AI Structured Summary
Not yet generated for this judgment
Judgment
These Appeals and Second Appeals arise out of decisions of the Forest Settlement Officer rejecting the claims made by certain wargdars in
South Canara to tracts of forest land which Government proposed to reserve as Government Reserved Forest under the Forest Act of 1882.
The important question of principle that is raised is with regard to the right of Government in the forest and other waste lands of the District. Is it
similar to that which is now well established in the other Districts of the Presidency, omitting Malabar; that is to say, is there a general presumption
that forest and waste land not exclusively occupied by any person or body of persons, is the property of Government? Or, is the presumption
similar to that which is now established in Malabar, viz., that such lands, like all other lands, are presumed to belong to some private person or
family ? Or, is the true position that there is no presumption at all either one way or the other, and that the onus of establishing the claim lies in each
case on the Government or the person who makes the claim;
The British Government took over the administration of the country in 1799 after the defeat and death of Tippu Sultan at Seringapatam, and
Munro was sent to report on its condition and to administer it in 1800. In the course of that year he made three most valuable reports which are
the chief source of the information, and often of the opinions, of succeeding administrators. It is certain that Munro and some of the early British
administrators who took their opinions from him refer to ""all land"" in Canara as being ""private land"" held on ancient and indefeasible titles. But it is
equally certain that they were not thinking of the great tracts of immemorial forest on the Western Ghats and elsewhere in the District and there is
not a single expression in their reports which specially refers to these tracts which form so large a portion and so important a feature of the District
as a whole. Writing in 1894 Mr. Sturrock says: ""South Canara is essentially a Forest District. The slopes of the Western Ghats from north to south
are clothed with dense forests of magnificent timber and the forest growth, stimulated by the heavy rainfall, approaches to within a few miles of the
coast"" in two specified places, but ""generally the heavy forest begins from 20 to 30 miles from the coast * * Even on the plains, however, a large
portion, of the Uppinangadi Taluq is covered with heavy forest, and jungle varying from moderate forest to mere scrub is to be found everywhere
throughout an exceptionally largo area of waste land"" (Manual of the South Canara District, p. 15).
Munro and the early administrators were specially concerned with the land revenue assessment of the District, and their reports in regard to it
must be read as referring to the occupied land which yielded revenue, not to the great tracts of immemorial forests which yielded none. We know
that "" Tippu introduced rules of draconic severity for the conservancy of sandalwood for his revenue and teak for his navy"" (Sturrock''s Manual of
South Canara District, p. 16). The Madras Government almost immediately after the conquest of the country was complete, that is to say, on the
25th April 1807, issued a proclamation announcing that the Court of Directors had resolved to assume the sovereignty of the forests in Canara and
that an officer (Captain Johnston) had been appointed to see that no injury was done to them and that all persons were ""prohibited from cutting or
destroying trees in the teak forests.... or from taking away the young plants.
As regards this proclamation the Bombay High Court justly observes "" The resolution of the Court of Directors could not, of course, give it a
sovereignty which it did not possess already; it was in virtue of a sovereignty already existing that the proclamation was made. What it obviously
meant was that the Court being sovereign by delegation and thus vested with the eminent domain, intended in future to exercise it for the
preservation of forests over which public rights subsisted. It has been urged for the plaintiff that the prohibition extends only to the cutting of teak;
but though this was held chiefly in view, the prohibition must be taken as general, since injury'' might be done by destroying timber of other kinds
ILR 3 B. 727.
In his minute of the 26th November 1822 Munro refers at length to this proclamation and the action of the Madras and Bombay Governments
subsequent thereto. He protests vehemently against the interference of the Conservator of Forests with the rights of the land-holders to the trees
growing on their private lands, but throughout the minute he also refers to other forests as ""undoubtedly public property"" and explains that ""the line
between public and private forests had not been ascertained"" and urges that a survey should be made ""in order to protect the the property of the
public and of individuals in the forests."" The extent of the forests which ho referred to as public was, evidently, very great, for he protests against its
conservancy as checking the extension of cultivation to a dangerous extent. He says "" the complete preservation of the public forests would of itself
be a serious injury to the country. If no part of a hill where teak or poor is now growing, is to be cultivated, it would stop the progress of cultivation
over all hills belonging to Government. Arbuthnot''s life and Minutes of Munro, p. 187, Vol, I,"" It is clear that Munro was very far from thinking
that all forests in Canara were private property. His protest evidently was effectual, for in 1823 Mr. Harris issued a proclamation in pursuance of
the orders of Government that the prohibition extended only to the Government jungles not to timber trees on private lands ILR 3 B. 728, and he
drew up lists of the Government Forests as they then stood. This was followed by Blair''s proclamation in 1843 (Exhibit D in A.S. No. 26), and by
the proclamation of the Government of Madras of the 8th November 1847 (Exhibit F, ibid.) in which the Collector is instructed "" to assert the
rights of Government to all forest lands to which a title cannot be clearly established by private individuals"" and by Maltby''s proclamation in 1854
(Exhibit H, ibid) and by others subsequently, all maintaining the rights of Government in the forests. On the 15th February 1864, the Board of
Revenue wrote that the right of Government in the Forests "" was asserted by the Bednore Government as far back as 1660 when theshist or
original Government demand on the land is said to have been settled and forest lands were excluded from the area liable to land tax as the property
of the State. The Board are satisfied that no claim to Forest land as a portion of warg needs to be admitted unless unquestionable evidence is
forthcoming of a State grant of the land or locality"" and this view was fully accepted by the Madras Government in G. 0., dated 20th May 1865,
No. 359 (Exhibit 0). In 1884 when Mr. Sturrock made an exhaustive enquiry into the actual state of the Government forests at that time, he found
that of the forests found to be Government forest by Mr. Harris in 1823 only 67 could then be identified as the original lists had been burned by the
Coorgs in 1837, but these 67 forests contained an area of no lens than 250 square miles. He also found that there were no less than 394
Government forests which were "" remote from cultivation"" and to which "" no private claims of any kind had been made good."" Looking to these
considerations we may safely say that in the case of the large tracts of immemorial forest on the ghats and elsewhere in the District there is a
presumption of fact that they are Government forests, though, of course, such presumption may be rebutted by proof of private ownership in
regard to any particular part of the forest.
