; and after the advent of the Mahomedans three more mirasi villages which are now

included in the Municipal limits of Madras were granted in 1694 during the reign of Aurangazib. Further grants were made early in the 18th century

of villages with what are now within the Municipal limits and beyond; and finally the whole District of Chingleput as it now is was assigned by the

Nabob of Carnatic to the Company in return for their services against his enemies and became known as the Jaghir. It was subsequently laid waste

by Hyder in his invasion of the Carnatic, and it was only some years after 1784 when peace wa3 restored that the question with which we are now

concerned came to the front in connection with the proposed introduction of a permanent settlement on the lines on which Lord Cornwallis had

carried out the Permanent Settlement of Bengal, and it became necessary to investigate the position and rights of the mirasidars in relation to the

land. If they were the real owners of the land it could not be parcelled out among Zamindars under Regulation XXV of 1802 which reproduced the

Bengal Regulation of 1793; and later, when the idea of a permanent settlement was given up and the system, of ryotwari settlement with the

individual cultivator was coming into favour, this alleged ownership of the mirasidars was again an obstacle to the introduction of settlements with

the actual cultivators. The result of the controversy in the early years of last century was that the settlement was made with the mirasidars and not

with Zemindars or with the actual cultivators; but many questions such as those with which we are dealing were left outstanding and, lapse of time

has not made it any easier to settle them in spite of the lengthy discussions which are to be found in the Mirasi Papers which go down to 1864 and

in the further papers which have been specially printed for this case.

It is unnecessary to go into old controversies as to ownership of land in India as to whether, as has been sometimes held, the State was the

owner of all land which it had not actually alienated and the cultivators were merely tenants under it, or whether the cultivators are the owners

subject to the right of the State to share in the produce or whether, as James Mill thought, (Fifth Report Ed. Higginbotham page 816), Government

and the cultivators should be regarded as ""joint tenants"" by which he probably meant co-owners. In 1796 Mirasi 26 the Madras Government went

so far as to assert it to be the great feature in all the Governments of India that the Sovereign is the Lord of the soil. As regards waste lands at any

rate it seems clear, as held in The Secretary of State for India v. M. Krishnayya ILR (1905) Mad. 257 that by the Mahomedans waste lands in

conquered countries were always held to be the property of the State. It may be taken then that the principle to start with generally is that in India

waste or unoccupied lands at any rate belong to the State, and the Madras Legislature has in Madras Act III of 1905, which is modelled on

Bombay Act V of 1879, given statutory force to this rule which had previously been held applicable to lands of this character.

The question then is, whether unoccupied lands in mirasi villages in this District, and more especially the unoccupied lands set apart for house

sites in the villages, form an exception to the general rule and were recognised as private property when or after the British Government succeeded

to the previous rulers. The distinctive thing about the District is the persistence until very recent times of the system of joint cultivation of the village

lands by the village community of mirasidars, the actual cultivation being done by a dependent population working under them. This is a stage of

agricultural development through which various peoples have passed and of which traces are to be found in England, Germany and Russia, both

European and Asiatic, and even in Japan. (See Lewinski''s Origin of Property, London, Constable and Co. 1913), but it by no-means necessarily

connotes the ownership by the cultivators of the adjoining waste or unoccupied lands, or implies that the cultivators have greater rights in respect to

them than inhabitants of other villages in the neighbourhood where the system does not prevail as was pointed by Sir Thomas Munro. The right of

the State to admit cultivators to uncultivated land for the purpose of realizing its revenue which is a necessary incident of the immemorial revenue

system and is recognized in the recently published Arthasastra of Kautilya dating from 300 B.C, Bk. 2, C. 1, Section 47 necessarily involves the

right of the State to provide such cultivators with sites as the nuttam. Nor is it a necessary inference that the village community owned all the land

within the boundaries of the village, for as observed by Mr. Hodgson in the Report on the Survey of Dindigul (1) note (Fifth Report : Ed.

Higginbotham Co. at page 607) ""the whole lands of a province in India whether cultivable, arable, waste, jungle or hills have been from time

immemorial apportioned to a particular village so that all lands are within the known boundaries of some village. The total area of all villages forms

the whole landed surface of that particular province. And there is satisfactory evidence, as appears from Mr. S. Krishnaswami Aiyangar''s Ancient

India and Mr. Vincent Smith''s Early History of India 3rd Edition 1913, that under the Cholas the lands and cultivation were carefully surveyed and

holding registered at least a century before our Domes day Survey.

It is perhaps hardly safe to make any positive assertion about the ownership of the nattam and other unoccupied lands in periods so remote as

to which the evidence is so scanty, but the great irrigation works and temples which have come down to us from this period and were probably

produced by forced labour point to active intervention and control by the State and do not support the conclusion that the village cultivators

whether cultivating jointly or individually were regarded as the owners of land which they had not reclaimed to cultivation in the absence of

evidence of user or recognition.

As evidence of recognition it is said by Sankariah in the Mirasi Papers that former rulers were in the habit of purchasing lands from the villagers

to present them to temples and in the three volumes of Dr. Hultzsch''s South Indian Inscriptions there are inscriptions nearly a thousand years old

that appear to bear this out, but it does not appear that the lands so acquired were waste.

