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Judgment
The suit land was unassessed waste, part of the defendant''s village of Lakkarajupalle, hamlet of Minagallu. It was granted on darkhast in 1901
to the plaintiffs, ryots of Mahimalur. 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 darkhast. The District Munsif decreed the plaintiffs'' 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, however, Lord Advocate v. Lord Blantyre (1879) 4 A.C. 770, Lord
Advocate v. Young, North British Railway Company v. Young (1887) 12 A.C. 544, and Van Diemen''s Land Co. v. Table Cape Marine Board
(1906) A.C. 92. ""Nor, is it necessary to determine whether proof of possession for a certain cumber 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
(1886) Mad. 285. The Secretary of State for India in Council v. Nella Kutti Sivasubramania Tevar ILR (1892) Mad. 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 (1878) Bom. 110, and Trimbak Gopal v. The Secretary of State for India ILR (1897) Bom. 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
case of The Secretary of State for India v. Mathurabhai ILR (1890) Bom. 213, where Sargent, C. J., speaks of ""the right of free pasturage, which
certain villages enjoy according to the recognized 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 Ram Saran Singh v. Birju Singh ILR (1897) All. 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. 770) the mere pasturing of cattle by the adjoining ryot would amount to an
enjoyment as of right so as to create a prescriptive title (see Wali Ahmed Chowdhry v. Tola Meah Ghowdhry ILR (1904) Cal. 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.