SYED ZAHUR UDDIN AHMAD Vs. CHIMMAN LAL

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a case brought against him by the plaintiff-respondent on behalf of the Hindu public of Mohallah Shahamatganj, Bareilly, with the permission of the Court for a declaration that the land in suit with the well in it was dedicated to the public in which the plaintiff and the Hindu public as a whole have got a customary right of easement of holding fairs, keeping water stalls and pitch shamianas for the comfort and benefit of the public and drawing water from the well, and for a mandatory injunction restraining the defendant from interfering with the rights of the public to draw water from the well and to worship the peepal tree and restraining the defendant from making any constructions on the land. The plaintiff claimed Rs. 10 for damages for two paker trees alleged to have been cut away by the defendant. The plaintiff's case was that about 80 or 90 years ago one Chhatoo Bhagat constructed the well in dispute which is known as Shero Wala Kunwa and dedicated it with the land attached to it for the benefit of the public on occasions of the fairs of Naryawal, Nekpur and Das- chia and other fairs, water stalls and shamianas were put up on the land for the comforts of the public. Chhatoo Bhagat also planted a peepal tree which has constantly been worshipped by the Hindus. The defendant has purchased the land from the Municipal Board and taking wrongful possession over it has started making constructions on it, thereby interfering with the customary right of easement of the public. The defendant contended that the land was never used for the purposes alleged by the plaintiff, that it belonged to the municipal board, Bareilly, that the defendant has purchased it from it and that the peepal tree had no concern with the land in suit. He also pleaded that the suit was barred by Section 41, T.P. Act. The learned Additional Munsif found that the well and the land attached to it had been dedicated by Chhatoo Bhagat to the public and it had been used by the public on the occasion of fairs for more than 60 years, that the public had acquired a customary right of easement in the land as well as for the use of the well, that the peepal and other trees were outside the land in dispute and that no tree was proved to have been cut away by the defendant in which the plaintiff could have any right. He also held that the suit was not barred by Section 41, T.P. Act. On appeal, the decree of the trial Court was confirmed by the learned Additional Subordinate Judge. The defendant has come here in appeal against the decree of the learned Additional Subordinate Judge.

(2.) It was argued by Dr. Katju on behalf of the appellant that accepting the findings of the lower Courts the plaintiff had no case. It has been found by both the Courts below that the well and the land attached to it was public property. Under Section 116(b), Municipalities Act, the well and the land attached to it vested in the Municipal Board and belonged to it. Section 116 lays down: Subject to any special reservation made by the Local Government, all property of the nature hereinafter in this section specified and situated within the Municipality shall vest in and belong to the board, and shall, with all other property which may become vested in the board, be under its direction, management, and control, that is to say (b) all public streams, lakes, springs, tanks, wells, and works for the supply, storage, and distribution of water for public purposes, and all bridges, buildings, engines, materials and things connected therewith or appertaining thereto, and also any adjacent land not being private property appertaining to any public tank or well.

(3.) The well and the land attached to it being the public property no doubt is covered by Clause (b), Section 116. Section 124 of the same Act gives power to the board to transfer any property by sale or exchange vested in it except the property held by it on any trust, the terms of which are inconsistent with the right to so transfer. Section 124, Clause (1) lays down: Subject to any restriction imposed by or under this Act, a board may transfer by sale, mortgage, lease, gift exchange or otherwise any property vested in the board, not being property held by it on any trust the terms of which are inconsistent with the right to so transfer.