On the other hand, many of the early reports indicate that patches of woodland and waste were not infrequently regarded as included with the
cultivated land in the holdings of the wargdars or land-holders, It cannot, therefore, be held that such patches of woodland or waste when
interspersed with, or adjacent to, the cultivation of a warg, may not be a part of the warg. In a warm, moist climate like that of Canara, land which
has once been forest and has been cleared for cultivation very rapidly reverts to forest if it is left uncultivated. Such forest is for many years easily
distinguishable from primeval forest and is known as secondary growth. In the case of secondary growth the presumption will usually be that it
belongs to some private owner, but this again may be rebutted, as for instance, by showing that it is part of a warg that was abandoned or forfeited
or escheated to Government or by showing that it was not part of a warg but was cultivated as ""Kumri"" ""Kumri"" is cultivation of land outside a
warg by felling and burning a patch of the forest, the ashes acting as manure. After one or two crops are raised the plot is abandoned and a fresh
patch treated in the same way. The wasteful and injurious character of this kind of cultivation was recognised before the middle of the last century
and by the Government proclamation of 1847 already referred to, the Collector was authorized to prohibit it wherever it was found desirable to do
so. In 1860 after an exhaustive enquiry it was decided by Government (G. 0., dated 23rd May I860 R. D.) that the entry of "" Kumri shist (i. e.,
assessment for Kumri cultivation) in the patta (or account) of an estate or warg gave no validity to a claim to proprietary right over the forest in
which the ""Kumri"" was carried on, or even over the spots which had been actually cultivated. ""Wargdar Kumri"" was, therefore, abolished in 1860
and the assessment on account of it was remitted throughout the District, except in a few places where special permission was given (Sturrock''s
Manual, p. 123). The whole question as to whether Kumri cultivation could give a proprietary title to land was examined exhaustively in the case of
Bhaskarappa v. Collector of North Canara ILR 3 B. 452 and was decided in the negative. We are not aware that the correctness of that decision
has ever been judicially doubted, and though it was given inrefeference to a case which arose in the northern part of North Canara where the land
tenures are in some respects different from those of the rest of Canara, yet the grounds on which it is based are of general validity and, in our
opinion, the decision is applicable to South Canara also.
The learned Advocate-Ganeral contends that the wargs contain no land except what is now or was formerly cultivated. Mr. Sankaran Nair, on
the other hand, contends that Munro''s expression that "" all land"" is "" private land"" is to be taken literally, except in regard to some lands which have
escheated to Government and to which their title can thus be referred to former private owners. We do not think that either of these extreme views
is correct, or is in accordance with Munro''s own views if rightly understood. With his report of the 31st May 1800 (printed in full at page 71 of
Selections from the Records of the Collector of South Canara, 1879, and extracted with a statement at page 447 of Vol. 2 of the Fifth Report)
Munro gives a statemet of the land rent of Canara and Soonda showing the changes it had undergono from 1660 down to 1799-1800, and
explains the statement at great length. He states that the settlement of Hurryhur Roy, the Rajah of Bijanaggar, made in 1334-47 was the foundation
of all subsequent assessments and that it was made on an estimate of the yield of the land, the produce being divided in certain fixed proportions
between the labourer, the landlord and the Sirkar (Government). This assessment was increased by 50 per cent by the Raja of Biddenoro
(Bednore) 1618-60; and this enhanced assessment, Munro says, ""has been more than a century considered as the Rekah, or standard rent of all
the lands in the country cultivated and waste."" This manifestly means all the occupied lands, or at least the cultivable lands in the inhabited parts of
the district as it would be absurd to assess great areas of immemorial waste, in the mountains which were uninhabited and unoccupied and not
likely to be occupied within any period that could be foreseen. This rekah or standard rent of all such lands, cultivated and waste is given as Rs.
5,80,000. Then follow four large sums which have to be deducted from this gross standard rent. Munro explains : "" The deductions in the four
following columns are made in order to show the amount of the standard rent of the Sarkar lands actually occupied and paying rent at the end of
the Biddenore Government."" The expression "" Sarkar lands"" is important as showing that Munro regarded the Government as the ultimate owner
of the lands in Canara, subject of course, to the private, or saleable, interest which had grown up in them owing to the lightness and fixity of the
assessment. The expression "" actually occupied and paying rent"" is also important since it shows that Munro was giving an account of such land as
opposed to other land which was not actually occupied and which was not paying rent. The deductions are"" (3) for ''Enaums'' Rs. 1,44,000"" ""(4)
deficiencies of rekah or standard rent Rs. 1,23,000"" ""(5) Waste lands Rs. 58,000"" ""(6) Tunkahs to peony Rs. 8,000."" The total of [these four
deductions is Rs. 2,34,000,This is obviously a mistake. The total deductions according to the judgment come to Rs. 3,33,000. Apparently the
figures are taken roughly. The correct figures as appearing from the Fifth Report, Vol. II, p. 458, are Deductions:-Enaums 1,43,866-12-20;
deficiencies of reka 1,23,194-16-78; waste 58,561-28-14; tunkahs 8,513-22-51. Total deductions 33,413-8-3 or roughly 3,34,000 ag
apparently intended by their Lordshipe and this being deducted from the gross Bednore assessment of Rs. 5,80,000 leaves Rs. 2,46,000 as the
shist or balance of standard rent, as Munro says, ""of the Sarkar lands actually occupied and paying rent at the end of the Bednore Government.
Munro explains these four deductions. It is unnecessary to refer to the "" Enaums"" or the "" tunkahs for Peons."" But his explanation of the other two
deductions is of much importance. He says : "" The waste lands in Col. 5 are all supposed to be fit for cultivation, because the whole or the greater
part of them had been cultivated at different periods under the Bednore Government""; and again : "" The deficiences of Rekah or standard rent in
Col. 4 are composed of uncultivated lands and reduction of rent. The first of these heads comprehends all lands overflowed by the sea, or torn up
or washed away by rivers and nullahs, and ancient waste lands which had been in that state ever since the Byjanuggur Government, and which,
from their situation among the hills and jungles, being deemed unlikely to be ever again cultivated, were withdrawn from the sum of the general
assessment of the country.
Thus the ancient waste lands which had never been cultivated for a century or more and which were never likely to be again cultivated were
treated in the same way as ""lands overflowed by the sea"" and were withdrawn from the category of assessed lands from the year 1660.