Nor is such a view supported by what we know of the history of the mirasi villages now included in the municipal limits of Madras which, as

already mentioned, were acquired in the 17th century and the years immediately following long before the present controversy arose. The three

bulky volumes, recently brought out by Col. Love for the Government of India under the title of ""Vestiges of Old Madras"", contain a digest of all

that is to be found in the records about the city from its foundation down to the end of the 18th century; and it is remarkable that they do not

appear to support the claim of the mirasidars to the waste lands of the villages. Such references as there are seem to show that the Madras

Government treated all waste lands as at its disposal and the claim would appear not to have been disputed. See Vol. I pp. 170, 579 - 80, Vol. II

p. 127 and pp. 193 an 194. In Vol. II p. 505 under the year 1763 we find mention of numerous leases granted by the Company of large areas for

the erection of the garden houses that form a feature of-the city; and Mr. Ellis'' answer in the Mirasi Papers to the 9th question put to him suggests

that, when he wrote in 1814, a great part of the village lands had been converted into gardens in this way; and in the suit in the Supreme Court in

1808, which will be referred to later, Sir Thomas Strange C.J. stated that the only cases as regards mirasi villages which came before the Mayor''s

Court in the 18th century dealt with another question.

The fact relied on by Sankaran Nair J. that in the conveyances of the 18th and early 19th centuries which are collected in the Mirasi Papers the

transferor purports to convey not only his cultivable lands but also all his rights in the nuttam and the waste lands which had not been divided and in

fact deals with them as the subject of co-ownership is of course to be considered, but as against the State which was the other party interested

such claims appear not to be entitled to much weight except in so far as they are supported by actual user or recognition.

Coming now to the views expressed by Mr. Place and later by Mr. Ellis, Collector of Madras, and his Sheristadar Sankariah in answer to the

questions put by the Board of Revenue in 1814 (Mirasi Papers 155), though they were no doubt well warranted in championing the mirasidars and

asserting their proprietary interests against proposals to ignore them either in favour of Zemindars or of the actual cultivators, it by no means

follows that the mirasidars were the owners of the waste lands in the village as well as of the lands they had reclaimed to cultivation. Sankariah, a

successful official of those days, who, as was pointed out by my learned brother in the course of the argument was almost certainly a mirasidar

himself, no doubt says distinctly that they owned the waste, but Mr. Ellis speaks only to a restricted right of user falling short of full ownership.

Eventually even as regards cultivable waste the mirasidars'' ownership has not been fully established and though they had*and still have a

preferential right to such lands, yet on failure to cultivate them they are liable to have cultivators put in by Government. Mr. Ellis and Sankariah no

doubt claim that they were entitled to be restored within 105 years on making compensation, but that claim has not been substantiated. No doubt

their claim to receive swatantrams, or payments from the newly admitted cultivators, is evidence of their claim to ownership of the waste which

they had reclaimed to cultivation; but, according to the decision of the Full Bench in Sakkaji Rau v. Latchmana Gaundan ILR (1880) Mad. 149

such swatantrams are not generally payable but only on proof of custom. Further Mr. Ellis'' views have never won complete acceptance. In 1822

Mirasi 423 the Court of Directors found fault with the Madras Government for having printed and circulated to the service the, answers of Mr.

Ellis, as a question of this kind should be decided not upon one man''s opinions alone but upon a consideration of all the evidence which could be

obtained. They considered the course adopted would to a great degree have the effect of imposing upon the service the opinions of Mr. Ellis as the

authoritative conclusion of Government. The Government in reply disclaimed any such intention, and we find the Board of Revenue treating the

question of the extent of the mirasidars'' rights in waste lands as an open one and framing a fresh series of questions for Collectors on the subject

(Mirasi Papers 427) on the 11th December 1823. The Government of Sir Thomas Munro did not pass any orders on these proceedings so that

fresh queries were never sent to Collectors; and on 31-12-1824 Sir Thomas Munro wrote his well-known Minute on ""the state of the country and

the condition of the people in which speaking with his wide experience gained by him as a settlement officer in various districts of Southern India as

to the system prevailing under the Vijianagar and Mahomedan rulers he incidentally contested nearly all Mr. Ellis'' opinions and conclusions.

Selections from the Minutes of Sir Thomas Munro, (Ed. Arbuthnot, Madras. Ed. Higginbotham, 1886, p. 228.) The question discussed by Sir

Thomas Munro no doubt related to the cultivable waste rather than to waste which was excluded from cultivation either as unfit or as reserved for

other purposes; but there can be no doubt that he would have expressed himself as strongly as regards the ownership of waste excluded from

cultivation.

The paimash survey and accounts of the District appear from the District Manual to date from the years immediately following, and the extract

from the paimash accounts (Exhibit X.) exhibited in this ease and dating it is said from 1845 shows that, while the name of the owner is given in the

case of each occupied site in the nattam, no name is entered against the unoccupied portions, which goes to show that the private ownership of the

unoccupied nattam was not then recognized. In 1839 the Board (Mirasi Papers, 452) expressed the opinion ""that as regards immemorial waste the

rights of the mirasidars are confined to the pasturing of their cattle, the cutting of firewood etc., and similar common privileges, but these must

always give way to any proposition ensuring the extension and realisation of the public revenue."" The passage is important as it was cited by the

Full Bench in Sakkaji Ram v. Latchmana Gounden ILR (1876) M. 149 and adopted as laying down the true rule in Sivanatha Naicken v. Nattu

Ranga Chari ILR (1903) Mad. 371.

We are not however immediately concerned in this case with the general question of the ownership of waste lands but with the ownership of

part of the village nattam or village site. The nattam or area reserved for house sites is a feature of every village, zamindari, ryotwari and mirasi

alike, and consists of unassessed land set apart for the erection of houses and for the adjoining backyards. In Dr. Hultzsch''s South Indian

Inscriptions, Vol. II, pt. 1, No. 4, we find the ur-nattam and paracheri, or pariahs'' quarters, enumerated with tanks and burying grounds as free

from assessment, and there are other inscriptions of the same kind showing that a portion of the site was set apart for pariahs or untouchables from

very early times. So far as the inscriptions enable us to judge, the affairs of the village appear to have been managed by sabhas or assemblies of

leading men in the village who were probably left to allot house sites as the occasion arose without iterference. Such a power of allotment would

not connote ownership, but might of coarse give rise to it if it led to the sites being dealt with as private property and sold or leased as such.

