VIBUDAPRIYA THIRTHASWAMY Vs. ESOOF SAHIB

JUDGEMENT

(1.) The plaintiffs are trustees of a Hindu temple. They have instituted the action to restrain the defendants who represent the Muhammadan inhabitants of Udipi by means of a permanent injunction from marching in procession through the portions marked IIIa and IIIb in the plan (exhibit WWW). The Subordinate Judge has given them a decree as prayed for as regards IIIb. The defendants made no claim to go in procession along IIIb, and as the respondents in the appeal before us no attempt was made by them to object to that portion of the decree. As regards IIIa the Subordinate Judge has restrained the defendants from going in procession with music and reciting prayers while religious worship is going on in the plaintiff's temple. Mr. Sundara Ayyar who argued the case for the plaintiffs who are the appellants before us did not contest the right of the defendants to go in precession along IIIa, But he argued against their right to go in procession with music or repeating prayers at any time along IIIa whether worship was or was not; carried on in the Hindu temple. Mr. Naraina Rao for the respondents objected to the Subordinate Judge's decree restricting their right to go with music and reciting their prayers to hours when there was no worship going on in the Hindu temple. The right to go in procession with music was the principal bone of contention before us. No serious effort was made to impugn the finding of the Subordinate Judge that IIIa belongs to the temple. We are not prepared to dissent from that finding In addition to the evidence detailed by the Subordinate Judge, we may advert to the fact disclosed by the plan and the evidence of the plaintiff's witnesses No?. 2 and 4 that there are traces of an old temple wall outside the limits of the street in question and on three sides of it.

