Subramania Pillai and Another vs The Secretary of State for India in Council

1 The plaintiffs in the suit opt of which these appeals arise are the trustses of the Kuthalanathaswami temple of Courtallam, the defendant being the

Secrtary of State for India. The plaintiffs sue to establish their title to about three acres of land lying immediately to the south of what are admittedly

the temple premises, demarcated as S. No. 482 of Courtallum village. The land sued for is valueless for cultivation purposes but its importance lies

in the fact that it contains the famous Courtallum water-fall and bathing pool, and sundry mantapams and sacred sites adjacent thereto. The plaintiff

claim the site in virtue of immemorial possession as part of the temple precincts and also by adverse possession for more than the statutory period.

The defendant denies that there has been any exclusive or adverse possession of any portion of the disputed site on the part of the plaintiffs, and

further pleads that by virtue of its inclusion in block No. Ill of the Tenkasi reserved forest in 1883 all pre-existing rights which may have existed

have become extinguished.

The learned Subordinate Judge has found that only a portion of the disputed site falls within the reserved forest. The excluded portion contains

the bathing pool, the lower portion of the hill-side immediately above it and the various mantapams; and in his decree, he recgnizes the temple''s

title to the following:

A. The whole of the site below the pool including the Sandhyavandana Mantapam and the site of the Kasilingaswami shrine destroyed by flood in

1891 (Nos. 5 and 4 on the plan, Exhibit P.)

B. The bridge (No. 10).

C. The Tirthavari Mantapam and its verandahs on the eastern side (Nos. 6 and 7.)

D. The site of the foot of the water-fall.

E. The pool itself (No. 2).

F. The rock above the falls on which the Sivalingams are cut.

He also recognizes its right to carry on the customary puja at the falls and at the Tirthavari Mantapam and the necessary right of way from the

bridge to the foot of the falls and to the pool called Pongumakadul half way up the hill. The rest of the plaintiff''s claim is dismissed and the decree

further declares that the water-fall itself, the remainder of the hill-slopes, and the river bed belong to Government subject to the bathing rights of the

European community and high-caste public, conformably to the rights of the temple to carry on customary worship.

Against this decree both parties appeal.

It is convenient first to consider the question of the right of the parties without reference to the reservation under the Forest Act, and then to

determine the manner and extent to which they are affected by the Act. This is also the procedure followed by the learned Subordinate Judge.

In connection with the first question, some preliminary remarks are necessary. The learned vakil for the plaintiffs has argued with considerable

force that his client''s claim should be considered not so much as an attempt to prove a title as against Government by 60 years'' adverse

possession, as to establish exclusive possession as owner for a sufficiently long period to give rise to the presumption of a ""lost grant."" As far as the

decision of this case goes, however, this is distinction without a difference. The Subordinate Judge has not rejected any portion of the plaintiffs''

claim on the ground that the period of their proved enjoyment was deficient nor do we see any reason to do so. The vital point is as to the nature

of the enjoyment. Whether enjoy meat is set up as the basis of a title by prescription or as evidence on which a lost grant should be presumed, the

same characteristics will be necessary. The plaintiffs relied upon the decisions of the House of Lords in Lord Advocate v. Lord Blantyre (1879) 4

A.C. 770, and Lord Advocate v. Young (1887) 12 A.C. 544, but we do not think the evidence in the present case brings it within the principle of

these decisions.

In the second place, it must be observed that it is impossible to treat the area covered by the plaint claim as a single unit. The plaintiffs'' claim

must be separately considered with reference to each portion of the property sued for. As explained in Sivasubramanya v. Secretary of State for

India ILR (1885) M. 285, acts done on parts of a tract of land will only be evidence of possession of the whole where the said tract of land

possesses a defined boundary. That is not the case here, unless we accept the plaintiffs'' theory of the position of the reserved forest boundary, in

which case the plaint land might be regarded as enclosed between the revenue survey line on the north and the reserved forest boundary on the

south. But for reasons which will'' appear later, we find the reserved forest boundary to be conterminous with the revenue survey line in the locality

in question and in consequence it is impossible to treat the plaint land as possessed of a defined boundary to the south or to deal with it as a unit.

