PRIVY COUNCIL

               Secretary of State for India

               Vs.

               Chellikani Rama Rao and others

                                     P.C.A.No. 104 of 1914.
(Lords Shaw, CJ, Sumner Parmoor, Sir John Edge, Mr. Ameer Ali And Sir Lawrence

                                            Jenkins. JJ )

               7.7.1916

               JUDGMENT

Lord Shaw CJ.

1. These are consolidated appeals from two decrees of date the 30th September 1909,
pronounced by the High Court of Judicature at Madras. The appeals relate to certain
parcels of land claimed by two Zamindars. These Zamindars' claims were, on the 19th
October 1903, in certain proceedings under the Madras Forest Act (V of 1882),
dismissed by the Forest Settlement Officer of Godavari. His judgments were affirmed
by two decisions of the District Court of Godavari, dated the 27th July 1904. These
decisions of the District Court were, however, reversed and varied by the High Court
by the decrees now under appeal to the Board. The appellant is His Majesty's
Secretary of State for India.

2. The question for determination is whether the appellant is entitled to constitute or
incorporate the lands into a reserved forest under the Forest Act. The respondents are
objectors and claimants under the Statute.

3. The physical facts are not in dispute; they have been found by the Courts below.
They are quite simple. The lands are islands which have been formed in the bed of the
sea near the mouth or delta of the river Godavari. The Godavari is a tidal and
navigable river. The islands are within a short distance, much under 3 miles, of the
main land. The lands are now mostly jungle lands.

4. The Crown desires to constitute them into a reserved forest. The respondents object,
and claim the lands. Their assertion is that these lands have been possessed by them
and their predecessors in title from time immemorial, and that the lands are theirs.
This assertion of property the Crown denies.

5. By the Statute already named, it is provided (section 3) that the Governor in
Council may constitute any land at the disposal of the Government a reserved forest;
that he shall publish a notification (section 4) containing this declaration, specifying
"as nearly as possible the situation and limits of such land," and appointing a Forest
Settlement Officer "to enquire into and determine the existence, nature, and extent of
any rights claimed by or alleged to exist in favour of any person in or over" such land.
Provision is made (section 6) for requiring, within a period of three months from the
proclamation, every person claiming right "either to present to such officer within such
period a written notice specifying, or to appear before him within such period and state
the nature of such right, and in either case to produce all documents in support
thereof." Thereafter the Forest Settlement Officer is to enquire and to record evidence
(section 8). and (section 10) the Forest Settlement Officer "shall pass an order
specifying the particulars of such claim and admitting or rejecting the same wholly or
in part." If the claim be admitted, there are stipulated proceedings for the surrender,
exclusion or acquisition of the right. But section 10 (ii) "if such claim be rejected
wholly or in part, the claimant may, within thirty days of the date of the order, prefer
an appeal to the District Court in respect of such rejection only."

6. What happened in the present case was that the claim was rejected. An appeal by
the respondents was thereupon made to the District Court, and a decision was
pronounced. It was contended on behalf of the appellant that all further proceedings in
Courts in India or by way of appeal were incompetent, these being excluded by the
terms of the Statute just quoted. In their Lordships' opinion this objection is not well-
founded. Their view is that when proceedings of this character reach the District
Court, that Court is appealed to as one of the ordinary Courts of the country, with
regard to whose procedure, orders, and decrees the ordinary rules of the Civil
Procedure Code apply. This is in full accord with the decision of the Full Bench,
Kamaraju v. Secretary of State1 a decision which was given in 1888 and has been
acted on in Madras ever since.

7. It was urged that case of Rangoon Botatung Co. v. Collector, Rangoon2 enounced a
principle, which formed a precedent for excluding all appeal from the decision of the
District Court in such cases as the present. Their Lordships do not think that that is so.
In the Rangoon case a certain award had been made by the Collector under the Land
Acquisition Act. This award was affirmed by the Court, which under the Act meant "a
principal Civil Court of Original Jurisdiction." Two Judges sat as "the Court" and also
as the High Court to which the appeal is given from the award of "the Court." The
proceedings were, however, from beginning to end ostensibly and actually arbitration
proceedings. In view of the nature of the question to be tried, and the provisions of the
particular statute, it was held that there was no right "to carry an award made in
arbitration as to the value of land" further than to the Courts specifically set up by the
statute for the determination of that value.