As regards waste lands generally the Mirasi Papers contain discussions as to whether the mirasidars were entitled to compensation for waste

lands acquired for public purposes, and that such claims were in some instances admitted appears not only from the instances given but also from

the fact mentioned in the Chingleput District Manual and also by Mr. Stuart in his Report in 1909 that Government in 1870 decided to refuse any

longer to pay compensation for such lands. The case which subsequently came before Sir Charles Turner will be considered later. As regards the

nattam itself in 1856 (Mirasi Papers, 538, 553) the question was the subject of a strong divergence of views between the Board of Revenue and

the Government of the day which favoured the mirasidars'' claims and went so far as to dispossess in his favour a stranger whom the mirasidar had

sued unsuccessfully in the Civil Courts. The papers were sent home, but the Court of Directors in their reply did not commit themselves to one

view or the other.

In 1869 Government framed Dharkast rules (as to applications for grants of land) in the District in which the prior claims of the mirasidars were

recognised. Rule 13 however provided that tanks, threshing floors, burying grounds etc., should not be given away on dharkast and concluded

applications for gramanattam or village sites shall not be entertained."" In 1872 as appears from G.O. dated 16th December 1872 No. 1684, the

Board called for returns from Collectors as to the practice in their districts of giving gramanattam land as house-sites to persons who were neither

pattadars nor actual cultivators; and the answer from Chingleput was it was granted to all applicants on a fixed scale. This goes to show that the

mirasidars were, to say the least, not then very conscious of their rights now claimed for them. Commenting on the answers returned, the Board put

forward the view that the gramanattam in villages is the communal property of the villagers, a position which may be taken up with regard to non-

mirasi as well as to mirasi villages. But the Government of the day were not prepared to go so far, as they were of opinion that the old

hookamnamahs showed that enjoyment of the gramanattam was subject to regulation by Government. These hookamnamahs no doubt related to

non-mirasi villages, for as already observed, whatever the ownership of the nattam, the mirasidars were probably left to allot sites in the nattam

according to requirements and this was probably not interfered with by the Mahomedan rulers who generally rented the villages to the mirasidars

themselves at a fixed rental, except in so far as they may have granted villages in inam. The District Manual contains""a long list of inams, but there

are no particulars of the dates or terms of the grants. In passing orders on this occasion asserting the title of Government in the nattam in ordinary

villages Government made an exception in favour of purely mirasi villages where they said ""the gramanattam no doubt appertains to the mirasidars

equally with the other poramboke."" Accordingly they issued rules on the subject excepting Zemindari and mirasi villages and villages which were

private properly, although the Collector''s answer showed that the grants of nattam had been made by Government without opposition in

Chingleput. Two years later however when the settlement of Chingleput was effected an entry was made in the settlement register of each village

(cf. Exhibit E) that in the gramanattam no new enclosure was to be made or new building erected without permission in future, which shows that

the nattam was not then treated as completely at the disposal of the mirasidars. The G.O. dated 18th August 1886 No. 724 Rev. contains a

Board''s proceeding rejecting the claim of the mirasidars to control the cherinattam in which the claims of the mirasidars are vigorously attacked on

much the same grounds as have been urged before us, and Government did not interfere with the Board''s decision but recorded the proceedings

without remark. In 1890 Government followed this up by directing that in the Adangal accounts, where in addition to the name of the occupier the

name of the mirasidar was found, it should no longer be recorded. The paimash register Exhibit X in this case only gives the names of the owners

of sites in actual occupation and does not show any owner against No. 45 the suit land but merely describes it as the backyard of the cherimen. At

some subsequent period the names of the mirasidars were entered as owners in the Adangal account, not only of unoccupied sites like this, but

also of the occupied sites. It was alleged that this had been done surreptitiously to create evidence of ownership and the mirasidars names were

struck out in cases where there was an occupier, but apparently were left in when the site was unoccupied. In these circumstances I cannot give

the entries in the Adangal accounts the weight that might otherwise attach to them. The question came up again in 1892 when Government

expressed them selves more guardedly observing ""the question of the ownership of pariah house-sites is one of legal right and if the mirasidars have

it they can only be expropriated by compensation."" Lastly we have the report of the Special Settlement Officer Mr. Stuart in G.O. 2868 dated 19-

10-1909 which shows that where the mirasi right is in the hands of a few, the claim to the village site is still often kept alive and used for the

purpose of keeping the rest of the population in subject ion, and that in other cases no attempt is made to enforce it.

Coming now to the decisions of the Courts - the judgment of Sir Thomas Strange in 1808 in the Thondiarpet base (Mirasi Papers, 127) shows

that the right of the mirasidars to the village site was proved in that case by abundant oral evidence to the satisfaction of the Chief Justice who

however observed that it did not appear and was not material in which respect, if any, the mirasidars were subject to the intervention of

Government except for the sircar share. The principle which was laid down and on which the judgment proceeded was that the nature of mirasi

right was to be ascertained by user; and that still appears to me to be the governing test. In 1841 (Mirasi Papers, 462) we have the judgment of

Mr. Lewin in the Provincial Court of Chingle-put in a suit to which Government was a party and did not appeal, in which as to cultivable waste the

law was taken from Mr. Ellis'' answers and Government were held to have no right to issue cowles of lands in mirasi villages which the mirasidars

were willing to cultivate. This does not really amount to more than a recognition of the mirasidars'' preferential right to cultivate, and must now be

read with the subsequent Full Bench decision in Sakkaji Row v. Latchmana Goundan ILR (1876) Mad. 149. The judgment in 1849 of Rudder