(2.) Starting then from the position that the subsoil of IIIa vests in the temple, the next question is what rights the public have over the surface. IIIa is a part of the big trunk road leading from Mangalore to Kalyanpur. It was the only road between those places till the coast road was opened less than forty years ago according to the plaintiff's second witness. It is not in evidence when IIIa was laid out. Its origin is lost in antiquity. The public has used if as a thoroughfare from time immemorial. Dedication must be presumed from the user as a highway who ever was the owner of the soil at the time of the defdocation Regina y. East Mart Tything (1848) 17 L.J. Q.B., 177, Regina V/s. East Mart (1816) 75 R.R. 653 and Turner V/s. Walsh (1881) 6 A.C. 636 decide that the crown is no exception There is no evidence in this case of dedication by the trustees of the temple. The general prima facie presumption of law in England is that the freehold of the road ad medium filum is in the proprietors of the land on either side [see Hagh V/s. West (1803) 2 Q.B., 19 at p. 29 and London and North Western Railway V/s. Westminster Corporation (1902) 1 Ch., 269) and that when the road was originally formed the proprietors on either side each contributed a portion of his land for the purpose Holmes V/s. Bellingham (1859) 29 L.J.C.P., 132 at p. 134 and In re Whites Charities, Charity Commissioners V/s. Mayor of London (1898) I Ch., 659 at p. 666. This rule is carried so far in England as to raise the presumption that the waste land on each side of the road is the property of the adjoining owners. Steel Vs. Prickett (1819) 20 B.R., 717 and Doe dem Pring and Anr. V/s. Pearsey (1827) 7 B. & C., 301. These presumptions are based upon the fact that property in laud vesta in private owners. Dadication therefore of a highway under the Common Law arises by the act of the private owner of the soil. It may be open to question how far these principles have any application to India where it is not the accepted theory that the property in land for which patta is issued is in the grantee of the patta from Government more than in the Government itself. [See however Mobaruck Shah V/s. Toofany (1879) I.L.R. 4 Calc. 206 and Balbir Singh V/s. The Secretary of State for India in Council (1900) I.L.R. 22 All. 96]. In the case of waste lands at all events not included in a patta in ryotwari tracts the property has unquestionably been treated as vesting in the Government. There is no reason to suppose that the dedication of IIIa was originally made by the trustees of the temple rather than that a common owner of the site of the temple and of the road founded the temple and give it the site and dedicated the highway to the public. The argument of Mr. Sundara Ayyar assumed that the trustees of the temple must have dedicated the highway. He then proceeded to contend that it was upon the defendants to show that the dedication was unrestricted, i.e., without any reservation, that an unrestricted dedication ought not to be presumed as that would be con to the powers of trustees of a Hindu temple who could not make grant injurious to the interests of the temple and that if there was a dedication without reservation, it would be invalid as contravening the purposes of a Hindu religious foundation like the temple in question. Although the nature of the user is the only basis a for determining the extent of the dedication, a general user in the case of a Public highway would throw the burden of Proving the reservation upon the person contending for it the law would not restrict the public to the exact mode of user of which there was evidence requiring the party pleading an unrestricted right to establish it. In Ballard V/s. Dyson (1808) 9 R.R., 770, Chief Justice MANSFIELD distinguishing between a public highway and a private way, observed that in general a public highway is open to cattle, though it may be so unfrequented that no one has seen an instance of their going there; but the presumption would be for battle as well as carriages, In the case of a private way however he was of opinion that when there was no grant, usage alone indicated the extent. Although it seems to be the better opinion at the present day that there may be a partial dedication of a highway, limited as to time or as to the extent of the user though not to a part of the public [see Glen on Highways, pp. 38 and 89; Pooh V/s. Huskinson (1833) 63 R.R., 782 and the Marquis of Stafford V/s. Goyney (1827) 7 B. & C., 257 there is no instance in which the public being entitled to use the highway at all times and men and cattle and carriages being entitled to pass and repass, any restriction was imposed on the manner of passing along the highway. It is true a highway is for passing and repassing and it may amount to a trespass to use it for other purposes. See Begina V/s. Pratt (1855) 99 R.R., 792, Harrison V/s. Duke of Rutland (1893) 1 Q.B., 142 at p. 149, Hickman V/s. Maisey (1900) 1 Q.B., 752 at p. 755. Mr. Sundara Aiyar has not attempted to argue that marching in procession is an excessive use of a highway. That question notwithstanding the observations of Mr. Justice Bhashyam AyyangaR and Mr. Justice Subrahmania Ayyar in Vijiataghava Chariar V/s. Emperor (1903) I.L.R. 26 Mad. 654 must now be deemed to have been set at rest by the decision of the Privy Council in Sadagopa Charior V/s. Krishmmoorthy Rao (1907) I.L.R. 30 Mad. 185 (P.C), approving entirely of the judgment of this Court in Sadagopaahariar V/s. Rama Rao (1903) I.L.R. 26 Mad. 376, And the two cases of Kandasami Mudali V/s. Sulroya Mudali (1909) I.L.R. 32 Mad. 478 and Mannada Mudali V/s. Nallaya Gounden (1909) I.L.R. 32 Mad. 527 are explicit upon the point. The presumption of the complete dedication was affirmed in Mannada Mudali v. Nallaya Gounden (1909) I.L.R. 32 Mad. 527 by Benson and Sankaran-Naib, JJ., when they said "there is no evidence as to the origin of the user nor is there any evidence that the dedication was subject to any conditions." Dedication would be assumed if dedication was possible. Farquhar V/s. Newbury Rural Council (1908) 2 Ch. 586. Where there has bean a general user by the public a dedication without reservation would be presumed if that was possible. Mr. Sundara Aiyar's contention that a dedication without reservation cannot be presumed to have been made by the trustees of the Hindu temple has not been supported by references to the ceremonial or ritualistic practice of Hindu temples. If a rival sect marching in procession with music on the highway would be contrary to the religious usages of the adjoining temple, there is no authority for presuming a dedication restricted in respect of processions with music. It has undoubtedly been held that property vested in trustees cannot be presumed to have been dedicated as a highway where such dedication would be contrary to the purposes of the trust. See Bex V/s. The Inhabitants of Leake (1833) 39 R.R., 521 at p. 529 and Neaverson V/s. Peterborough Rural Council (1902) 1 Ch., 557 at p. 573 and Pratt on Highways, p. 23. But that is not sufficient to justify a conclusion of no dedication when the user as a highway, for all purposes is established and objection is taken only to processions with music as opposed to the religious usages of the temple. It is enough however to say that as no evidence has been adduced in this case that the procession with music of the Muhammadan inhabitants would contravene the purposes of the trusts of the Hindu temple there is no impediment to the presumption of a dedication by the trustees of the highway unrestricted as to the mode in which the procession might be carried, But as pointed out already we are not obliged by any evidence in the case to suppose that the high way was dedicated by the trustees of the temples. If it was not, no question of the legality of an unreserved dedication can possibly arise. It follows that the Subordinate Judge was wrong in granting, the injunction as regards III-A. We must therefore dismiss the appeal with costs and allow the memorandum of objections in part by dismissing the suit as regards the injunction granted in respect of III-A. But as the respondents have partially failed with reference to the memorandum of objections we make no order as to costs, in regard to it. Wallis, J.

(3.) I agree and will only add that, if it were proved that an unrestricted dedication by the trustees would be illegal--which has not been proved here--then a prosumption in favour of a restricted dedication might arise as in Grand Junction Canal Company V/s. Petty (1888) 21 Q.B., 273, but before such a presumption could be raised, I think an illegality of the kind suggested would have to be clearly proved.