8. The merits of the present dispute are essentially different in character. The claim
was the assertion of a legal right to possession of and property in land; and if the
ordinary Courts of the country are seized of a dispute of that character, it would
require, in the opinion of the Board, a specific limitation to exclude the ordinary
incidents of litigation. The objection taken is accordingly repelled.

9. Upon the undisputed facts as to the formation of these islands in the sea and in the
situation described, the case would appear to be the ordinary one described by Hale,
"De Jure Maris." He describes how

       "The king hath a title to maritima incrementa or increase of land by the sea; and
       this is of three kinds, viz. :-
       "1. Increase per projectionem vel alluvionem.
       2. Increase per relictionem vel desertionem.
       3. Per insuloe productionem."
10. The lands in dispute fall under the third category, which is thus dealt with by
Hale:-

       "3. The third sort of maritime increase are islands arising de novo in the king's
       seas, or the king's arms thereof. These upon the same account and reason prima
       facie and of common right belong to the king; for they are part of that soil of the
       sea, that belonged before in point of propriety to the king; for when islands de
       novo arise, it is either by the recess or sinking of the water, or else by the
       exaggeration of sand and slob, which in process of time grow firm land
       environed with water."
11. The date of formation of these islands is not certain. Plans have been produced
showing that from the forties to the sixties of last century they or the larger part of
them appeared above the surface of the water. At what date so ever they appeared,
they were in the high seas at a point thereof not far from the shore of the mainland,
and in these circumstances, in the opinion of the Board, they were Crown property.
12. The case is not complicated by any point as to geographical situation; the question
of whether a limit from the shore seawards should be beyond three miles, should be
the extreme range of cannon fire, or should be even more if the locus be claimed to be
intra fauces terrae - no such questions arise here. The point is geographically within
even three miles of British territory; at that point islands have risen from the sea. Are
those islands no man's land? The answer is, they are not; they belong in property to
the British Crown.

13. The doubt raised upon this proposition was substantially rested on certain dicta
pronounced in Reg. v. Keyn3 The Crown, admitted to be owners of the foreshore, is, so
the suggestion is, bounded in its dominion of the bed of the sea by the range of the rise
or fall of the tide. Crown property does not, it is said, extend further seaward. It should
not be forgotten that the Franconia case had reference on its merits solely to the point
as to the limits of Admiralty jurisdiction; nothing else fell to be there decided. It was
marked by an extreme conflict of judicial opinion, and the judgment of the majority of
the Court was rested on the ground of there having been no jurisdiction in former
times in the Admiral to try offences by foreigners on board foreign ships whether
within or without the limit of three miles from the shore.

14. When, however, the actual question as to the dominion of the bed of the sea within
a limited distance from our shores has been actually in issue, the doubt just mentioned
has not been supported nor has the suggestion appeared to be helpful or sound. Their
Lordships do not refer to the settlement of the rights of the Crown as against the
Duchy of Cornwall in the Cornwall case - but to much more recent examples of
contested rights in or over land ex-adverso of the foreshore.

15. In Lord Fitzhardinge v. Purcell4, Lord Parker, then Parker, J., expressed himself
thus :-

       "... Clearly the bed of the sea, at any rate for some distance below low-water
       mark, and the beds of tidal navigable rivers, are prima facie vested in the
       Crown, and there seems no good reason why the ownership thereof by the
       Crown should not also, subject to the rights of the public, be a beneficial
       ownership. The bed of the sea, so far as it is vested in the Crown, and a fortiori
       the beds of tidal navigable rivers, can be granted by the Crown to the subject.
       There are many several fisheries which extend below low-water mark or exist in
       the beds of navigable rivers. The whole doctrine of incrementa maris seems to
       depend on the beneficial ownership of the Crown in the bed of the sea, which in
       the older authorities is sometimes referred to as the King's royal waste. It is true
       that no grant by the Crown of part of the bed of the sea or the bed of a tidal
       navigable river can or ever could operate to extinguish or curtail the public right
       of navigation and rights ancillary thereto, except possibly in connection with
       such rights as anchorage when there is some consideration moving from the
       grantee to the public. It is also true that no such grant can, since Magna Charta,
       operate to the detriment of the public right of fishing. But, subject to this, there
       seems no good reason to suppose that the Crown's ownership of the bed of the
       sea and the beds of tidal navigable rivers is not a beneficial ownership capable
       of being granted to a subject in the same way that the Crown's ownership of the
       foreshore is a beneficial ownership capable of being so granted."
16. It is true that the case cited dealt merely with the right of fowling; but it was
necessary in the determination as to that right to settle the true nature of the right in
the land itself.