Adalut in Special Appeal No. 108 of 1844 (Mirasi Papers, 486) is more directly in point as it recognised the mirasidars as the hereditary

proprietors of the soil including the nattam, and laid down that if a purakudi ceased to cultivate he became a casawargam and liable to pay rent for

his backyard to the mirasidar who clearly had the right of ejection. The judgment in Special Appeal No. 186 of 1859 (Mirasi Papers, 585) was

also a suit in which the mirasidar was held entitled to evict the casawargam tenant from a house-site which had been in his occupation for a great

number of years on paying compensation for the buildings ho had suffered the defendants to construct and occupy. The fact that these two cases

are from Kumbakonam does not detract from their weight, as the rights of the mirasidar were fuller in Chingleput than in Tanjore. Coming now to

the year 1882, in that year Sir Charles Turner, C.J., in a suit to which Government was a party upheld the right of the mirasidars to compensation

for a piece of waste land in the village of Vyasarpadi on the authority of Mr. Ellis and Mr. Sankariah, and there was no appeal from his decision.

There was also a decree of the District Munsif of Trivellore in O.S. No. 31 of 1894 in which the right of the mirasidar to the nuttam was asserted

though it was at the same time held that the mirasidar was liable to be assessed for cultivation on the nuttam. There was no appeal, and the papers

suggest that Government was not anxious to bring the question before the higher Courts in the hope apparently that the mirasidars'' claims would

die out of themselves. In Sivanatha Naicken v. Nattu Ranga Chari ILR (1903) Mad. 371 Davies and Benson, JJ., in Second Appeal refused to

interfere with the finding of the Lower Courts that the Shrotriemdar in that case, who stood in the place of Government, and not the mirasidars of

the village, were entitled to the compensation for a piece of waste land in a mirasi village compulsorily acquired. There was evidence of user in the

particular case, but the learned Judges laid down generally that ""the rights of the mirasidars over immemorial waste (apart from their preferential

right to cultivate) appear to be confined to grazing, cutting firewood and similar common privileges as stated by the Board of Revenue in 1839 in

the passage already quoted in this Court''s judgment in Sakkaji Rau v. Latchmana Goundom ILR (1876) Mad. 149; but those rights were liable to

be extinguished by the Government alienating the land."" This passage does not however deal directly with the ownership of the nattam. In the South

Canara forest cam, The Secretary of State for India v. M. Krishnayya ILR (1905) Mad. 257, Benson, J. delivering the judgment of the Full Bench

again laid down that both under the Hindu and Mahomedan Governments waste lands belonged to the State, and observed incidentally that the

right of Government to the waste lands had now after protracted contest been established as against the mirasidars on the East Coast, but this

point did not arise for decision. We have also been referred to the decision of Benson, J. and myself and in Natesa Gramani v. Venkatarama

Reddi 17 M.L.J. 447, where we upheld the finding of the two lower Courts on the evidence that a certain tank in a shrotriem mirasi village

belonged to the mirasidars and not to the Shrotriemdar, or Government assignee. I do not think that Benson, J. who wrote the judgment intended

to lay down anything inconsistent with the opinions expressed by him in Sivanatha Naicken v. Nattu Ranga Chari ILR (1903) Mad. 371 and The

Secretary of State for India v. M. Krishnayya ILR (1905) Mad. 257. The decision in Sivanatha Naicken v. Nattu Ranga Chari ILR (1903) Mad.

371 was explained as having proceeded on the facts proved as to the particular village, and not as laying down as matter of law that poramboke

lands in mirasi villages must necessarily be the property of the Zamindar, that is to say, of Government or its assignee.

I have now dealt with the most important aspects of the question, and it only remains for me to formulate my conclusions in this important and

difficult case. The village nattam is land in the village set apart from time immemorial for house-sites and cannot be used for any other purpose so

long as it retains its character as nattam. On the evidence with which I have dealt I am not satisfied that before the advent of British rule and

especially under the Mahomedan Government unoccupied nattam was generally recognized by Government as the private property of the

mirasidars, though no doubt where, as was frequently the case, they were themselves renters of the village, the control would remain in their hands,

and they may in individual eases have exercised full rights of ownership over it.

The next question is - has the mirasidars'' ownership been established subsequently either by Government recognition or by judicial decision in

the proceedings and cases to which I have referred. As regards recognition, it cannot be said that the Board of Directors, or their successor, the

Secretary of State, have ever recognized the mirasidars as owners of the nuttam, and the varying views of successive Governments in Madras on a

subject which has never ceased to be controversial do not appear to me to establish any general right based on recognition.

As regards the cases, some of the early decisions are not reconcilable with the observations in recent cases such as Sivanatha Naicken Nattu

v. Rangachari ILR (1903) Mad. 257 and Secretary of State for India v. Krishnayya ILR (1905) Mad. 257 and, if I may say so with respect,

appear to proceed on an unreserved acceptance of the views of Mr. Ellis and Sankariah which appears to me to be an unsatisfactory basis. Even

the unreported judgment of Sir Charles Turner is open to this observation. The question is one of great difficulty owing to the unsatisfactory

character of the materials on which we have to base our judgment; but on the whole after the fullest consideration of the case in all the aspects that

have been presented to us, I do not think that these materials warrant us in laying down the broad proposition that unoccupied nattam in this

District is the private property of the mirasidars, and I am of opinion that the question should rather be decided on the evidence in each case and

with special reference to user which will probably not be found to be uniform. This was to some extent the test recognised in Natesa Gramani v.

