MUNICIPAL BOARD Vs. MTRAM SRI

JUDGEMENT

(1.) This appeal arises cub of a suit for a declaration of title and for damages instituted by the respondents against the Municipal Board of Etawah under the following circumstances. There is a piece of land which has been painted red on the plan prepared in the Court below by the Court amin. The plaintiffs case was that plaintiff 1 was the owner of the land and she had on that plot four small shops fetching a rent of about Rs. 80 a month. Plaintiff 2 is her lessee. The shops were burnt down in June 1926 and the land was laid vacant. The plaintiffs made an application to the Municipal Board for permission to build again on the land, but this permission was refused on 27 August 1926 on the ground that the Municipal Board was the owner of the land and not the plaintiffs. The plaintiffs accordingly asked for a declaration that they were the owners of the land in suit. They also asked, as already stated, damages on the ground that having been not allowed to rebuild the shops they had been losing Rs. 80 a month as rent. The Municipal Board contested the plaintiffs right to the land in suit, and they contended that it was a part of land belonging to the Municipal Board. Indeed, it stated that the land in suit was a part of the main street, the land in question being only a part of the pavement which ran alongside of the main street, and was meant for the pedestrians to walk upon. The learned Subordinate Judge, who heard the case at length, came to the conclusion that the plaintiffs had established their right to the land. He found that when the shops existed on the spot they were four in number and they fetched a rent of Rs. 73 per month. He also found that since the shops had been burnt down, the rent had gone up and it was but a fair estimate of the rent of the shops that could be built on the land to say that they could fetch Rs. 80 per month. The whole suit was accordingly decreed.

(2.) Before us it has been contended that the respondents have failed to prove their title. We have been taken through the entire evidence on the record which is largo. We shall notice only such of the documents as we consider to be very pertinent to the case.

(3.) To start with, the plaintiff produced a sale deed in their favour dated 21st December 1871. By this document one Durga Prasad, by whose name the local bazar goes, professed to sell two shops to a predecessor-in-title of plaintiff 1. According to the boundaries of these shops, they extended right to the main street. If there was any ambiguity in the sale deed, they are clearly removed by the subsequent conduct on the part of the owner and his tenants. We find that as early as in 1880 one Jagannath, being a tenant of the land in suit, applied to the Municipal Board for permission to build up a tiled shed : see p. 55 of the record. Shortly after this he again applied for permission to build what has been described as a " khirki." It appears that Jagannath wanted to construct a cellar beneath the land in suit, because he wanted some place to keep his cloth. This permission was given. We find that as a matter of fact there is a cellar beneath the land in suit, and the door which leads to the cellar is shown in the map prepared by the amin. On behalf of the appellant it was contended that this cellar must have been constructed without permission from the Municipal Board, but we do not consider that the suggestion is correct. The Municipal Board gave its sanction by the order printed at p. 59. Thus we find that since 1880 at any rate plaintiff 1 and her predecessors and her tenants have been occupying the land in suit with the permission of the Municipal Board and in open defiance of anybody else's title and right. A large number of rent-notes have been produced to prove that the shops on the site were occupied by tenants of plaintiff 1 from time to time.