17. In Scotland the law is firmly settled, and in a similar sense. The question raised in
Lord Advocate v. Clyde Navigation Trustees5, was whether the latter body could
dispose of dredging taken from the river by depositing them in the bed of Loch Long,
a sea-water loch. The Crown resisted the claim, maintaining its ownership in the bed
of the loch and in the bed of the sea for a distance of three miles from the coast. In the
Outer House the entire question was fully dealt with by that very learned Judge, Lord
Kyllachy, who expressed himself thus :

       "... , with respect to the nature of the Crown's right in what is now
       acknowledged to be part of the territory of the kingdom, viz., the strip or area of
       sea within cannon-shot or three miles of the shore. Is the Crown's right in that
       strip of sea proprietary, like the Crown right in the foreshore and in the land? or
       is it only a protectorate for certain purposes, and particularly navigation and
       fishing? I am of opinion that the former is the correct view, and that there is no
       distinction in legal character between the Crown's right in the foreshore, in tidal
       and navigable rivers, and in the bed of the sea within three miles of the shore. In
       each case it is of course a right largely qualified by public uses. In each case it
       is, therefore, to a large extent extra commercium but none the less is it in my
       opinion a proprietary right - a right which may be the subject of trespass, and
       which may be vindicated like other rights of property."
18. In the Inner House this view of the law was not dissented from, and Lord Young
expressly agreed with it.
19. Last of all may be mentioned Lord Advocate v. Wemyss6. The action had reference
to the ownership of minerals in the bed of the sea and below low-water mark. This, of
course, was entirely a question - not as to rights upon or over that portion of the bed of
the sea, but as to the actual ownership of the corpus or thing itself - of which corpus
the minerals formed a part. Upon this question the statement of Lord Watson was
expressed as follows:-

       "I see no reason to doubt that by the law of Scotland the solum underneath the
       waters of the ocean, whether within the narrow seas or from the coast outward
       to the three-mile limit, and also the minerals beneath it, are vested in the
       Crown."
20. In the opinion of the Board, this is also the law of India. The Crown is the owner,
       and the owner in property, of islands arising in the sea within the territorial
       limits of the Indian Empire.

21. It should be added, with reference to the suggestion that the territory of the Crown
ceases at low-water mark, and that the right over what extends seawards beyond that is
merely of the nature of jurisdiction or the like, that there are manifest difficulties in
seeing what are the grounds for this in principle. There is nothing to recommend a
local jurisdiction over a space of water lying above a res nullius. As to practical
results, the confusion that might be produced by leaving islands, emergent within the
three-mile limit, to be seized by the first comer is clear beyond controversy. He might
be a foreign citizen : he would of course hoist the flag of his own nation, and that
nation might proceed to fortify the emergent lands; in short, it is not difficult to figure
the anomalies and difficulties which the abandonment of the plain ground taken by
Lord Watson would involve to this and to other nations.

22. The law in the sense now affirmed has not been denied effect in the Courts of this
country, even when its enforcement has operated to the advantage or supposed
advantage of foreign States. Lord Stowell dealt with such a position of affairs in "The
Anna,"7. The case had reference to the capture of a vessel while on a voyage from the
Spanish Main to New Orleans. The place of capture was two miles off certain islands.
Those islands, at the mouth of the Mississippi, were, much as in the present case,
formed by the silting up of sand and slob, but yet surrounded by navigable channels
and in the open sea. The case sought to be made was that such islands were no part of
American territory, and formed no datum for measuring the seaward mileage
therefrom. This argument was rejected. Lord Stowell observed :-
       "Consider what the consequence would be if lands of this description were not
       considered as appendant to the main land, and as comprised within the bounds
       of territory. If they do not belong to the United States of America, any other
       Power might occupy them; they might be embanked and fortified. What a thorn
       would this be in the side of America. It is physically possible at least that they
       might be so occupied by European nations, and then the command of the river
       would be no longer in America, but in such settlements. The possibility of such
       a consequence is enough to expose the fallacy of any arguments that are
       addressed to show that these islands are not to be considered as part of the
       territory of America. Whether they are composed of earth or solid rock will not
       vary the right of dominion, for the right of dominion does not depend upon the
       texture of the soil."
23. Their Lordships do not doubt that the general law, as already stated, is supported
by the preponderating considerations of practical convenience, and that, upon the
particular case in hand, the ownership of the islands formed in the sea in the estuary or
mouth of the Godavari river is in the British Crown.