Venkatarama Reddi ILR (1907) Mad. 510, one of the latest decisions, and a similar course was adopted by Sir Charles Turner and the other

members of the Full Bench who decided Sakkaji Rau v. Latchmana Goundan ILR (1876) Mad. 149, as to the mirasidars'' claim to swatantrums

which in effect involved their claim to ownership of the cultivable waste, that is to say, of the land in the village which they had presumably

reclaimed to cultivation but had ceased to cultivate, a claim which was at least as strong as the present claim to the unoccupied nattam. In this case,

as in that, user must in my opinion be the governing consideration.

I may add that the preferential right of the mirasidars to cultivable waste which is now well established does not appear to me to be of itself a

sufficient foundation for the general proposition that they are entitled to eject inhabitants of the village from portions of the unoccupied nattam

granted to them by Government, though they may be entitled as incidental to such right of preferential cultivation to the allotment of sites on the

unoccupied nattam when necessary.

In the result, I am of opinion that there is no general presumption of the mirasidars'' ownership of the nattam in the absence of evidence of user,

but that where user is shown the presumption of ownership readily arises.

Ayling, J.,

The question propounded for us to answer is as follows:

Whether, in a mirasi village, the mirasidar is entitled to recover possession of a house-site held under a patta from Government.

Slightly amplified I take its meaning to be this:

Where in a mirasi village a person has been granted a portion of the nattam poramboke for use as house-site by a duly authorised Government

officer, can the mirasidar by virtue of any right, privilege or title inherent in him as mirasidar disregard the grant of the house-site by such officer,

and evict the grantee from possession?

In the plaint the suit property is claimed by plaintiffs as absolute owners. How far this claim was intended to be based on the adverse individual

enjoyment which has been found against by both the lower courts is not clear: but I do not think it has been seriously argued by the learned Vakil

who represented them in this Court that their interest in the property amounted to absolute ownership, i.e., ownership without restriction as to the

way in which the property should be utilised. Such a claim would in effect only be supported on the theory that every inch of land within the

boundaries of a mirasi village was equally and entirely the property of the mirasidar - subject only to liability to pay land revenue to the Circar. It is

quite certain that no such claim has ever been recognised by Government or the Courts even if it was ever advanced. It is not disputed that the

right of the mirasidar to deal with various kinds of land in his village is clogged with various restrictions. This is clear even from the authority most

relied on by appellants : vide Mr. Ellis'' report at page 184 of the Mirasi Papers. Tank, road, threshing floor and other descriptions of poramboke

lands, not excepting the nattam or house-site poramboke with which we are immediately concerned, can only be utilised for the purpose indicated

by the description of each : while it is admitted that cultivable land can under certain circumstances be assigned by Government to a non-mirasidar;,

and it has been held in Fakir Muhammad v. Tirumala Chariar ILR (1876) Mad. 205 that a mirasidar cannot without the permission of Government

break up immemorial waste and bring it under cultivation. Obviously then "" mirasi"" does not imply any general rule of complete ownership over all

the lands of the village : and what we have to consider is whether this power to evict under the circumstances contemplated by the reference is an

incident of mirasi and whether it has been recognised by Government. That the latter is a necessary condition of enforceability has been laid, down

in the most trenchant terms by their Lordships of the Privy Council in a very recent case Secretary of State for India v. Bai Rajbai (1995) L.R. 42

IndAp 229 : 29 M.L.J. 242. They say : - ""Before dealing with the action which the Government of Bombay took in reference to this village of

Charodi on receipt of these reports it is essential to consider what was the precise relation in which the Kasbatis stood to the Bombay Government

the moment the cession of their territory took effect, and what were the legal rights enforceable in the tribunals of their new Sovereign, of which

they were thereafter possessed. The relation in which they stood to their native Sovereigns before this cession, and the legal rights they enjoyed

under them, are save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, of any, which they

might have enjoyed under the old. The only legal enforceable rights they could have as against their new Sovereign were those, and only those,

which that new Sovereign, by agreement expressed or implied or by legislation, chose to confer upon them. Of course this implied agreement might

be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights

and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extent the

new Sovereign has recognised these ante-cession rights of the Kasbatis and has elected or agreed to be bound by them, that the consideration of

the existence, nature, or extent of these rights become relevant subjects for enquiry in this ease.

Whatever view is taken of the origin of mirasi tenure (which is entirely a matter of speculation) and the privileges it confers, there are

undoubtedly certain incidents, which have been claimed as attaching to it from ancient times, and have to some extent been recognised. They are:

(a) The right to hold his maniam lands free of all payment of land revenue.

(b) The right to hold his patta lands in absolute ownership subject to the payment of such assessment as the State may impose.

(c) A preferential right to cultivation of all lands, which have been brought under, but have gone out of, cultivation (seykal karambu).

(d) The right to certain fees (tunduvaram) on lands granted for cultivation to non-mirasi cultivators (payakaris).

(e) Certain rights over immemorial waste.

(f) Certain rights over lands set apart for various communal or public purposes; e.g., tanks, village site, threshing floor etc.

Now all these rights may have a common origin in the status of the mirasidar : but none of them necessarily involves another, and, as will be

seen, they vary with the description of land to which they relate. Bach, as it seems to me, requires to be separately established : and recognition by

the State, whether express or implied, is an ''indispensable condition for the enforcement of each. It may be argued that the existence or recognition

of one renders probable the existence or recognition of another : and this indirect evidence will be dealt with later. But it seems to me more

convenient to start with direct evidence regarding the peculiar incident with which we are concerned - that is, the rights of the mirasidar as such

over the village nattam.

""nattam"" is a particular variety of poramboke land. Poramboke is defined in Wilson''s Glossary thus : ""Such portions of an estate or village

lands liable to revenue as do not admit of cultivation, and are therefore exempt from the assessment, as sterile or waste land, rock, water,

wilderness, site of dwellings and the like: also common land near a town : any place situated out of or beyond certain limits.

