1. This suit is brought by Lallu and Murli Dhar, two brothers, for the relief that, by a declaration of the rights of the plaintiffs and removal of the illegal interference offered by the defendants and the invalidation of the orders of the Municipal Board of Cawnpore, a decree may be passed in favour of the plaintiffs allowing them to sit whenever they please at their old seats mentioned below at the Sarsaiya ghat on the bank of the Ganges in the city of Cawnpore to attend to their jajmans at the time of bathing and other religious performances, and to receive their dues and presents, &c, as usual from them with their consent.
2. The plaintiffs are Gangaputras, and have no doubt themselves; as have, it is alleged, their ancestors, exercised their functions upon the Sarsaiya ghat. Others of the same class have done the same. What they claim is a right as Gangaputras to occupy to the exclusion of all other persons certain particular defined and measured spots upon the ghat. Their claim is based exclusively upon prescription. The defendants are the Municipal Board of Cawnpore, and, in the absence of proof to the contrary, must be presumed to have been acting within their jurisdiction in relation to the matters complained of, unless their right of control and interference is limited by some right acquired by the plaintiffs. No argument has been addressed to us questioning their general jurisdiction. The history of the ghat is not absolutely clear, but this much we can gather from the pleadings and the admissions of the parties, that there has been at some time, probably remote, a dedication of the ghat to the use of pilgrims desiring to perform their spiritual ablutions in the sacred river. Beyond doubt for the proper performance of those ablutions and accompanying ceremonies the services of Gangaputras would be required. We have nothing before us to show that the plaintiffs claim any interest in the soil upon which the ghat stands. Their allegation amounts simply to this:–“We and our ancestors as Gangaputras, and for the performance of our functions of Gangaputras, have continuously and for an indefinite time occupied, to the exclusion of all other Gangaputras and of all other persons whatsoever, the particular spots which we claim. We are, therefore, they say, entitled as of right now and in the future to use those spots as we have done heretofore.” It was upon that ground that the Subordinate Judge in appeal decreed their suit, which had been dismissed upon the ground of limitation in the Court of First Instance.
3. The judgment, the appeal against which we are now hearing, is one of the most inadequate and perfunctory performances that has ever come before us. It deals with and discusses none of the questions of law, serious and important as they are, raised in this case. It assumes that the user alleged by the plaintiffs would, if proved, be a sufficient basis of title in the present and for the future. The defendants in their written statement alleged, and it is nowhere denied, that the land of the ghat belongs to Government, and that the management and protection of such lands as are situate within the limits of the Municipality are under their control. The interference of which the plaintiffs complain was, the defendants allege, an arrangement by them of the seats to be occupied by the Gangaputras at such places as the defendants thought proper, and they contend that the plaintiffs have no right to object to such arrangement.
4. The defendants also, in answer to the claim by virtue of prescription, allege that the plaintiffs have not had uninterrupted user or user, as of right, upon the ghat, but that such user has periodically been prohibited by them one day per year from 1870 up to the present date.
5. That is one of the important pleas which appeared unworthy of the notice of the Subordinate Judge, and yet, if that were established, coupled with the absence of proof that such interruption had ever been contested by any person interested, the strongest presumption would have been raised that the occupation by the plaintiffs of the part of the ghat occupied by them was permissive only and was not an occupation as of right. Indeed, it would have been possible upon that single plea to have dismissed the suit of the plaintiffs. There are, however, questions raised in this case of larger scope, which may well be decided in this appeal, inasmuch as they may affect other similar claims in which particular incidents to be found in this case are absent. It is only fair to say that Mr. Moti Lal, for the respondents, frankly admitted that the claim of the plaintiffs could not in point of law be desoribed as an easement. It is enough therefore to say that, inasmuch as the claim of the plaintiffs was not based upon any allegation of right either in the soil of the ghat or in any other soil to which their user of the ghat was appurtenant, and inasmuch as neither the English nor the Indian law recognizes such a right as an easement in gross, the plaintiffs have to establish their claim upon some other basis.