24. In these circumstances the question before the Board would appear to be
extremely simple. Under the Indian Limitation Act no adverse possession can be
effectively pleaded against the Crown for a period of less than sixty years. The
question simply is: Do the claimants establish such adverse possession? If they do not,
the basis of their claim fails. This was the way in which the matter was looked at, first
by the Forest Settlement Officer, and then by the District Court. In their Lordships'
opinion the attitude of both these tribunals was correct in law.

25. Before the reversal of their decisions by the High Court is remarked upon, the
following facts may be noted.

26. It appeared that certain squatting had taken place, and that two Zamindars, whose
successors are respondents in this appeal, were rivals in seeking to set up some kind of
right in the islands. They did not arrive at any settlement of their disputes until in or
about the year 1882. The Forest Settlement Officer in the course of a careful
examination into the circumstances and rights, held that there was no evidence of
adverse and exclusive possession and enjoyment prior to 1883, and that accordingly
such possession and enjoyment so proved had not lasted long enough to establish a
right against the Government.

27. In the District Court the same result was reached and the same finding on fact was
made. The matter is accordingly concluded so far as possession goes; the Board
accepts, as it must accept, the finding. Confirmation of the District Court's judgment
would have followed that finding as a matter of course but for the view taken by the
High Court on a point of law. It is thus expressed:-

       "The District Judge then holds that as the title was originally in the Crown the
       claimants must prove adverse possession for sixty years. Here the District Judge
       is clearly wrong. Though the title was originally in the Crown, still, as the
       possession of the claimants for twenty years prior to the notification is found, it
       rests upon the Crown to prove that it has a subsisting title by showing that the
       possession of the claimants commenced or became adverse within the period of
       limitation, i.e., within sixty years before the notification Secretary of State v.
       Vira Rayan8, Secretary of State v. Bavotti Haji9 and Secretary of State v. Kota
       Bapanamma Garu10. As the several islands were formed gradually and probably
       appeared and became capable of occupation at different times, it may be that
       there is proof that some, if not all, of them came into existence as land capable
       of occupation within sixty years prior to the notification. In the case of such
       land the title of the Crown must be subsisting title. In the case of lands which
       came into existence as land capable of occupation more than sixty years prior to
       the notification, the Crown must show by evidence that it had a subsisting title
       at some time within that period.
       "We must, therefore, ask the District Judge to return a finding as to whether the
       Crown has subsisting title to the whole or any portions of the claim land lying
       between Hope Island on the north and Neelarva on the south."
28. Their Lordships are of opinion, that the view thus taken of the law is erroneous.
Nothing is better settled than that the onus of establishing title to property by reason of
possession for a certain requisite period lies upon the person asserting such
possession. It is too late in the day to suggest the contrary of this proposition. If it were
not correct it would be open to the possessor for a year or a day to say,

       "I am here; be your title to the property ever so good, you cannot turn me out
       until you have demonstrated that the possession of myself and my predecessors
       was not long enough to fulfil all the legal conditions."
29. Such a singular doctrine can be well illustrated by the case of India, in which the
right of the Crown to vast tracts of territory including not only islands arising from the
sea, but great spaces of jungle lands, necessarily not under the close supervision of
Government officers, would disappear because there would be no evidence available
to establish the state of possession for sixty years past. It would be contrary to all legal
principles thus to permit the squatter to put the owner of the fundamental right to a
negative proof upon the point of possession.