Again he writes (para 15) : "" The sums entered in Cols. 8, 44 and 72 exhibit the standard rent of the lands in cultivation under the Rani of
Biddenore, Hyder and Tippoo; and had all these lands been actually cultivated, they would likewise show exactly the comparative rates of
assessment of those three periods. But this was not the case, for a small portion of the land in occupancy, even under the Rani was waste. More of
it was waste under Hyder, particularly in the latter years of his Government; and a far greater-share under Tippoo. It never was the practice under
any one of those Governments to keep an account of waste lands, unless of such as, from the failure of heirs or other accidents, had reverted to the
Sirkar. The accounts contained a register of the number of land-holders and the fixed assessment of their respective estates, the total of which
formed the Jumma; but they took no notice of waste lands, when there was a proprietor in existence. As long as he was present, he was
responsible for the full rent, whether he cultivated or not. This was little felt under the Biddenore Government when there were very few
proprietors who had not the means of cultivating the whole of their estates, but it became a serious evil under Hyder and Tippoo when the increase
of rent diminished cultivation, and by being thrown upon a narrower space (share ?) pressed harder upon the land-holders. Both their assessments
must therefore be reckoned higher than they appear to be from the statement. There is no method of ascertaining with accuracy what in either of
them, was the quantity of waste in those estates which composed the jumma, and which, of course, was subjected to the full rent in the same
manner as if it had been cultivated.
These explanations by Munro show that the lands ''with which he was dealing were lands which were cultivable and which, with only small
exceptions, were actually under cultivation in the Rani''s time. He certainly was not dealing with great tracts of immemorial forest on the ghats, miles
away from any cultivation or with rocky and uncultivable areas such as often exist on the slopes of the lower hills above the cultivated villages.
Further on, wo find that Rs. 3,330 was added to the rent roll on account of the "" cultivation of ancient waste in Hyder Ali''s time and a smaller sum
on a like account in Tippu''s time. In Col. 82 we find an entry "" deductions from Tippu''s assessment on account of waste lands, &c., Us.
1,50,940."" As regards this Munro explains that this large deduction was made by him in the year then current (1799- 1800) and was ""principally
composed of waste lands of which the proprietors are extinct; and which though they have been in that state for a long time past, had been
permitted to swell the jumma at the beginning, and outstanding balances at the close of the year."" As Es. 2,46,000 represented "" the balance of
standard rent of the sarcar lands actually occupied and paying rent at the end of the Biddenore Government,"" and as Rs. 1,50,940 represented
lands of which the proprietors were extinct, it will be seen that some two-fifths of the land which had once been occupied by private persons had
reverted to Government, and was in their hands as waste land which they were as free to deal with as land which had never been in private
occupation ab all. As Munro. himself says "" From these and other causes there were in many parts of the country tracts of waste land which paid
no rent, and which could not be sold "" (para 17).
It is necessary to bear in mind these facts and statements made, by Munro himself in order to correctly understand statements made by him
later on in the same letter and in his letter of the 9th November 1800, when dealing with the proposals of Government to introduce the Bengal (or
Cornwallis) Zemindari system into Canara. So when in para. 27 he says ""the only land in Canara that can in any way come under the description of
Sirkar land is unclaimed waste,"" it is evident that he means not "" unclaimed,"" but unoccupied waste, for it is obvious that a mere claim to land could
not give, or even evidence, a title to it. Again in para. 28 he says "" all public documents convincingly testify that Sirkar land was altogether
unknown,"" and gives as a proof of this the fact that Inams were given in the form of grants of land revenue, not in the form of grants of land. That,
no doubt, was the usual, but not the universal form, for Mr. Sturrock shows that waste and forest were sometimes granted (Exhibit U of printed
documents in A. Section 26). But even if it were the universal form, it is clear that the conclusion does not follow from the premises. Whether an
Inam be given in the one form or the other is a matter of convenience or custom. If the cultivable land is already completely, or almost completely,
occupied, as it was from early times in Canara, and nothing remained but forests or unprofitable waste land, it is clear that the grant of the latter
would be useless, and the only convenient way was to make a grant of the revenue payable by existing occupants. But, indeed, it is manifest from
what Munro says later on that he is not denying the existence in Canara of waste lands at the disposal of Government, for he expressly says (para.
22 of the letter of 9th November 1800) that the Zemindars, if created, ""ought to be vested with the proprietary right of all waste lands to which
there are no owners"" and again in the same para : ""If we restrict the division of lands to the original estate and determine that all subsequent
acquisitions whether from the reversion of inferior estates or the cultivation of Sarkar waste lands, etc."" When, therefore, he says "" Government in
reforming the revenue system of this Province have no new rights to private property in land to create'''' he is referring to Government rights in
occupied land, not in waste land, for he goes on to say that Government "" may augment the value of the property by diminishing the assessment,
but the right itself is already as strong as purchase or prescription can make it and is as well understood as it is in Great Britain."" So in para. 17 of
the same letter Munro describes Canara as a province "" where almost all land is private property derived from gift, purchase or descent from an
antiquity too remote to be traced."" In this passage Munro is discussing and opposing the introduction of a Permanent Settlement of the type just
established in Bengal by Lord Cornwallis which was understood to imply the creation of a class of great landed gentry or Zemindars, a recognition
of them as proprietors of the soil, and the fixing with them in perpetuity of the revenue payable to Government; an arrangement, which, if carried
into effect on the Bengal model, would have been irreconcilable with a recognition of the existing rayats, or wargdars, as owners of the soil
occupied by them and paying revenue direct to Government. As he himself points out at the end of the sentence ""great proprietors cannot be
established without annihilating all the rights of the present landlords.
It will be remembered that the very thing that Munro feared did come to pass. In Section 2 of the Regulation for establishing the Zemindari
system in Madras (Reg. XXV of 1802) it was declared that "" an assessment shall be fixed on all lands liable to pay revenue to the Government,
and in consequence of such assessment, the proprietary right of the soil shall become vested in the Zemindars"" etc. The Regulation was
misunderstood as giving Zemindars a proprietary right even in the lands of the old occupants, and it became necessary to correct this false idea by
passing Regulation IV of 1822 which, declared that the earlier Regulation was not intended to define, limit, infringe or destroy the actual rights of
any description of land-holders or tenants.
