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Judgment
The suit land was unassessed waste, part of the defendant''s village of Lakkarajupalle hamlet of Minagavalu. It was granted on dharkast in 1901
to the plaintiffs, ryots of Mahi Malur. They complain of obstruction and dispossession by the defendants and seek to recover it. The defendants in
their written statement do not set up title in themselves or adverse possession against the Government. They plead enjoyment of the land for
pasture from time immemorial and deny the right of Government to grant it on dharkast. The District Munsif decreed the plaintiff''s claim. On
appeal the District Judge has confirmed the Munsif''s decision. He came to the conclusion that most of the plots in dispute were pattah lands till
1873; that the defendants did not hold the lands for pasture from time immemorial or as of right against the Government, and that they had no rights
in unassessed waste against Government. The defendants appeal and set up various contentions. It is unnecessary to set them out at length, for we
are of opinion that the only plea that was raised in the written statement was as regards the right of pasture and that has been negatived by the
appellate Court., There being no plea of adverse possession it is unnecessary to consider the cases as to what would constitute possession
according to the nature and character of the property in question--see Lord Advocate v. Lord Blantyre (1879) 4 A.C. 770. Lord Advocate v.
Young : North British Railway Company v. Young (187) 12 A.C. 514 and Van Dismen''s Land Co. v. Table Cape Marine Board (1906) A.C.
Nor is it necessary to determine whether proof of possession for a certain number of years should not lead to the presumption of anterior
possession extending to more than the statutory period against the Government-see Sivasubramanya v. Secretary of State for India ILR (1885) M.
The Secretary of State for India in Council v. Nellakutti Siva Subramania Tevar ILR (1591) M. 101. There are no statutory provisions in this
Presidency as in Bombay with reference to the grazing rights of villagers over adjoining Government waste--see The Collector of Thana v. Bal
Patel ILR (1877) B. 110. Trimbak Gopal v. The Secretary of State for India ILR (1898) B. 684. It is, however, contended that the defendants
have acquired a right of pasturage over Government waste, and reference is made to the passage at page 221 in The Secretary of State for India
v. Mathurabhai ILR (1889) B. 213 where Chief Justice Sargeant speaks of "" the right of free pasturage, which certain villages enjoy according to
the recognised custom of the country.'''' But the learned Chief Justice proceeds to qualify this recognition of such a right by the statement that the
right is not necessarily conferred on a particular piece of land but may merely amount to having sufficient land set apart for the purpose of the
village. Nor can it be said that the right of pasture excludes the owner''s right to the possession and enjoyment of the property over which such a
right may exist--see Rama Saran Singh v. Birju Singh ILR (1896) A. p 172. It may, perhaps, be doubted whether in the case of Government
waste where the owner has no use for the property and is not present on the spot to resist any acts of trifling enjoyment on the part of another see
Lord Advocate v. Lord Blantyre (1879) 4 A.C. 797 the mere pasturing of cattle by the adjoining ryot would amount to an enjoyment as of right so
as to create a presumptive title--see Wali Ahmed Chowdhry v. Tota Mea Chowdhy ILR (1903) C. 405. We do not think we have sufficient
materials in this case to enable us to determine the question whether the defendants have acquired a right of pasture and, if so, on what extent of
the suit land. The plaintiffs are clearly entitled to possession. We dismiss the second appeal with costs.