30. The application of this elementary doctrine is singularly clear, for there is a double
finding of fact, a finding not disputed even in the High Court, that no adverse or
exclusive possession was proved before the year 1882. The case of the respondents
must accordingly fail.

31. This conclusion is in no way varied by reason of the shape of the present
proceedings. In November and December 1901, in pursuance of the Act, the Governor
of Madras in Council published a notification proposing to constitute the lands into a
reserved forest. The respondents put in their claims before the Forest Settlement
Officer on the 14th and 23rd February 1902. It apparently did not occur to them at that
stage to view the law otherwise than has been stated above, because in the one petition
the claim was that-

       "For over seventy years your petitioner's estate has been in the exclusive and
       absolute enjoyment of the land and forest now said to be reserved as
       Government forest," and in the other petition the claim was-
       "that by the long and peaceful enjoyment of the same by the petitioners and
       their predecessors-in-title the petitioners have acquired a title by prescription to
       the said lands and forests, and the rights, if any, of others to the same are
       excluded by lapse of time."
32. In their Lordships' opinion objectors to afforestation thus preferring claims are in
law in the same position as persons bringing a suit in an ordinary court of justice for a
declaration of right. To such a situation in the one case, as in the other, their Lordships
think that article 144 of the Limitation Act XV of 1877 (Schedule II) applies, the
period of twelve years there under being, however, extended to a period of sixty years
by article 149. In an ordinary suit for a declaration it cannot be doubted that the onus
of establishing possession for the requisite period would rest upon the plaintiff. In their
Lordships' opinion the situation of a claimant under afforestation proceedings is the
same upon this point. Reference may be made to Radha Gobind Roy Saheb v. inglis
(Supra), decided by this board. Reference was made to various cases decided in lower
Courts and stress was especially laid upon the decision in the Malabar case, Secretary
of State v. Vira Rayan (Supra). The facts therein were essentially different from the
present. After a historical survey of the peculiar position of the lands there in question
the learned Judges found "That the land appertains to the district of Malabar, and we
agree with the Judge that there is no presumption in that district and in the tracts
administered as a part by it, that forest lands are the property of the Crown." The ratio
of the decision was found in this historical circumstance peculiar to Malabar. None of
the cases cited have affected the authority of Radha Gobind Roy v. inglis 33. Finally,
their Lordships have some difficulty in understanding the view of the High Court to
the following effect :-

       "Though the title was originally in the Crown, still as the possession of the
       claimants for twenty years prior to the notification is found, it rests upon the
       Crown to prove that it has a subsisting title by showing that the possession of
       the claimants commenced or became adverse within the period of limitation,
       that is, within sixty years before the notification."
34. In so far as this negatives the duty resting upon the claimants to establish
affirmatively their and their predecessors' possession for sixty years, their Lordships'
opinion is, as stated, that this is erroneous. But (2) with reference to the "subsisting
title," it appears to their Lordships that nothing further is needed than the
acknowledgment of the undisputed fact that these islands formed in the sea belonged
to the Crown. That fact is fundamental: until adverse possession against the Crown is
complete, that is to say, is for the period of sixty years, that fundamental fact remains,
and that fact forms "subsisting title." and (3) it is no part of the obligation of the
Crown to fortify their own fundamental right by any enquiry into possession or the
acceptance of any onus on that subject.

35. Their Lordships will humbly advise His Majesty that these appeals should be
allowed, and that the judgments of the District Court of date the 27th July 1904 should
be restored. The respondents will pay the costs of this appeal and in the Courts below.

Appeals allowed.

Cases Referred.

   1. [1888] 11 Mad. 309 (F.B.)
   2. [1912] 40 Cal. 21 : 16 I.C. 188 : 39 I.A. 197 (P.C.)
   3. [1876] 2 Ex. D., 63 : 13 Cox. C.C. 403 : 46 L.J.M.C. 17
   4. [1908] 2 Ch. D., 139 : 77 L.J.Ch. 529 : 72 J.P. 276 : 99 L.T. 154 : 24 T.L.R.

       564,
   5. [1891] 19 Rettie 174
   6. [1900] A.C. 48
   7. [1815] 5 C. Rob. 373
8. [1885] 9 Mad. 175

9. [1891] 15 Mad. 315

10.  [1895] 19 Mad. 165