Before dealing with the evidence of enjoyment of the different items of the suit property, reference may be made to such old official records as

are forthcoming. These are extremely meagre. The plaintiffs produce an extract from a Hinduvi Inam Chitta prepared in 1844 (Exhibit C); while on

the defendant''s side we have an extract from the Paimash Olugu Chitta (Exhibit X), 8 years earlier in date, and the revenue survey plan and

settlement register (Exhibts VIII and VIII a) prepared in 1863 and 1874 respectively. The boundaries given in Exhibits C and X are, as might be

expected, very loosely expressed. Exhibit C describes the temple boundaries thus : ""west of the Adivettipari bridge north of Arovi Kari Malai, east

of Sitharuvi Malai and south of Kuthala Nangai Amman temple."" Both the northern and easte (sic) boundaries, it will be noted, are points and not

lines. Accepting the southern boundary (Aruvi Karai Malai) literally, it would give the temple the pool, bridge and mantapams (items Nos. 2, 10, 4,

5 and 6 as marked in Exhibit P) with the intermediate spaces, but not the slopes of the hill, or the Ponguma Kadal or the land lying above the head

of the waterfall. Exhibit X gives these boundaries : ""north of the river, east of the western slope, south of the Padinettampadi tower gate and west

of the river."" These would give the temple the Sandhyavandana Mantapam (No. 5) and the ruined site (No. 4) with the surrounding rock, and

absolutely nothing else.

These old records are not devoid of value, but it is impossible to place much reliance on them in determining boundaries to a matter of a few

yards. The remarks of the Subordinate Judge in this connection in paragraph 12 of his judgment possess considerable force. No attempt appears

to have been made at the time of the preparation of these accounts to check the boundaries stated by the village officials; and when a proper

survey was effected in 1863, very considerable modifications were made. From Exhibits VIII and VIII a it appears that the bulk of the temple

premises (27.67 acres) were surveyed as S. No. 482 (pagoda poramboke). A smaller plot (2.02 acres) was marked as S. No. 483 (flower

garden poramboke) and a small tope (1.48 acre) as S. No. 481 assessed Government dry land. In so doing the demarcation stones, while

extending the eastern boundary of S. No. 482 considerably beyond the Adivettiparai brige, were so fixed as to exclude the whole of the site now

in dispute; and, so far as appears, no objection whatever was raised to this demarcation. This a point of the utmost importance.

If the plaintiffs then set up title to the site in dispute, it is impossible to understand why no objection was raised to a demarcation which visibly

excluded the site from the temple premises.

We shall now proceed to deal with the evidence of possession by the plaintiffs of the various items of the suit property.

(A) The Subordinate Judge finds that all the disputed sites lying to the west of the river bed (Nos. 4 and 5) belong to the temple, which acquired a

right of absolute ownership to them by immemorial user; and in this we have no hesitation in concurring. In fact the Government Pleader has

practically nothing to say against it. The evidence fully warrants the conclusion that the Sandyavandana Mantapam, with the court-yard in which it

stands, was originally constructed by the temple authorities, and that from time immemorial it has been used by them as part of the temple premises

for Brahmins to recite the Sandhyavandanam prayer after bathing. Item No. 4 was formerly occupied by the Kasilingaswami shrine which was an

appurtenance of the main temple and under control of the trustees. It existed from time immemorial till it was washed away with the idol in the great

flood of 1891. The materials of the shrine were subsequently used by the temple authorities for constructing a pavement on the open space

adjoining the Sandhyavandana Mantapam and for other purposes. This portion of the plaint property is clearly disunited by the river and the foot of

the hill, and the Subordinate Judge''s inclusion of the whole site west of the river bed in his award to the temple is justified.

(C) The case of the Tirthavari Mantapam (No. 6) is very similar to that of the Sandhyavandana Mantapam (No. 5). The only difference is that

there is the evidence of the Reverend Thomas Kimber to show that it was at one time used by European bathers as a dressing shed. This practice

was discontinued more than 30 years ago, when separate bathing sheds were constructed, and in our opinion must be regarded as having been

merely permissive. There is no reason to disturb the Subordinate Judges'' finding regarding this Mantapam.