By ""all land"" in the passages quoted above Munro meant all ""occupied land"" and by "" private property "" Munro meant land assessed so low as
to command a ready sale 12 B.H.C.R. pp. 41 and 66. See too, ILR 3 B. 524,. In para. 38 of his letter of 31st May 1800, speaking of the high
assessment in Soonda, he says "" there seems to be nothing else wanting but a reduction of the present assessment in order to constitute the rice
lands private property as well as the gardens""; and the Board of Revenue on the 5th August 1813 writes : ""In provinces where the land tax is
happily so moderate that private property in the soil is still preserved 12 B.H.C.R. App. 194."" So he states in his minute of 1807 that ""nothing can
be plainer than that private landed property has never existed in India except on the Malabar Coast ILR 3 B. 524 and the references there
quoted."". His argument was that you cannot ignore the ancient titles and the valuable proprietary rights which the raiyats here possess by giving
their land to Zemindars, as you might in other parts of India, where, owing to heavy assessments, the rayats have no saleable interest, or in other
words, no property in the soil.'' He certainly did not mean that the immemorial forests, and immemorial waste lands generally, did not belong to
Government. It is in a similar sense that the language of the Court of Directors in their despatch of the 17th December 1813, and of the Board of
Revenue in their minute of the 5th January 1813, and of Mr. Thackeray in his report of the 4th August 1807 quoted by the District Judge, must be
understood. They are referring to the lands which were then occupied or which had been occupied and were then abandoned, and they were not
referring to the immemorial forests and uncultivable waste lands. There is no question before us of interference with the admitted holding of any
occupant. Government admits the fullest private ownership of such lands, subject only to liability for the land tax assessed by Government. The
question before us is with regard to certain waste lands which the raiyats allege form part and parcel of their holdings and over which they claim the
same rights as over the land actually cultivated by them; while the Government alleges that these lands are not included in the holdings, but are
Government waste lands in which the cultivators of the adjacent lands have been allowed such privileges as the taking of leaves and twigs for
manure, the cutting of fuel for domestic use, and the cutting of the less valuable trees for the building of their own houses and for furniture. The
difficulty arises from the fact that the holdings of the raiyats have, in most cases, never been defined by boundaries or exact areas, and the
Government officials have from time to time admitted claims to forest and waste lands as included in some of the holdings, and this has made it
possible for the raiyats generally to advance claims to all the waste adjacent to their cultivation, and now to allege a presumption that such waste
land belongs to them and not to the Government. In Canara owing to its heavy rainfall, and the consequent breaking up of the country into hills and
level valleys between them, the cultivation is mainly in the level valleys between the hills, while the hill sides are naturally used for the grazing of the
cultivators'' cattle and for the collection of leaves and fuel. Each ridge or ""netticut"" forms a kind of natural boundary, or limit, within which the
cultivator of the valley below grazes his cattle etc, and this user up to the ridge gradually led to a claim to the fall proprietary right up to the ridge.
The convenience of the ridges, or crests of hills, as boundaries led to their being often adopted in the mulputta title deeds which were in many cases
issued prior to 1844, and this strengthened the idea that the warg lands always or usually ran up to the crest of the ridge, and gave colour to the
cultivators'' claims. In some parts of the District and especially near the coast, owing to the absence of the hills the claims could not be defined by
reference to the ridges, but there were generally some jungles or pasture lands over which similar privileges were exercised and to which similar
claims were made (District Manual, p. 129).
In this connection we may point out that much misconception has arisen from the use of the word "" estate"" as the English equivalent of the
''warg'' or holding, of a raiyat. Warg is derived from the Sanscrit varga-a leaf-and was applied to the palm leaves on which the revenue official kept
an account of the raiyat''s holding. A man''s warg was simply the account of the assessments payable by him for his lands, which were not
necessarily all -adjacent, but might be situated at a distance from each other and even in different villages. The word "" estate "" conveys the idea of a
compact property, which is wholly alien to the idea of a warg. The use of this word ""estate"" for the raiyat''s holding has thus led to the idea that a
warg is a more or less compact entity, comprised of cultivated land and of all the uncultivated land and forest lying between the cultivated portions.
When once it is understood that the lands of one warg may be intermixed with those of another warg, and may even be in different villages it will be
apparent how erroneous this idea is, and how liable the use of the word '' estate'' is to lead to an erroneous conception of the rights of the wargdar
to waste land adjacent to his cultivated land. So long ago as 1839 Mr. Maltby, the Collector, drew attention to the fact, that extensive tracts of
Government jungle and waste had been appropriated in this way by persons who had no title whatever or whose right was at least extremely
doubtful, and in 1848 Mr. Blane went very fully into the subject in his report to the Board of Revenue, dated 20th September and quoted in
Sturrock''s District Manual, p. 125. He wrote : "" (37) The theory at present asserted by the land-holders of Canara and which has been practically
acted upon at least since the tharao settlement (1819) is this, that their estates include not only the land which was in cultivation at the time the
former settlements were made, but also tracts of waste of two descriptions:-First, the waste lands which had fallen out of cultivation in former
times, and, second, immemorial waste lands which never were in cultivation, both of which kinds of waste they allege that they have a right to bring
under cultivation without any additional assessment. They assert that the beriz was fixed upon the entire estate, including lands of every description.
Of these waste lands, as I have before stated, but cannot too often repeat, there is no account or record whatever.
(40) Upon the whole I am inclined to the belief that it was the intention, in fixing the tharao beriz, that no account should be taken of increased
cultivation within the limits of the estates,
With respect to the other class of waste lands claimed as being attached to estates to which I have referred, viz., the immemorial waste, they
may be considered to forma distinct question from that of the waste lands just referred to. It is to the claim to these lands which has been
incautiously admitted or at least not opposed, that I attribute the absorption of nearly all the rekahnust or Government waste land The claim
appears to have recently attracted the notice of Government, for it is apparently respecting these that it called for some information in its Minutes of
Consultation, dated 5th August 1845. There are considerable tracts of such kinds of waste land attached to a great part of the estates, some of
which is cultivable and some consisting of hilly or stony ground incapable of improvement. They are often termed "" Kumaki"" lands or lands allowed
to assist in the cultivation, and they were intended to afford to the raiyats the means of procuring leaves from the brushwood or jungles growing on
them as manure for their fields and to furnish grass as fodder for their cattle; but they do not appear originally to have differed materially from the
waste lands used for similar purposes in other parts of the country except that in place of being common to the whole village, they were divided
and enjoyed in separate portions by the individual land-holders. The original terms upon which they were held then I conceive to have been
essentially as an adjunct to, and in connection with the cultivated lands and the right to them to have been a modified right, and only to be enjoyed
for the purposes for which they were held as above stated. The usufruct of them for such purposes was a necessary concession, but I do not
conceive them to have been on that account the less Government lands, but only lands which they were permitted to occupy for particular
purposes.