6. Mr. Moti Lal contended then that the right of the plaintiffs was of the nature of a customary right and fell within the scope and meaning of Section 18 of the Easements Act of 1882. We fail to see the applicability of that section to the facts of the case. The illustrations given both imply some right of ownership, occupation or habitation of some particular place. A number of cases have been brought to our attention, of which perhaps the most important one is that of Tyron v. Smith 9 A. and E., 406. That was a suit in which the lord of the manor sued in trespass a person who had erected or begun to erect a booth upon some part of his estate. The defendant’s statement was, put shortly, that by ancient custom a public fair was held upon that manor, and that for the convenience of persons requenting it all. victuallers were allowed from time immemorial to erect booths for the supply of refreshments. It was held that the custom had been proved and that it was a reasonable custom. That case in no way helps the contention of the respondent. The right pleaded was really the right of the public to have stalls erected for their refreshments and not an exclusive right claimed by one of the victuallers to occupy any particular spot. And it may be taken generally that the English law recognizes no right of the nature of easements, and not being easements, other than public as distinct from private rights, though such rights may be limited to the inhabitants of a manor or township, but within that limit they are publici and not privati juris. In the present case it appears manifest, indeed it is not denied, that the dedication of the ghat must have been a dedication to the use of the public desiring, according to their religion, to use the water of the river, and such right conveyed by such dedication does not seem to carry with it any restriction upon the number of Gangaputras who might wish to perform their functions upon their disciples, nor does it imply a right of any particular Gangaputras to occupy to the exclusion of other Gangaputras any particular spot. A case has been decided in this Court by two Judges which seems to us a sufficient authority for the contention of the appellants in this appeal. It is the case of Husain Ali v. Matukman I.L.R. 6 All. 39. The plaintiff’s suit in that case was dismissed on the ground that no right of any sort to the soil of the ghat or any portion thereof was asserted by the plaintiff or shown. The dictum, broadly laid down, is in our opinion equally applicable to the facts of the present case, which do not substantially differ from those of the reported case. Now in this case also no right to the soil of the ghat or any portion thereof is asserted by the plaintiffs or shown, and under such circumstances, following the decision above cited, we hold that the plaintiffs cannot maintain a claim to the exclusive use of the ghat for the purpose of collecting alms or fees to the exclusion of other persons. The ratio decidendi in Husain Ali v. Matukman appears to us open to no exception. It matters not in our opinion that the claim in this case refers only to a part of the ghat, and that opinion is amply supported by authority. I see no reason to find that there is any difference in principle between the dedication of a ghat to the public use and the dedication of a high road. It has been held, and the principle appears indisputable, that where a dedication has been established of a high road and where a portion only out of the land so dedicated bas been used for that purpose, no person could by occupation or other user of any part of the road establish a right as against the public over any part of the land, even had it never been used for the purpose for which it was dedicated. I refer to Turner v. Bingwood Highway Board L.R. 9 Eq., 418. That is a decision of one of the most eminent Judges of the century, and the judgment itself is founded upon reasoning which has been, as far as I know, universally applied in all cases of this kind. Now here the dedication to the public could not be limited by invasion of any of the members of the public, nor could they by such invasion, however prolonged, gain for themselves a title to the land or to the exclusive user of the land which was the subject of the invasion. And the reason is manifest, that such user by them was a licensed. user; they had a right to be there, but their right of user could carry with it no right to exclude other persons–Gangaputras, pilgrims or others, for whose use the ghat had been originally dedicated.
7. The result is that I would allow this appeal, and, reversing the decision of the Lower Appellate Court, dismiss the suit of the plaintiffs with costs
8. I concur in thinking that this appeal must be allowed. The learned advocate who appears on behalf of the respondents admitted that the right claimed by the plaintiffs, his clients, was not an easement; he said that, f put to a definition, he would describe it as an assertion of a oustomary right. But the relief which the plaintiffs asked for and the decree which they have obtained amount to much more than this. The decree gives them possession of certain spots on a public ghat to the exclusion of all other members of the public. No instance of such a relief having been granted has been cited to us. There are, it is true, cases in which plaintiffs have successfully asserted a title to enjoy customary rights, but the decrees in those cases did not interfere with the enjoyment of the other members of the public or section of the public entitled to the customary right. In my opinion this case is not distinguishable from the case of Husain Ali v. Matukman I.L.R. 6 All. 39, which, as my brother Blair has shown, is in accord with the law as laid down in England. I concur in the decree proposed.
9. The decree of the Court is that the appeal is allowed, the decree of the Lower Appellate Court is set aside and that of the Court of First Instance restored. The appellants will have their coats here and in the Lower Appellate Court.