(E) The next item for consideration is the pool itself (Item No. 2). This is situated at the very foot of the falls, and has been hollowed out of the

natural rocky bed of the river partly by the action of the water, and partly by blasting {vide Exhibit XVIII e). Forming, as it does, a portion of the

bed of the river, particularly strong evidence should be required to establish either a grant by the Zamindar, or the acquisition of a title on the part

of the temple authorities by adverse possession; and such evidence is, in our opinion, not forthcoming. Great reliance is placed by the plaintiffs on

certain extracts from old temple accounts, produced to show that the temple authorities were in the habit of annually leasing out the right to collect

finds in the pool,"" that is, any articles of value which may have been dropped or thrown into it by the numerous bathers. The Subordinate Judge

has accepted these accounts (Exhibit A series) as genuine, in which he is no doubt correct; but it is extremely difficult to say what the entries refer

to. They relate to 5 faslis, between 1809 and 1840, and merely record leases of the ""pool"" or the ""aruvi (falls) pool"" for various sums. There

appears to be no evidence to explain what they mean, or whether the explanation offered to the Subordinate Judge is correct. So far as appears no

such leases of ""finds"" have been held for the last 60 years. Apart from these accounts, there is absolutely nothing to support the temple''s claim

beyond the fact that the idol has been daily taken to the pool and solemnly bathed there; but it is impossible to treat this as evidence of possession,

or of any form of title. Against it we have the admitted fact that as far back as can be traced Europeans and also respectable Mahomedans have

been in the habit of bathing in the pool while low-caste Hindus have been excluded by magisterial orders of the District Magistrate (Exhibits O and

O 1) issued at the request of the temple authorities. The European residents of the District, as well as visitors, have not only bathed in the pool, but

have annually formed a bathing committee and have collected and expended money on cleaning, deepening, and improving the pool and in erecting

bathing sheds near it. Similar improvements, such as the erection of iron hand-rails, have been carried out by the temple; but it is as difficult to

reconcile the long acquiescence of the temple trustees in the above act with the present theory of a lost grant of the pool, as it is to treat their

possession as exclusive. It is in evidence that arrangements were made and adhered to in a friendly spirit for the convenience of all parties, the

Europeans having the exclusive use of the pool for two hours every morning, fixed so as not to clash with temple worship, while on specially sacred

days, they refrained from bathing at all. But such a sensible arrangement is no evidence of exclusive possession or recognition of title of either

party. Special reference may be made to one incident in 1873 evidenced by Exhibit XVIII. In that year, by the Collector''s orders, Rs. 100 were

spent out of the ""waterfall fund"" which was raised by subscription among bathers, in enlarging the bed of the pool by blasting during the dry season.

We think it may be safely held that the acquiescence of the temple trustees in such a proceeding shows that any enjoyment of the pool exercised by

them at the time was not exercised with any consciousness of ownership, or intention of asserting ownership. The issue of the orders above

referred to, Exhibits O and O 1, in no way supports the plaintiffs'' case. Such orders must have been issued in the interests of the public peace and

tranquility, rather than for the protection of proprietary claims, which could have been otherwise enforced. In fact, although the claims of different

classes to bathe in the pool appear to have given rise to friction on several occasions, we can find no record of any assertion of ownership on the

part of the temple trustees up to the time of institution of the present suit. We are of opinion that the plaintiffs'' claim to ownership of the pool has

not been established. A reference to Exhibit O 2 will indicate the spirit in which the aid of Government officers was invoked in the matter; the

petitions giving rise to that order having apparently emanated not from the temple trustees alone, but from them together with "" ther ryots"".

(D) The same decision must be arrived at in the case of what the Subordinate Judge describes as the site of the foot of the waterfall.

(F) The lower portion of the steep rocky side of the hill over which the water falls, has been decorated at some unknown time with ""Sivalingams

carved in relief, which are now deemed sacred, and are the object of worship by the votaries of the temple : but it is impossible to treat this by

itself as evidence of1 ownership on the part of the temple.

(B) There remains only the bridge which crosses the river, and forms the most convenient access to the falls. The present bridge was constructed in

1892, replacing a former structure which was partially destroyed in the same flood which washed away the Kaslingaswami and its shrine. Exhibit

G1 shows that it was constructed by the Local Fund Engineer under orders of the Shermadevi Taluq Board, which allotted Rs. 340 for the

purpose from its reserve fund. At the same time the temple authorities were asked ""to contribute a share if possible"" - a very natural course to

adopt considering how keenly interested the temple was in the speedy repair of the bridge. This request gave rise to an interesting correspondence

between the temple trustees and the Siva Temple Committee for the Tinnevelly District. (Vide Exhibit G and G 2). On receipt of copy of the Taluq

Board''s resolution, the trustees addressed Exhibit G to the Committee. In this they stated that, as the said bridge (meaning the former bridge) had

always been under the control of the temple and chiefly useful to the temple, they had submitted an estimate for reconstructing it from temple funds

(Exhibit F 2), but had not obtained sanction. Meantime as the Taluq Board had set the work in hand they recommended that the Taluq Board''s

request for a contribution should be complied with and one third of the cost allotted. The letter proceeds thus:

Further, as the said bridge has always been in the private control chiefly of the people and temple, there would be ground for the temple to have a

greater right than the one which it naturally has, if a third portion were paid....