(42). If such were in general terms the nature of the tenure under which they were held it has become entirely altered under our administration. The
raiyats now claim the absolute proprietary right in them the same as to their cultivated lands, and as a necessary consequence of such aright, the
liberty to bring them under cultivation without the payment of additional assessment and even of selling or letting them, and thus separating then, if
they choose, from the cultivation and alienating them from the original purposes for which they were intended. Another effect of such a tenure is,
they can prevent others from taking them upon a patta and upon a fixed assessment payable to Government, and the person occupying them pays
the rent to the land-lord not to the Government, and is in every respect his tenant. It is necessary to observe, however, that right to cultivate such
lands is not admitted in theory, but it is, as a general rule, actually enjoyed in practice, from the simple cause to which I have so often alluded that
we do not know the extent of the original estates, and cannot tell, therefore, what is new cultivation and what is old and the ready answer to all
questions on the subject is that it is part of the original cultivation.
It will thus be seen that Mr. Blane in 1848 admitted the full proprietary right of the wargdar to the waste lands (adjacent to his cultivation)
which had formerly been cultivated, but which had fallen out of cultivation (Warg banjar); but as regards land which had never been cultivated he
did not admit any proprietary right, though he allowed what he called a modified right, what Mr Sturrock calls an easement, but what is really only
a license or privilege, viz., to make use of the leaves and other produce of the land as an aid to the cultivation of the warg lands and for domestic
purposes, subject to the full proprietary right of Government. Mr. Sturrock says that this is the view which has been held and acted upon ever
since by Government and its Revenue Officers.
Land within ""nettikut "" limits has not since 1848 been regarded as attached to any of the adjacent warg lands, while exclusive "" Kumari
privileges have been conceded in the forests adjacent to the warg lands only to the extent of 00 yards all round each part of warg land. Beyond this
limit of 100 yards the cultivators, i. e., all the wargdars of each valley have been allowed "" the common usufruct of the open hill sides up to the
water-shed dividing each valley but must not cut down trees growing in this common land ''''. (Proceedings of the Board of Revenue, dated 20th
January 1865, No. 490.) The limitation of exclusive "" Kumaki ""privileges to 100 yards appears to have originated as far back as 1823, when Mr.
Harris allowed Kumaki to that extent in Government jungles to such wargs as had not then any Kumaki lands attached to them, but the general
application of the limitation to the old wargs appears to have been made in 1845.
Such being the established revenue system and practice in the District for the past half century, it would, we think, require much stronger
evidence than has been adduced before us in these cases, to justify us in laying down any rule that the practice is not justified by the revenue history
of the District and that on the contrary there is a presumption that immemorial waste land adjacent to what is admittedly warg land must belong to
some private owner as contended by the learned vakil for the appellant
There is no ground whatever for saying that the land tenures of Canara, and the respective rights of the land-holders and of Government in
Canara are on the same footing as in Malabar. We have seen how by repeated proclamations and executive action, the Government asserted its
right in the forests of Canara from the earliest times after the acquisition of the Province. As regards immemorial waste lands, we know that Manu
founded the right of the cultivator on the fact that he "" had cut away the wood and cleared and tilled the land "" (chap. IX, pl. 44 of Sir W. Jones''
translation), a basis that would give him no proprietary rights in waste land which he had never cleared or cultivated. Canara, we know, was under
the sway of the Vijanagar and Bednore dynasties for some 400 years and then was ruled by Hyder and Tippu for some 40 years before it was
conquered by the British. It is now well established that under the Hindu Common Law the immemorial waste lands of the country generally
belonged to the ruling power, and it would be strange indeed if the essential features of the Hindu system were not established during the centuries
of Hindu rule which preceded the Mahomedan conquest. The facts that we know with any certainty indicate that that system was, in truth,
established. We know that the land assessment was based on an estimate of the grain produce of the land, which was divided in certain
proportions between Governsment and the cultivator just as in the East Coast Districts. Mr. Ellis compared the land tenures in Canara to those in
the Arudi Karai villages to the south of the Coleroon on the East Coast, where the right of Government to the waste lands has now, after
protracted contest, been established as against the Mirasidars. We also find that the Native Government sometimes made endowments by grant of
the was et land itself, including forests, though no doubt the usual form of grant was of the Government share to the produce of occupied land.
(Mr. Sturroek''s report of the 3rd April 1884 printed in Exhibit U, paras. 18 and 19).
When the Mahomedan Government succeeded the Hindu Government there can be no doubt that it exercised proprietary rights over waste
lands, in accordance with Mahomedan Law. In Munro''s account to which we have already referred in detail, we find considerable additions to the
revenue in both Hyder''s and Tippu''s time from the "" cultivation of ancient waste."" The rule as to waste land is laid down in the Hidaya, Vol. IV, p.
129 : "" Whoever cultivates waste lands with the permission of the chief obtains a property in them; whereas if a person cultivates them without such
permission, ho does not in that case became proprietor, according to Hanifa * * * Besides all waste lands are plunder, seeing that the Mussalmans
acquired possession of them by conquest and hence no person can assume a property in them without the consent of the Imam as holds in all cases
of plunder "". At page 91 of his work on the law and constitution of India, published in 1824, General Galloway writes, "" By the Mahomedan Law
the land revenue of the Crown was fixed on the arable land only. That alone was given away to the husbandman who became the owner. All other
lands remained the property of the State, and were ready to be given away, on application to any one who would undertake to cultivate them. If he
did cultivate, well; if not within a reasonable time, which was limited to three years, the land was taken from him, and might be given to another, By
law, therefore, it is evident that no right can exist in any individual, or body of individual, to any other description of land than that which is
cultivated"". Nothing in fact can be more certain than that under the Mahomedan Law waste land was the property of the State, as shown in great
detail in Vyakunta Bapuji''s Case 12 B.H.C.R. at p. 53 et seq.