Nattam is the ""site of dwellings"" above referred to. It does not admit of cultivation and is exempt from assessment, not because it is unfit by

nature for the plough (it is frequently cultivated licitly and illicitly), but because it is required and set apart for an indispensable purpose - the building

of houses for the various members of the village community. Wherever the ownership or quasi-ownership lies, this overriding limitation is respected

by both parties. The mirasidars do not claim to be entitled to bring nattam under cultivation except in the limited and special way incidental to the

backyard of a house : and Government do not claim the right of granting it on patta for cultivation purposes subject to the payment of assessment.

Such a course is in fact expressly forbidden in the Board''s Standing Orders.

In fact the dispute between Government and the mirasidars as regards nattam practically amounts to this : in whom rests the right and duty of

apportioning the unoccupied ""nattam"" so as to ensure its utilisation for the appointed purpose?

Now in deciding this question the plaintiffs, who are the parties seeking relief in this case, wish to override the general presumption of the

common law of India that the ownership of all unoccupied land vests in Government. If authority be needed in support of this presumption I may

cite Subbaraya v. Krishnappa ILR (1889) Mad. 422, The Secretary of State for India v. M. Krishnayya ILR (1905) Mad. 257 : 15 M.L.J. 147,

Madathapu Ramayya v. The Secretary of Stale for India ILR (1904) Mad. 386, Bhaskarappa v. The Collector of North Kanara ILR (1879) B.

452 et seq). In Madathapu Ramayya v. The Secretary of State for India ILR (1905) Mad. 257, Bashyam Aiyangar, J. says at page 393 that

presumably the freehold in the soil of grama-nattam or village site is in Government. He was of course speaking of an ordinary ryotwari village

where no mirasi claims can be set up, but there is no doubt that the presumption of Government ownership applies to nattam lands in ordinary

ryotwari villages the ownership being subject to the important limitation above referred to. Even in this latter respect it is not denied that where the

nattam in an ordinary ryotwari village is in excess of what is reasonably required, Government may transfer a portion to ""ayan"" (assessed) and grant

it on darkhast. I mention this specific reference to nattam in view of the possible suggestion that the presumption is inapplicable to poramboke

lands.

The right of Government to allot nattam in ordinary villages has in fact never to my knowledge been questioned : and an elaborate series of

rules has been framed for the guidance of Revenue officers. (Vide Board''s Standing Orders 21).

The presumption1 has now been embodied in Section 2 of Act III of 1905, and it is very remarkable that there is no mention of mirasidar

among the numerous classes, whose rights are specifically excepted. There is no reason to suppose that the act was intended to put an end to any

existing right and the mirasidar might, probably shelter himself behind the clause ""all customary rights legally subsisting."" But the section is important

both as embodying the presumption in an enactment, and as indicating that in 1905 at any rate the legislature treated the peculiar rights claimed by

mirasidars as on a different footing from those of Jenmis and wargdars who are both recognised by name. The mirasidar has to show that his right

is a ""customary right legally subsisting.

This presumably involves proof of recognition by the British Government, which, as already indicated, is necessary to establish the right as

legally enforceable.

As regards the recognition of mirasi right by the State, the burden of proof undoubtedly rests on appellants : Vide Secretary of State for India

v. Bai Rajbai ILR (1915) B. 625 above quoted.

It may not be out of place to refer to one other point in this connection. If the mirasidars are legally entitled to the right they now claim, it is of

course the duty of the Courts to enforce it, irrespective of all considerations of expediency. But where it is clear that the right claimed tends to the

prejudice of a purpose to which the property is admittedly dedicated, I think it is the duty of a Court to require very strict proof before giving a

decree in its favour. In the present case, no one has ventured to suggest that the enforcement of the mirasidars'' claims over nattam would not be

gravely prejudicial to the village community generally.

Sankaran Nair, J., freely admits as much, and throws out a suggestion calculated to ameliorate the rigour of mirasi control. He says:

It may be that, though the mirasidars are the owners of the village waste lands and house sites, that claim is subject to the claim of the labourers

and the residents in the village, and that, if the mirasidar happens to turn out a labourer from his homestead they are bound to give him other house

sites.

But this liability is not recognised by the mirasidar : and is quite incompatible with his claim not only as put forward in the plaint, but as argued

in Court before us. The Board''s Standing Order provides a simple procadure whereby any resident of the village can obtain an allotment of vacant

nattam"" for the purpose of constructing a homestead. The recognition of the mirasidars'' claims would place the entire control of this unoccupied

nattam in the hands of a small corporation frequently consisting of two or three individuals (three in the present case) or even a single person. How

potent an instrument of oppression this may be needs no demonstration. It is so, even now, when the mirasidars'' claim has not been declared by

the Courts, and the labouring classes have he support of Government in resisting it. In the latest survey of the condition of the District, Mr. G.A.D.

Stuart writes : (Section 12)-

In Bkabhogum villages the mirasidars still use their claim to village site as a weapon against refractory sub-tenants of labourers, in the manner

described by Mr. Mullaly in 1890. A typical instance will be found in village No. 15, Kannivakam, in the Chingleput Taluk Here there are two

mirasidars, both absentees, living in Madras. The wet lands are poor and are assessed at Rs. 2 and Rs. 2-8-0, but the resident sub-tenants have to

pay Rs. 12 an acre rent to mirasidars. Their holdings are altered as often as possible so that they have lost all occupancy right. Their houses are

mostly, built on a piece of patta land and they have to pay rent to mirasidar for each house site. There is plenty of vacant land on the poramboke

village site, but the mirasi-dars have ""forbidden"" the sub-tenants to build their houses there. I explained to the sub-tenants that the mirasidars have

no right to forbid them to use the village site, but they explained that, if they ventured to disobey, their cattle would be impounded. This is a form of

oppression which is also mentioned by Mr. Mullaly. In this village all the waste land on which the cattle graze has been taken up and now stands in

the patta of the Mirasidar, so that the sub-tenant8 are entirely in the hands of the mirasidars in this respect.

