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Judgment
Odgers, J.—In the first of these the Secretary of State appeals against the decree of the Additional Subordinate Judge of Bezwada in O.S.
No. 22 of 1923 on his file. This was a suit by the zemindar of South Vallur for a declaration of his title to certain lankas, and for possession with
mesne profits for nine years which are estimated at over Rs. 2 lakhs and for future mesne profits till delivery. The plaintiff zemindar''s father
obtained the South Vallur estate in 1896 and his uncle got the North Vallur estate and the latter successfully established his right to possession of
the lankas attached to his estate [cf. Secretary of State for India v. Bommadevara Venkatanarasinha Naidu 58 Ind. Cas. 689 : (1920) M.W.N.
209 : 11 L.W. 256 : 27 M.L.T. 147.]
From 1894 the Government was in possession of the Kistna River for conservancy purposes and the suit lankas were formed in consequence of
the operations of Government. On 12th June, 1920, the plaintiff zemindar made his first demand for the possession of the suit lankas and they were
delivered to him on 14th July, 1921. The suit, O.S. No. 22 of 1923, was, therefore, only fought before the Sub-Judge on the question of mesne
profits. The Government was in possession of the Kistna River under the provisions of Act VI of 1884. Section 11 of the Act runs as follows:
After such surveys shall have been completed and approved and the notification as provided by this Act made by the Governor-in-Council, land
within the limits of a river-bed, as defined in Section 7 which has not been cultivated for two years previous to the date on which this Act is applied
to the river, shall not, without the previous permission of the Conservator of Rivera in writing be planted, cultivated or built upon, and it shall not be
lawful without such permission to plant, cultivate or build upon, within the limit of a river-bed, any new formation of land. Whoever commences or
carries on, or attempts to carry on, any plantation, cultivation or construction in contravention of this section and of a notice from the Conservator
to desist shall, on conviction before a Magistrate, be liable to a fine not exceeding rupees five hundred or, in default of payment, to simple
imprisonment not exceeding three months for every such offence.
By Section 12 cultivation may be prohibited if it tends to obstruct or divert the course of the river. By Section 16 refusal of permission to
cultivate or requisition to remove construction, etc., give a right of compensation to the person aggrieved by such refusal or requisition. The
Subordinate Judge has found that Government were never in wrongful possession of the suit properties but were in possession under their statutory
right and that permission to cultivate was never refused. It was not even applied for in this case. The Sub-Judge, however, held that the zemindar
was entitled to mesne profits for one year as Government was in possession for that period ""even after demand."" He, therefore, held that
Government''s possession from July, 1920, was wrongful and awarded the zemindar mesne profits at the rate of Rs. 30 per acre. It is from this
decision that the Government appeals. The Sub-Judge after finding that the plaintiff never applied for permission and that it is only when permission
is refused that a cause of action is given seems to be clearly wrong in holding that Government''s possession from July, 1920, was wrongful.
Although he finds as just stated, he seems to hold that demand on the part of plaintiff is sufficient to give a right to compensation. This is clearly
contrary to the provisions of Section 16. In the other Appeal No. 193 of 1924 the zemindar contends that the Secretary of State assarted a title, to
the lankas against him and that the Secretary of State''s possession was, therefore, wrongful ab initio and that he is liable for mesne profits for the
whole of 9 years from 1911. The zemindar relies on the position of the North Vallur estate and says the same considerations apply to South Vallur.
As pointed out by the Sub-Judge in the case of North Vallur the cause of action was refusal of permission to the zemindar in 1911. It seems to me
that we have nothing to do with North Vallur here and that the fact that they were once in the same zemindari cannot affect the present case. As
stated above the first demand for possession was on 14th June, 1920, which appears to have been a notice of suit. The Collector replied on 7th
August, 1920, (Ex. XI) requesting the zemindar either to furnish a plan or have the extents claimed pegged out or demarcated on the ground. On
19th November, 1920, (Ex. E-l) the Collector offered to put zemindar in possession if the estate would waive mesne profits claimed in the suit
notice. An office note on this is to the effect that the zemindar was unwilling to waive his claim to mesne profits and a reply seems to have been sent
to this letter of the Collector on 23rd November, 1920, but it is not exhibited and on 25th November, 1920, the suit was filed. On 29th
November, 1920, the Collector wrote to say that the matter has been referred to the Board of Revenue for orders. On 28th April, 1921, (Ex. XII)
Government agreed to recognise claim of zemindar to the suit accretions in the Kistna River and on 14th July, 1921, possession was delivered.
The zemindar''s Vakil contended that Exs. C and D show hostile assertion of title by Government and that on the analogy of the North Vallur
decision we must assume that half the river-bed belonged to the zemindar. These Exhibits refer to the levy of seigniorage for the removal of Band
from the riverbed. Exhibit C (24th November, 19l5,) is said to be a private copy of a Takeed issued by the Tahsildar of Bezwada to the Village
Officers of South Vallur. It is not proved by any witness to be a copy of an original and it ought not to have been received in evidence by the Sub-
Judge. Exhibit D (29th February, 1918), is a letter from the Divisional Officer Bezwada to the Estate Collector, Kistna and points out with
reference to a certain letter not filed that the Kistna river bed belongs to Government. Further seigniorage has been ordered to be levied as there is
no implication that the river bed belongs to the South Vallur. We do not know to what exactly this letter refers and as to whether or not it affects or
might thereafter affect rights to be subsequently declared in favour of the zemindar. It is impossible to my mind to hold that this is a hostile assertion
of title by Government against the zemindar, whose rights had not then established. Exhibits A and B are the pleadings in the North Vallur suit
which were also relied on for the same purpose. The only provision of the Evidence Act which the learned Vakil was able to point to as being
applicable to enable them to be admitted in evidence was Section 32 (4) but there was clearly no public right or matter of public interest in issue in
the North Vallur suit. These exhibits are, therefore, irrelevant. The zemindar therefore, not having asked for permission and no permission having
been refused is not entitled to compensation under the Rivers Conservancy Act and it cannot be said that Government has asserted a hostile title
against him or that the decision as to North Vallur has any bearing on this case. The appeal of Government (No. 130 of 1924) must, therefore, be
allowed and the zemindar'' Appeal No. 193 of 1924 dismissed, both with costs to the former throughout.
Phillips, J.
I agree.