The District Committee replied taking a much stronger line and enquired : ""While the bridge and those places belong absolutely to the temple

and while it is proper that that bridge should be constructed out of the temple funds, what was the reason for allowing it to be built from Local

Funds?"" To this, in Exhibit G 2, the trustees replied, as might be expected, acquiescing in the view of the District Committee; and it was then

resolved that ""the full amount should be paid."" This was on the 3rd July 1893. No further correspondence is exhibited, from which it may be fairly

inferred either that no further steps were taken to pay the amount, or that the offer was rejected by the Taluq Board. It seems quite certain that no

actual payment was made from temple funds; and as it is presumably in the power of the Temple Committee to produce the subsequent

correspondence, if there were any, it may be assumed that their failure to do so is due to the fact that it would not support their case. Altogether

the correspondence and the course of events, while indicative of a desire on the part of both the trustees and Committee to assert ownership to the

bridge, in no way tends to support their claim; while the artless admissions of the trustees in Exhibit G above quoted go strongly against it.

As to the repair and maintenance of the previous bridge or bridges, the evidence is conflicting. Probably both the temple and the Waterfall

Committee incurred expenditure on the bridge from time to time. Exhibit B series shows that on several occasions between 1834 and 1840, when

the temple was under the management of the revenue authorities, the bridge was repaired at the cost of temple funds; and it seems probable that in

later times also the temple, being keenly interested, contributed to similar works. On the other hand Exhibits XVIII and XVIII a show clearly that

repairs to the bridge were conducted from the Waterfall Fund under the Collector''s orders in 1879 and 1873, Viewing the whole of the evidence

we have no hesitation in finding that the plaintiffs'' claim to the present bridge, which was admittedly constructed from Local Funds, has not been

established.

The plaintiffs'' claim of ownership to the remaining portions to the plaint property was rejected by the Subordinate Judge and. in our opinion,

quite rightly. It rests on nothing better than a certain amount of oral evidence to the effect that the temple servants and the pilgrims used to collect

firewood on the slopes of the hills. This is very unsatisfactory; and Exhibit XVII shows that in 1897 the temple trustees petitioned the Collector

simply to allow them a right of way up the hill through this very laud, without any suggestion of ownership.

From the above it will be seen that in our opinion, apart from all question of forest reservation, the plaintiffs have established their ownership

only of the portion of the site west of the river bed (A), and the Tirthavari Mantapam and its verandahs (C) and not to the remainder of the plaint

property. The right of carrying on daily puja at the falls and Tirthavari Mantapam and the right of way from the bridge to the falls and the Ponguma

Kadal are established and were rightly allowed in the decree.

We have now to dertermine to what extent, if any, the above rights have been affected by the process of forest reservation.

According to defendant, the whole of the disputed site is included in the reserved forest, Tenkasi Block No. III, which was originally ordered

to be reserved (prior to the introduction of the Forest Act) by Government Order No. 257, Reveuue, dated the 11th February 1881, and notified

u/s 25 of the Forest Act by Government Order No. 1611, Revenue, (Forest No. 142), dated the 20th December 1883. These orders are Exhibits

IV and V; and it is argued that the effect of the latter was finally to extinguish all pre-existing rights in the reserved forest, which had not been

admitted by Government prior to reservation. Admittedly no part of the present (suit) claim had been admitted, or even set up at the time of

reservation.

The plaintiffs contend (a) that the plaint property falls outside the boundaries of the reserved forest; (b) that even if it be included therein, the

notification u/s 25 has no effect on pre-existing rights.