The British Government when it took Canara from Tippu Sultan in 1799 succeeded to the rights which he then actually exercises as sovereign,
and the rights thus acquired continued in the British Government until given up by it. This was the view of the Madras Government in its letter of the
20th September 1809 quoted at p. 125 of 12 B.H.C. App Speaking of Inams the letter says: "" The Inams having been entirely resumed by the
house of Hyder Ali, original grounds on which they were granted have been subverted, and the Company having succeeded to the right actually
exercised by Tippu Sultan it cannot be incumbent on them to revert to the original institution of those grants"".
We have already shown that it cannot be held that Munro even in 1800 considered that Government had no proprietary right in immemorial
waste lands in Canara. But whatever argument may be founded on some passages in his early reports, his minute of the 31st December 1824, in
the earlier part of which he more than once referred to Canara, shows that in his later years he had no doubt as to the rights of Government in the
immemorial waste lands. As pointed out in Vyakunta Bapuji''s case 12 B.H.C. App at p. 58 : "" Both Sir Thomas Munro and Mr. Mountstuart
Elphinstone maintained that the waste land now belongs, and has always belonged to Government. The former, in a minute of the 31st December
1824, penned by him as Governor of Madras, when his experience had reached its ripest maturity, after referring to the opinion of Mr. Ellis that
the waste land in miras villages in Arcot belonged to the Mirasdars jointly, denied that they had "" the right of ownership. "" He added, "" The Circar
(Sarcar) from ancient times has every where, even in Arcot as well as in other provinces, granted waste in inam, free of every rent of claim, public
or private, and appears in all such grants to have considered the waste as being exclusively its own property. It may be objected that if this were
the case, it might give away the whole waste lands of a village, and injure the inhabitants by depriving them of their pastures. It certainly might give
away the whole, but whether the exercise of this right would be injurious to the inhabitants would depend on circumstances."" And again he says :
In all villages, whether miras or not, the inhabitants reserve to themselves the exclusive use of the waste. But this right is good only against strangers
not against the Circar (Sarkar) which possess, I think, by the usage of the country, the absolute right of disposing of the waste as it pleases, in
villages which are miras as well as in those which are not. In the Dekkan, in miras villages, the corporation has not the right of disposing
unoccupied land, but the Circar has"". And Mr. Elphinstone says : "" The unoccupied waste, as in all other cases where society has assumed a
regular form, must, no doubt, have belonged to the State; but the King, instead of transferring this property to the intended cultivators for a price
paid once for all, or for a fixed annual rent or quit rent (as is usual in other countries) reserved a certain portion of the produce, which increased or
diminished according to the extent and nature of the cultivation. The rest of the produce belonged to the community of settlers.
The State, he subsequently, at some length, shows, might grant those waste lands on such terms as it deemed fit and found practicable.
With reference to these considerations West, J. in Baskarappa v. Collector of North Canara ILR 3B. 584. lays it down that "" under British
rule though its introduction would not extinguish private rights already fully acquired, the principle from which we must start is that waste lands
belong to the State"".
The British Government having thus succeeded to the full ownership of all forest and immemorial waste lands, has it in Canara ever abandoned
those rights generally to any person or sets of persons ? We do not find any evidence that it has.
We have already seen how explicitly and repeatedly the right of the State in the forests was asserted in proclamations issued by, or under the
direct orders of Government, and the proclamations were followed by executive action. We also know that the British Government has from the
earliest times formed new wargs by grants made from immemorial waste. Such new wargs are locally distinguished by a special name and are
known as Hosagame wargs (District Manual, p. 120). They aredistinct from re-grants of escheated or abandoned wargs. Several Hosagame
wargs are referred to in the evidence in the cases before us and in some instances (see judgment in App. 28) these new wargs have been formed
out of waste land actually contiguous to cultivated warg lands, and the new wargs have sometimes been assigned to strangers having no adjacent
warg lands. At pages 122 and 123 of the District Manual Mr. Sturrock gives the rules for the classification and grant of these lands and says:
There are but few assessed waste lands in this District, except in localities where they are not now much sought after, and consequently the
majority of darkhasts are for unassessed waste, and are dealt with as far as possible under the same rules as are in force for applications for
assessed waste in other Districts.
The formation of these new wargs as part of the regular revenue system of the District conclusively negatives the contention that all waste lands
in the District belonged to the ancient Wargdars. These new wargs are formed out of lands in which previously the old wargdars had enjoyed
Kumaki privileges, and this fact goes far to show that the Kumaki privileges were privileges and nothing more, and were similar to the privileges
enjoyed by mirasidars in other Districts in the Government waste lands of their villages.
No evidence has been adduced before us to show that the wargdars do now, in fact, exercise or have generally in the past, exercised, acts of
undoubted ownership in the wastelands adjacent to their cultivation and running up to the Netticut or ridge, such as the granting of leases to tenants
for cultivation, the cutting of the more valuable timber trees for sale, and the like. All that they have generally done are such acts as the Government
allows to be done in what are admittedly Government forest and waste lands for the benefit of the adjacent cultivation, such as the taking of fuel
and of leaves for manure (see Judgment in A. Section 28, infra). As pointed out by West, J., in Baskarappa v. Collector of N. Canata ILR 3 B
586 ""In the case of a private owner even, the allowance of acts which do not necessarily involve any denial of his ownership, or a grant from him,
does not suffice to create an ownership against him; and the mere non-interference of the State, to which neglect is not to be imputed, is not to be
accounted for, if it can be otherwise accounted for, on a presumption of a surrender of its ownership. Such a transaction must be evidenced by an
undisguised and effective appropriation assented to or submitted to by some one having due authority, or else fortified by an equivalent law of
prescription"". It may be added that ""even though there had been no interference on the part of the revenue officers with the free use of the forest,
yet that free use, without an exclusive appropriation, would not in itself constitute an exclusive right as against the public. The right arising from the
State''s eminent domain is not extinguished by its mere non-exercise; and its exercise was not called for until some public injury or inconvenience
arose ILR 3 B. 739 ""and"" there can be no grant, no acquiescence in possession, unless the essential elements of possession, a fixed, a definable, an
exclusive occupation exist and are present to the perception of the parties ILR 3 B. 583"".