The recognition of this claim by the Courts would enable mirasidars, wherever they chose to unite, to practically banish from the village any

person, who incurred their displeasure and would go far to reduce the labouring classes to the state of serfdom, from which they have been slowly

emerging.

I proceed to consider the evidence directly bearing on the existence and nature the mirasidars'' rights over ""nattam"" and the recognition of these

rights by Government. Existence and recognition are, of course, different things; but the evidence regarding both has to be dealt with together

inasmuch as appellants depend largely on alleged admissions by Government to establish the existence of the rights they claim.

I may say at once that up to a comparatively late period (about 1870) there is very little indeed either in the Exhibits in the case, or in the

Mirasi papers to which we have been referred, or in the decisions of the Courts dealing with the point.

The minds of Mr. Place, Mr. Ellis, Sheristadar Sankarayya and Sir Thomas Munro were all concentrated on something entirely different - The

question of the rights of the mirasidars in cultivable land. In the last years of the 18th and the first quarter of the 19th century this was a burning

question. A reference to the minutes of consultation dated the 8th January 1796 shows that at that time, Government took a very extreme view of

the relative position of themselves and the ryots (including mirasidars). They say ""Though the inhabitants of each village may, from generation to

generation, have cultivated the lands adjoining to it, yet the original compact is not changed by residence : they can establish no more ""rights of

inheritance in respect to the soils,"" than tenantry upon an estate in England can establish a right to the land by hereditary residence, although the

liberal custom of English landlords has generally given a preference to the ancient inhabitants, where a reasonable rent has been acquiesced in.

The mirasi inhabitants then bear the same relation as the other inhabitants to Government; and both of them establish by hereditary residence in a

village not a right but a preference to the cultivation of the soils, the proprietary right to which is exclusively vested in the Circar.

These were the views that Mr. Place, and to some extent Messrs. Ellis and Sankarayya were combating in the memoranda, and reports on

which reliance is placed by Mr. Srinivasa Aiyangar : and although it is needless to say that Sir Thomas Munro in 1824 took a much more liberal

and enlightened view of the matter yet he was primarily concerned with the difficulties which the advocates of the mirasidars threw in the way of the

introduction of the ryotwari system as regards cultivable land. In almost every passage in which these writers refer to waste, they clearly have in

mind either land which has been cultivated and abandoned, (seykal karambu) or land which though never cultivated is fit for cultivation or could

readily be made so, and to the cultivation of which by some person or other there is no objection on public or communal grounds (annadhi

karambu). It has been argued before us that waste lands include all poramboke lands : and no doubt if waste is interpreted in the widest sense as

meaning simply, uncultivated, this is so. But in practice ""tarisu"" (waste) and poramboke are understood to be two different things - as authority for

which statement I need go no further, than the opening sentences of the referring judgment of Sankaran Nair, J., in this very case. I may however

also refer to the foot-note on p. 185 of the Mirasi Papers which gives an exhaustive classification of all sorts of land according to the ""Tirapudi

accounts, which were maintained in those early days of the British Baj, and to the very clear and detailed explanation furnished in Sections 69 - 71

of the Minutes of the Board of Bevenue dated the 5th January 1818 (vide pp. 373 - 4 of the Mirasi Papers.

Wherever either Place, Ellis, Sankarayya, Sir Thomas Munro, the Board of Bevenue or Government use the term waste as including

poramboke, they are careful to make their meaning clear : e.g., the answers of Ellis and Sankarayya to the second question propounded by the

Board (pp. 184 and 219, Mirasi Papers). Mr. Ellis in a single passage (p. 357 id.) uses the word ""tarisu"" in a special and peculiar sense indicating

land which is neither annadhi karambu or seykal karambu, but ""entirely barren and uncultivable."" This ""tarisu"" he gays should like poramboke be

deducted totally from the assessable lands of the village. He obviously has in mind such lands as are from their very nature hopeless for cultivation

purposes - e.g., stretches of bare rock, which are now usually classed as ""Parai poramboke."" Having cleared such cases out of his way, he

proceeds to formulate his proposal regarding the question then at issue - i.e., the treatment of cultivable lands.

I shall deal seriatim with the rare instances in which these early authorities refer to mirasi rights as applicable to poramboke land, including

nattam.

Mr. Plate''s final report, which has been much quoted by appellants leaves the question entirely untouched. His conclusions in Section 703 and

704 (pp. 68 - 9, Mirasi Papers) are on the face of it concerned solely with cultivable land capable of paying revenue to the State.

Messrs. Ellis and Sankarayya however writing in and confronted with the question ""Does mirasi right extend to waste land?"" do refer to

poramboke lands.

Mr. Ellis says (vide pp. 184 - 5, Mirasi Papers) ""in the Terapadi accounts the lands are distributed according to their several (23) descriptions,

either waste or cultivated, and the Mirasidars must enjoy them as thus entered; on the Nattam they must build their houses and nowhere else, they

cannot cultivate or appropriate it to any other purpose; in the poramboke they have no right to fill up tanks, stop water courses or obstruct roads;

and so in other (24) descriptions of land, Mirasi right is confined to the use of these as they exist. No alteration can be made with respect to them

by the Mirasidars; I mean that they have no inherent right to do so, but with the consent of the Sircar any beneficial change in the appropriation of

lands may take place, and a correspondent alteration must be made in theTerapadi accounts - thus, if part of the Annadhi karambu lands be

reclaimed, or a road in the Poramboke be stopped up and cultivated, the extent must be transferred from this head to that of Varapet.