The block of reserved forest in which the plaint land is said to fall was originally selected by a Forest Committee appointed by Government :

their report, dated the 28th September 1880, forms part of Exhibit II. Their proposals were supported by the Board of Revenue and eventually

accepted by Government in an order dated the 11th February 188I marked as Exhibit IV. The order runs : ""Their selection is accordingly

approved, and the general limits of the reserved forest being thus approved, demarcation and survey will follow in due course under the instructions

conveyed in paragraph 17 of Government Order No. 1612 dated the 2nd August 1879."" Neither of the above papers contains in itself any

detailed statement of the boundary of the proposed reserve in the locality with which we are concerned. In the absence of demarcation it would be

extremely difficult to give any verbal description, and the Forest Committee make no attempt to do so. A map, Exhibit II a, was submitted with the

report on which the boundaries of the proposed reserves are marked. As the Committee says : ""The separate pieces are clearly shown on the

map, although it is not easy to specify their boundaries clearly and briefly in writing."" It is therefore to the map, Exhibit II a, that we must turn

primarily for information on this point, although the report contains certain explanatory remarks of considerable importance.

Subsequent to the issue of Exhibit IV, demarcation of the reserve boundaries by cairns was completed and in Exhibit VII, we have a Gazette

Notification by the District Forest Officer which, quoting Exhibit IV as authority, prohibits free grazing outside a line of specified cairns, which

obviously forms the boundary of the recently constituted reserve. The final notification u/s 25 of the Forest Act is contained in Exhibit VI, and

describes the boundary as ""the line of cairns marked by the Forest Committee in 1880 running near the base of the hills up to the Five-falls river.

These cairns are undoubtedly those referred to in Exhibit VII.

Now the list of cairns in Exhibit VII runs thus:

* * * *

Vayathu Parai.

Pallar Madam boundary stone.

Tannirkal Madai, Chittaruvikal.

Pirinthu parthan Parai.

* * * *

These are the cairns in the neighbourhood of the disputed land. There is no dispute as to the position of Nos. 9 and 12 : but the parties profess

to locate Nos. 10 and 11, which have disappeared or been destroyed, in different spots; the difference and its effect being clearly shown in a plan

marked in the present suit as Exhibit T.

The defendant locates both cairns on the Revenue Survey boundary line, and contends that between the two - a distance of about a mile - the

reserve boundary is conterminous with the revenue survey line. This includes the whole of the plaint site in the reserve. The plaintiffs, on the other

hand, seek to locate the Pallar Madam cairn (No. 10) at the top of the hill about two furlongs south of the revenue survey line, while the Tannirkal

Madai cairn (No. 11) is placed about a mile above the head of the falls to the south. The result as shown in Exhibit T (the plaintiffs'' own plan) is to

form two long narrow projections from the reserve, which, it is difficult to believe, any forest department would have approved of. If it had been

determined to exclude so much of the northern slope of the hills as this line would indicate, convenience would obviously suggest the excision of

these salient angles as is commonly done in similar cases to save unprofitable trouble and expense in delimitation.

As stated already there was originally a contest as to the site of both cairns (Nos. 10 and 11) but it is now narrowed down to that of No. 11.

The Subordinate Judge found the Pallar Madam cairn (No. 10) to be on the site indicated by the defendants and the learned vakil for the plaintiffs

states that he does not dispute this. Everything therefore turns on the correct location of cairn No. 11.

As shown in Exhibit T, it makes very little immediate difference at which spot cairn No. 10 is held to have stood.

It is extremely difficult, if not impossible, to reconcile different portions of the Subordinate Judge''s judgment dealing with the position of the

reserve boundary line. In paragraph 46, he appears to arrive at the definite conclusion that, the Tannirkal Madai cairn originally stood at the place

shown by the plaintiffs, that is, at the southern end of the Spice Garden The effect of this would be, even placing the Pallar Madam cairn on the

revenue survey line, to exclude practically the whole of the plaint area from the reserve. But further on in his judgment, for quite independent

reasons, and apparently without any reference to the finding in paragraph 46, he arrives at the conclusion (paragraph 53) ""that the plain portion of

the disputed sites including the foot of the falls is not included in the forest reserve, but that the portion of the plaint site, which consists of the slope

of the hill and the stream of waterfall situated above the foot of the hill are (sic) included in the forest reserve."" It is in accordance with this view that

he has framed the decretal portion of his judgment; but it is a view utterly at variance with the evidence on both sides as to the correct location of

the reserve boundary and is one which it is, in our opinion, impossible to uphold. There is not a particle of evidence to indicate that the line of the

reserve boundary, as demarcated, ever followed the line indicated by the Subordinate Judge.