All these considerations point to the conclusion that the general presumption is in favour of Govenment ownership of any immemorial waste
lands to which no private person can show a title by grant, or by such user and occupation as is inconsistent with the proprietary right of
Government. What acts prove such user and occupation must be determined according to the circumstances of each case separately. On the other
hand, land which has been at any former time cultivated may generally be presumed to be warg land, unless it is shown that it was Kumri or
otherwise not included in any warg. As to grants we know that 893 Mulpattas, or title deeds in which the boundaries of the lands were specified,
were issued prior to 1844. These grants often include forest and waste lands, and, though at one time, it was thought by some that it was not
intended to grant or acknowledge proprietary right in such lands, Government since 1881 has acknowledged the full proprietary right of the
grantees to everything within the boundaries in those grants (C.O. dated 7th Decembar 1881, No. 889 R.D.) and no difficulty can now be felt in
dealing with these cases except in identifying the boundaries. The fact that forest and waste was included in these title deeds, even if the omission to
secure the proprietary rights of Government therein was not unintentional, is only evidence at most that the Revenue officers who issued those title
deeds thought that the particular patches of forest and waste included in the deeds belonged to the particular wargdars they were dealing with. It
cannot be regarded as proof that any other patch of forest or waste belongs to some other wargdar, especially in view of the fact that when the
effect of the terms of these title deeds began to be realized their further issue was, in fact, discontinued in 1844, and finally forbidden in 1859.
The conclusions at which we have arrived are in accordance with the decisions of this Court in all the cases in which these questions have
hitherto been considered. In the case of Subbaraya v. Krishnayypa ILR 12 M. 442 the Collector granted to another certain land which was
included in the Kumaki waste land attached to the warg of the plaintiff. The plaintiff sued to recover possession of the and, but the Court, (Collins,
C.J., and Parker, J.) referring to the two Bombay cases quoted above, held that "" the principle to start from is that waste lands belong to the
State,"" and that as this was waste land not included in the plaintiff''s warg, or holding, but only attached to it as Kumaki, that is, as an aid to the
cultivation of warg land by supplying leaves and manure, etc., it was open to the Collector to grant it for cultivation to any other person at his
discretion. It may be that in that case the general rule was taken for granted and there can be no doubt there was not the elaborate examination into
the question from the historical point of view which there has been in the present case. In the present case we have had the advantage of hearing a
very full argument, and of considering all the available documentary evidence which can throw any light upon the question. After giving full
consideration to the arguments and the documents the conclusion at which we have arrived is that the law as laid down in Subbaraya v.
Krishnappa ILR 12 M. 442 is good law. The same view had been taken in an earlier unreported case S.A No. 86 of of 1886, Fernandez v.
Madappu in which the Court (Kernan and Parker, JJ. held "" the plaintiff is not entitled to have 100 yards next his warg kept waste, so that he may
use the same. The Government are the proprietors of the waste lands and they had the power at any time to give them on darkhast. They have
given them to the 1st defendant on darkhast, and before they did so the appellant applied for them on darkhast, and this was refused. According to
the custom of Kumaki, a Wargdar is only entitled to an 100 yards waste next to his warg so long as they remain waste."" In S.A. 436 of 1899 the
claim was allowed solely upon the ground that a grant had been proved which comprised the whole of the area within the boundaries without any
reservation in reference to forest land. In Criminal Revision Case No. 326 of 1901, two members of the present Bench upheld a conviction of a
Warg-dar for cutting timber in the Kumaki attached to the warg.
We are not aware of any decision of this Court in which doubts as to the correctness of those decisions have been expressed.
The decision in the Attapadi Valley case Secretary of State v. Vira Rayan ILR 9 M. 187 is irrelevant since it relates t, Malabar, the revenue
history and tenures of which are very different from those of Canara. In that case the Judges considered it of vital importance to determine at the
outset whether the land in question appertained to the District of Malabar, and they are careful to limit the statement that there is no presumption
that forest lands are the property of the Crown to the District of Malabar. That case was, moreover, one in which Government as plaintiff sued for
a declaration of the right of Government to the land, and the suit was dismissed expressly on the ground that the respondents (defendants) "" were in
possession of and recognised as proprietors of the lands they claim by Government Officials for a long period,"" and on the ground that there was
no proof of possession on the part of the Crown and no proof that any cause of action has arisen against any of the defendants within 60 years
before suit.
In Case No. 9 of 1831 in the decrees of the Sadr Adaulat p. 34, to which the District Judge refers, the Collector of Canara claimed to have
the right to eject a person from a garden. As the Judgment puts it "" the point maintained is that Government being the landlord and proprietor of the
garden in dispute, the principal Collector, as the servant of Government, had a right to oust the plaintiff, she being a tenant-at-will,"" and as "" the
garden now in dispute always remained in the possession of the Sarkar."" The garden had, in fact, been in possession of the defendant before the
British Government took possession of the country, and as the Court pointed out, she had "" continued to occupy the premises on '' Beriz Puttahs''
from the Collector, the tenor of which appears to involve an acknowledgment of proprietary rights in the occupant rather than the contrary as
contended for by the appellant "" Such being the facts of the case before it, the Sadar Adaulat naturally enough held that the 41st para of the minute
of the Board of Revenue, dated the 5th January 1818, was conclusive evidence that Government had no right to the garden in dispute. There is
absolutely no decision in the Judgment, nor even any obiter dictum, to the effect that Government in Canara has no title to the forest and
immemoral waste to which a private title is not made out.
Such being our conclusions on the general questions of principle, we must now consider the particulars of each of the appeals before us.
In Second Appeal No. 1277 of 1900.
The learned Advocate-General contends that at the time when the claimant''s warg land were surveyed about the year 1890, the claimant
made no claim to the forest now claimed, and that consequently the present claim is barred by Section 25 of the Boundary Marks Act (Act
XXVIII of 1860, Madras) and relies on the Pull Bench decision in Kamaraju v. The Secretary of State ILR 11 M. 309.
It may perhaps, be that the claim is so barred, but the Government has not adduced any proof that the procedure prescribed by the Act was
followed, so as to make the survey binding on the claimant. No issue was taken, and the matter was not investigated by the Courts below. We
cannot, therefore, in Second Appeal disallow the claim on this ground.
On the other hand, the claimant''s vakil contends that the District Judge has found that the forest claimed forms part of the claimant''s warg, and
urges that this is a finding of fact which it is not open to us to review in Second Appeal.
