TMI Blog1916 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mainland. 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 bean 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 parson in or over such land. Provision is made (Section 6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 She particular statute, it was held that there was no right to carry an award made in an arbitration as to the value of land further than to the Courts specifically set up by the statute for fee 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, Da 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 overland ex adverso of the foreshore. 15. In Lord Fitzhardinge v. Purcell (1908) 2 Ch. D. 139 at p. 166 , 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 is 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. In the Inner House this view of the law was not dissented from, and Lord Young expressly agreed with it. 18. Last of all may be mentioned Lord Advocate v. Wemyss (1900) A.C. 48 . 19. 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 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 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 Grown 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 Grown has subsisting title to the whole or any portions of the claim land lying between Hope Island on the north and Nealarva on the south. 27. Their Lordships are of opinion that the view thus taken of the law is erroneous. Nothing is better settled then 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. Such a si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing possession for the requisite period would rest upon the plaintiff In their Lordships' opinion the situation of a claimant under afforestation proceedings h the same upon this point. Reference may be made to Radha Gobind Roy Saheb v. Inglis (1880) 7 C.L.R. 364, 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 for India in Council v. Vira Rayan (1885) I.L.R. 9 Mad. 175 . 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. Inqlis (1880) 7 C.L.R. 364 . 31. Finally, their Lordships have some difficulty in understanding the view of the High Court to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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