The Subordinate Judge''s decision in the earlier part of his judgment regarding the location of cairn No. ix is based, mainly, on a comparison of

the oral evidence on the point, and consideration of what he deems to be an inconsistency necessarily following on its localisation at the

defendant''s spot. As regards the former it is not necessary to say much. Oral evidence on such a point must be accepted with caution. If the case

had to proceed on oral evidence alone, it might be difficult to say the Subordinate Judge''s finding was wrong, though he certainly has unduly

disparaged the defendant''s witnesses and particularly defendant''s witness No. 5, a retired ranger, who stated in evidence that he actually raised

the disputed cairn in the course of demarcating the boundary. We certainly cannot follow the Subordinate Judge when he says that the evidence of

this man is not very definite or reliable. It is as definite as it could possibly be, and it is hard to see why the evidence of such an officer, who, having

retired, has nothing to gain or lose, should be viewed with distrust.

The supposed inconsistency referred to above lies in the fact that if a straight line be drawn between cairns Nos. 10 and 11, as located by the

defendant, a certain portion of S. No. 482 and other private land will be included within the reserve, which admittedly was never intended. The

answer of the Government Pleader to this is that both cairns being situated on the revenue survey line, the forest boundary between the two was

intended to follow the said revenue survey line. There is nothing improbable or unreasonable in this. The learned vakil for the plaintiffs argues that if

it were so intended, it would have been definitely stated in Exhibit VII, as it is, in describing the boundary west of the Five-falls river. The argument

is a legitimate one, but it overlooks the fact that the boundary from the Five-falls river to the Travancore frontier is very much longer than the small

stretch now under consideration''; while, as appears from Exhibit I, there is another short stretch of about equal length midway between the

disputed site and the Five-falls, in which the survey line appears again to have been resorted to without specific mention in Exhibit VI.

A careful consideration of the documentary evidence leads irresistibly to the conclusion that the location of the Tannirkal Madai cairn and the

boundary is as indicated by the defendant. That it was not where the plaintiffs put it may be inferred from one circumstance alone. If it were, the

Spice Garden would be outside the reserve. Now if anything is certain in connection with the case, it is that the Spice Garden lies inside the

reserve. It is distinctly so stated in Exhibits II and VI and special provision is mad e for a right of way to reach it. In fact the plaintiffs'' vakil can put

forwaard no better reply than the suggestion that some other Spice Garden was referred to: suggestion which there is not a particle of evidence to

support, which is now put forward for the first time and which may be dismissed without hesitation. If the plaintiffs'' location of cairn No. 11 throws

the Spice Garden out of the Reserve, as it does, it is safe to say that, whatever may be right, that location is wrong. This argument indeed is used

by the Subordinate Judge to support his reasoning in the latter part of his Judgment (vide paragraph 51) though, curiously enough, he seems to

have altogether lost sight of it in coming to the decision recorded in paragraph 46.

The defendant''s theory, on the other hand, receives strong support from all the record connected with the reservation and subsequent thereto.

The Forest Committee in their report, Exhibit II, distinctly state in reference to the disputed locality that they propose to include ""the whole valley

down to the boundary of cultivation in the plain,"" within the proposed reserve, proceeding to justify their action on ""purely aesthetic"" as well as

utilitarian grounds. The term ""boundary of cultivation"" can only mean the revenue survey line - the extreme limit to which the Revenue Survey

Department, whose duty it was to survey cultivable lands, extended their operations. Exhibit Ha is a small scale map and for that reason not very

safe to rely on where a very small area is concerned; but it certainly seems to show the proposed reserve boundary at this part as conterminous

with what it calls the ""surveyed limit of cultivation,"" that is, the revenue survey line. No alternative meaning for the phrase ""boundary of cultivation

has been even suggested on the plaintiffs'' side. We think it is abundantly clear that, in this locality, the Forest Committee determined to include all

available land as far down as they could go : and there is nothing to indicate that the Board of Revenue or Government dissented from their

proposal or that any subsequent modification was made. Exhibit I is another map of the same reserve prepared in 1891 by the Government of

India Survey Party, the carefulness and excellence of whose work is beyond question. In surveying the boundary of an existing reserve, reference

must have been made to the cairns and boundary marks found on the ground. This map, which is on a scale of 4 inches to the mile, entirely

supports the defendant''s case and shows the reserve boundary as identical with the boundary of the revenue village of Courtallum in the locality in

question. A comparison of Exhibit I and Exhibit VIII, the Revenue Survey map of Courtallum, shows that they entirely tally.