Seems to me to simply recognise the mirasidars'' right of enjoyment of (e.g.) nattam for building purposes. It is obviously incompatible with any

claim of full ownership; and I do not find anything to support the idea that their right of enjoyment extends to the exclusion of non-mirasidars from

nattam which mirasidars do not require for their own personal use.

Sberistadar Sankarayya''s answer to the same question is printed at page 219. He lumps all porambokes (including nattam) in with ""tarisu

lands and says they are enjoyed either jointly or severally by the mirasidars. Appellants are entitled, I think, to quote this as an authority in support

of their claim. The Sheristadar goes further than any one else in his advocacy of mirasi right; but I am not satisfied that we should be justified in

treating him as an authority of the first rank : and he does not seem to have been so regarded by his superiors at the time with the exception of Mr.

Ellis himself.

How far the Board of Beverme were inclined to admit the mirasi-dars'' rights in nattam ids clear from Section 70 of their Minutes dafed the 5th

January 1818. (Vide page 374, Mirasi Papers).

The poramboke, or land incapable of cultivation, consists of rocks, public roads, the beds of rivers, tanks, and water - courses, the public ground

in which the bodies of the dead are burnt or interred, the paracheri or suburbs of the village, occupied by the huts of Pariah slaves and other

outcastes, the lands on which the different village temples stand, and the site of the village itself, called in Tamil the Nattam. It is in this last place

that the houses of the landlord Meerassidars are invariably to be found; for hero, and nowhere else, are they permitted to build their houses.

Various other pure tribes, such as Brahmins, weavers, merchants and others, are admitted to dwell in this place, and all therefore who reside in it

are not Meerassidars; but all the Meerassidars have houses, or at least sites for their houses, in the nattam. Indeed, their title to erect their dwellings

on that particular spot, and their right to control the affairs of the village pagoda, and to appropriate the produce of quarries, mines or fisheries are

the chief privileges they possess in the poramboke, which, as here described, being incapable of being cultivated, is not liable to any tax.

The right now claimed certainly cannot be read into the privileges herein enumerated. They are stated to have a right of control over the affairs

of the village pagoda, but not over the nattam. The latter is expressly stated not to be in their exclusive occupation. They are stated to have a right

to erect their dwellings on that particular spot, to which might fairly be added as an inferential corollary ""in preference to other people;"" but there is

nothing tosuggest a right to exclude others from portions of the nattam not required for their own use.

These are the views of the Board of Revenue and I can find nothing to indicate that Government, still less the Directors, ever troubled their

heads about the matter. There is a single passage in the Minutes of Consultation, dated the 11th February 1856 (page 534, Mirasi Papers) in

which Government remarks that Mr. Ellis shows that ""the mirasi interest in land of different descriptions varies much - the highest degree of it being

found in the case of the Varapat and cultivable waste the lowest in the poramboke,"" I shall show later the utmost limit claimed for mirasi rights in

cultivable waste do not extend to the policy of the dog in the manger which it is now sought to put in force as regards ""nattam.

Sir Thomas Munro in his famous Minute of 1824, of course, took a very strong view against the mirasi claims in cultivable waste : but he does

not touch on the subject of the mirasidars'' interests in nattam though it is not difficult to see what his views would have been, had he bad occasion

to express them.

In the whole of these official reports, minutes and proceedings up to 1870 on the mirasi question, I can find nothing amounting to a recognition

on the part of Government of any title in the mirasidars to monopoly or exclusive control of the nattam. The views expressed on other mirasi

incidents, which I shall come to later, certainly incline one to the opinion that had the claim been brought to their notice, they would not have

recognised it. The most that can possibly be said is that there is no record of any repudiation of it; and whether this amounts to much or little

depends largely on the practice actually obtaining in the villages. This brings us to the papers connected with the order of Government, dated 16-

12-1872 at which time the question first really came up for consideration. I shall return later to a few isolated instances in which specific disputes as

to nattam had come before the Courts, the Board or Government previously. They do not seem to me very helpful.

The order of Government No. 1684, dated 16-12-1872 has been strongly relied on by appellants, and is undoubtedly a piece of evidence

entitled to very serious consideration. In the course of it, the Government remark ""In purely mirasi villages, where the entire area belongs to the

mirasidars, the Gramanattam no doubt appertains to them equally with the other porambokes;"" and the Board of Revenue is instructed to exempt

Zemindari and mirasi villages and villages which are private property from the rules they were about to formulate regulating the grant of nattam land

for house site. An excepting clause was actually introduced accordingly in the Board''s Standing Order and was not removed till 14 years later.

These proceedings, according to appellants, constituted a distinct recognition by Government of the right for which they are now contending, and

are, as their learned Vakil would put it, conclusive of the case.

A careful examination of the connected papers appears to me to considerably reduce the importance to be attached to this alleged recognition.

It appears that in 1870 the question of the practice obtaining regarding the disposal of nattam land by Revenue Officers was brought to the notice

of the Board of Revenue on a reference from the; Coimbatore District. Reports were called for from all Collectors and these are summarised in the

Board''s Proceedings. For our purpose it is most important to note that it appears that in Chingleput nattam land was granted to all applicants on a

fixed scale. This scale doubtless refers to the extent allotted, and strongly suggests that in this respect regard was paid to whether the applicant was

a pattadar or not, and to the assessment paid by him. This distinction is embodied in the existing rules (vide Board''s Standing Order 21), and has

probably always been observed, wherever rules have been formulated. But there is no men