We however, think that it is clear from a perusal of the ""District Judge''s judgment that he misunderstood the common law of the District and
had not present to his mind a correct view of the presumptions in regard to forest land in Canara which we have seen arise from a consideration of
its Revenue history and peculiar tenures. For instance, he accepts a brief statement from the Imperial Gazetteer that "" almost all land in South
Canara is private property, some unclaimed waste and lands escheated to Government being the only exception. The whole is divided into estates
(wargs), &c."" We have seen how inaccurate and inadequate this whole passage is as a definition of the tenures of the District and the respective
position of the Government and of the wargdars quots the forest and immemorial waste lands, and the misconceptions on these fundamental
questions of the common law have misled the District Judge in his appreciation of the evidence that has been adduced.
It is also clear that the District Judge has attributed to the claimant''s witnesses evidence which is not to be found on the record and he has not
dealt with the important evidence given by the Village Officers on behalf of Government or the inferences to be drawn against the claimant from his
own petitions and from the Revenue receipts filed by him. For instance, in para. 2 of his Judgment he says: ""Three witnesses were examined on
behalf of the appellant (claimant), one being his Kariastan and the other two his tenants. Their evidence is to the effect that the forest has from time
immemorial been included in warg No. a 32nd that the appellant and his ancestors have exclusively exercised proprietary rights over it."" Not one of
these witnesses says that the forest is included in warg No. 32, nor do they say that the claimant has exercised exclusive proprietary rights over it.
The Kariastan merely produces Exhibits A to D and says that he "" sends coolies to the forest to bring firewood, leaves, twigs, etc. from the forest"",
and "" I have prevented many persons from trespassing and collecting produce in the forest. The watchers bring them to me."" These acts, as we
have seen, do not by any means prove exclusive proprietary right as against Government. They are precisely the acts done by all wargdars in
regard to Government land in which they are allowed "" Kumaki'', or Nettikat privileges for the benefit and better enjoyment of their warg lands.
The two tenants no doubt say that the claimant has been "" in enjoyment of the forest from time immemorial"", one of them says that the forest
belongs to the claimant"", and they give as a reason for this view that no one is allowed to take things from the forest without the claimant''s leave,
but the effect of this general evidence is rendered comparatively unimportant by the fact that both say that other wargdars similarly enjoy and take
produce from the slopes of the hills above their wargs. Thus if the evidence of these witnesses is to be accepted as proof of the claimant''s
exclusive proprietary right in the forest, it would equally justify the finding of similar rights in all wargdars in the forests stretching from their warg
lands to the crests of the hills above them; but we have seen that these Nettikat privileges are something very different from proprietary rights and
do not negative the proprietary right of Government.
The witnesses also refer to the claimant paying watchers to keep away trespassers and, in Exhibit C we find entries of such payments, from
time to time, for many years past, but the District Judge has not noticed that the keeping of such watchmen is not necessarily proof of a possession
adverse to Government. They are necessary to prevent trespassers from other villagers taking the produce of lands. As long ago as 1858, the
custom of keeping such guards was recognized, and its practice even enjoined by the authorities as a means of preventing violence and theft and
the destruction of the forests. Mr. Maltby in his proclamation of August 1854 (printed as Exhibit H in the documents in A.S. No. 20) after re-
iterating the rights of Government to the ""forest and hill etc., excepting the lands under cultivation"" and informing the people how they were to
proceed if they required timber etc., from Government jungles or from Kamaki lands, proceeded as follows:
There is no objection to the ryots guarding and growing the forest situated near their lands or according to custom of the country, as far as the
Nettikattu or Niradhare, for the aid of the cultivation of their lands, and to their using the grass, dry leaves, and fuel therefrom. Yet on this pretext
the forest should not be cat from the bottom (roots), and sold. If for any good reason it is necessary to cut the forest from the bottom, a petition
should be made with regard to it and such orders as the merits of the case deserve shall be given.
It has been noticed in many proceedings that on account of the ill-will which the ryots bear towards each other, strangers cut leaves, fuel etc., by
force from the forest situated near the lands of another and grown by him by keeping guard over it and it is made the subject of a suit. If such things
take place, there is reason to fear violence and theft being committed and to the growth of forests being distroyed. Therefore in future each should
guard the forest in the neighbourhood of his lands as ordered above, only the leaves, grass, dry leaves and fuel necessary for the aid of cultivation
of his lands should be used and other people should not enter that forest. There are lands which have no forest in the neighbourhood. Those that
cultivate such lands should remain separate, and make use of leaves and fuel for the aid of their cultivation from the forest enjoyed by the ten
people (Hattu Mandi). (Note.-That is, by the villagers generally).
If any one cuts trees and forests contrary to the order given above, the same shall be attached and those that cut the same shall be punished
according to law.
The acts then, to which these witnesses speak are consistent with the forest being the property of Government in which the claimant enjoyed so
called Nettikut privileges. It is remarkable that none of the witnesses speak of the claimant ever felling timber, or giving permits for such felling or
for cultivation in the forest. These are the especial acts indicative of ownership which might be looked for if the claimant, in truth, exercised anything
more than "" Netticut"" privileges.
The claimant''s petitions show that her original claim on the 16th May 1894 was not to proprietary right, but rather to the continuance of the
existing Kumaki or Netticut privileges. She there speaks of the forest as ""adjoining"" not as forming part of her warg No. 31 and as being necessary
as an aid to its cultivation by supplying manure and leaves etc., and for fuel. In her next petition, dated 18th September 1894, her Kariastan says
he will adduce documentary evidence to prove her title to the forest. This it may be noticed, he has not done. In the third petition, dated the 18th
October 1894, the Kariastan speaks of the forest as ""abutting"" both on wargs Nos. 31 and 32 and adds that ""the chittas of warg No. 32 bring to
light another circumstance of the utmost importance,"" viz., that a considerable portion of the forest has been held by the house as an integral part of
the wag No. 32 itself for which an assessment of Rs. 44 on a distinct heading has been levied for that warg.
Here the forest is no longer only "" adjoining"" warg No. 31, but it "" abuts"" warg No. 32 also, which is a much larger warg, and a portion (not
the whole) is an intergal part of the warg, charged with a separate assessment. In the next and latest petition, though the forest is still spoken of as
adjoining wargs Nos. 31 and 32"" yet the whole is claimed as a portion of the