Practically the only point that the plaintiffs have been able to make against this evidence is in connection with Exhibit II a, and almost certainly

arises from carelessness on the part of the draftsman. It does not appear to have been taken in the lower court. This map, as already explained, is

on a very small scale (something like 4 miles to the inch) and the cairns are roughly indicated by numbered circles. These are not placed on the

boundary at all but adjacent to it. The plaintiffs point out that the circle bearing the number 11, which ought to correspond with No. 11 in Exhibit

VII, is placed, not on the revenue survey line but very far south of it - far, indeed, south-west of the position indicated by the plaintiffs themselves.

The position thus shown is as incompatible with the plaintiffs'' line as with defendant''s; and the numbering of the circles is equally inconsistent with

the green line which marks the reserve boundary on the plan. Close to the spot where the Tannikal Madai should stand, according to the

defendant''s theory, is a similar circle with no number at all. From a careful consideration of Exhibit II a, we think there cannot be the slightest

doubt that the inconsistency arises solely from wrong numbering of the circles, due to the carelessness of the draftsman who prepared Exhibit II a.

It may be added that the erection of a fence east of the river near the Falls in 1896, and the issue of the order Exhibit W in 1898 are

unmistakeable assertions of the claim now put forward by Government, made long prior to suit and to the full knowledge of the plaintiffs. The fence

certainly shuts the plaintiffs out from a portion of the area now claimed by them in propriettary right : but they appear to have been perfectly

content at being allowed a right of way to the upper Falls and to have claimed nothing more. (Vide Exhibit XVII and the evidence of plaintiffs''

witnesses Nos. 12 and 35).

For the above reasons we are satisfied that the boundary of the reserved forest runs as stated by the defendant, and that the whole of the

disputed site is included within, it.

It remains to determine the effect of the reservation on the right which the plaintiffs possessed in the property in dispute at the time when the

reservation was notified u/s 25 of the Act.

The learned Vakil for the plaintiffs argues that extinction of private rights in a reserved forest is only effected by the operation of Section 17 of

the Forest Act; which in its turn only takes effect when the procedure laid down in Section 6 and following sections for inviting and enquiring into

claims has been followed. We cannot accept this contention. Section 25 of the Act is, no doubt, a very drastic provision of law : but its intention, in

our opinion, is to place all forests reserved by executive order prior to the introduction of the Act on precisely the same footing as reserves

subsequently constituted in accordance with the provisions of the same. The provision in paragraph 1 of the section that a forest which has been

reserved before the Act shall be reserved forest under the Act, and the last paragraph of the section, in our opinion, show that the intention was

that the notification u/s 25 should operate in exactly the same manner as one u/s 16, to which Section 17 is a mere corollary. As pointed out by the

Government Pleader, the continued existence in a reserved forest of rights which have not been admitted and registered after enquiry is

incompatible with the intention and general scope of the Act.

No doubt provision is made in Section 25 for further enquiry being held into private rights, where Government deems it desirable : but the

wording of the proviso unmistakeably indicates that this is purely discretionary with Government; and the1 undoubted fact that in this case

Government did not order further, enquiry must be taken to show that Government did not regard the previous enquiry as insufficient.

It might be suggested, though the point was not taken by the plaintiffs'' Vakil, that the order dated nth February 1881 (Exhibit IV) does not

amount to a final order of reservation. We have carefully considered this point, admitting, as additional Exhibits for the purpose, the two

Government orders referred to at the commencement of the Forest Committee''s report, and have decided that the argument is not really

maintainable. Paragraph 17 of Government Order No. 1612, dated the 2nd August 1879, certainly seems to imply that Government at the time of

its issue contemplated that, in future cases, a final notification should issue after survey and demarcation. But the issue of such an additional order

would seem to have been in the discretion of Government. There does not appear to have been any legal obligation on Government to issue a

further notification, and the fact that no further notification was issued does not, in our opinion, prevent the Government Order of the nth February

1881, from operating as a reservation for the purposes of Section 25 of the Act. Exhibit II merely directs demarcation and survey-in accordance

with the earlier Government Order, without adding a word regarding the issue of any further notification. When issuing the order under S25

(Exhibit V) Government certainly treated G.O. No. 257, dated the nth February 1881, as if it were a final order of reservation, and there seems to

be no reason to hold that it was not so intended at the time of its issue.

One further point remains for consideration, and it is a point of great importance and one which is not free from difficulty.

u/s 3 of the Act, the Governor in Council may constitute any land at the disposal of Government a reserved forest and by Section 3 of the Act,

land at the disposal of Government is defined as including ""all unoccupied land whether assessed or unassessed.

The Government Pleader conceded, as we understood him, that, when the reservation was made, or, at any rate, when the suit was brought,

the plaintiffs had exclusive possession of the site marked No. 5, the site marked No. 4, and the pavement between sites Nos. 5 and 8 in the plan

P. The question therefore arises, were these sites unoccupied land within the meaning of the Act when the reservation was made, and if they were

not, is it open to the plaintiffs in this suit to set up a title to the land in question? The Subordinate Judge deals with this question in paragraphs Nos.

56 to 58 of his judgment (although, in the view he took on the question of the extent of the land reserved, it was not necessary for him to consider

it). The learned Judge was of opinion that the question was governed by the principle of law which was the ground of the decision in Ramachandra

v. The Secretary of State for India ILR (1888) M. 105. See too Subrahmanian Asari v. The Secretary of State for India (1907) 17 M.L.J. 557.

We doubt if this is so. In Ramachandra v. The Secretary of State for India ILR (1888) M. 105, the reservation was made u/s 16 of the Act, and

the Act itself provides the mode of redress given to a party who deems himself to he injured. The proviso to Section 25 can scarcely be said to

given to a party a mode of redress by way of further inquiry since it is left entirely to the discretion of Government to say whether there shall be a

further inquiry or not. But, as we have pointed out, Section 25 is a very drastic enactment. Its object would seem to have been to give legislative

sanction to any forest reservation made by Government before the Act in all cases in which Government thought tit to exercise the powers given by

Section 25, and by so doing to prevent the question of the legality of any forest reservation which purported to have been made under the

executive powers of Government, or under any prior legislative enactment, from being raised. An enactment of this sort must of course be

construed strictly see for example, the judgment of Lord Blackburn in Metropolitan Asylum District v. Hill (1881) 6 A.C. 193, but the words of

the enactment in question seem clear. We do not think it necessary to discuss the case of Balvant Ramachandra Natu v. The Secretary of State for

India ILR (1905) B. 480. In that case the reservation had been made under the Act and further, as the Judges point out on page 508 of the report,

the decision was under the Indian Forest Act which was earlier in date to the Madras Act, and it is only reasonable to assume that all departures in

the local Act from the language of the earlier enactment were advisedly made and indicate some material difference in the intention of the local

legislature that made them.

It is not necessary for us to decide whether a notification u/s 25 is in all cases conclusive on the question-whether lands comprised in the

reservation made before the Act came into force were lands at the disposal of Government at the time the original reservation was made. The

Subordinate Judge finds in paragraph 57 of his judgment that, on the grounds given in paragraph 56, the Forest Committee though not trammelled

by the provisions of the Act was bound to carry on its duty in accordance with the requirments of justice and fairness, and has done so. We see no

reason to differ from this conclusion. This being so, we are of opinion that the fact, which we have held to be established, that the whole of the land

in question was included in the reservation made by Government before the Act came into force is a good defence to the plaintiffs'' claim.

We are therefore constrained to hold that the rights, if any, which the plaintiffs possessed in the plaint property at the time of the reservation in

1881 were extinguished by the Notification, Exhibit VI, published in January 1884. We do so with reluctance, as it seems probable that the

omission of the temple trustees to come forward at the time of the enquiry by the Forest Committee in 1881 was due to ignorance of the extent to

which their rights would be affected. If they had represented their claims to the mantapams and to the right of access to the Falls for purposes of

bathing and worship, it may well be that they would have been admitted. Even in contesting the present suit, Government has declared its

willingness to safeguard any customary right not only of the temple, but of the public as well; and we do not imagine that Government will consider

it its duty to adopt a different attitude in the future from what it has maintained in the past. The plaintiffs seem to have embarked on the present suit

without making any attempt, beyond the notice prescribed by law, to secure recognition of the lights they claimed by representation to Government

or its responsible officers. Such, at least, is the statement of the Government Pleader which is not contradicted on the other side.

The plaintiffs'' suit must therefore be dismissed with costs in both courts, the appeal preferred by Government (Appeal Suit No. 153 of 1906)

being allowed with costs.