1. This is a defendants' appeal.
2. The United Provinces Government filed a suit for possession of a piece of land described at the foot of the plaint, which, it is now admitted, is a part of a bigger plot No. 73 having an area of 3.73 acres and situate in Mohalla Naugaza in Muttra. The claim on behalf of the plaintiff is based on the ground that the land in suit had at one time vested in the Cantonment Board and on 23rd December 1881, the Cantonment Board had transferred this land along with other land to the civil authorities. Not much is known about the ancient history of this land except this that there are certain very old graves on this land, and at the time of the inspection the learned Civil Judge found one of the graves having an inscription of 11th century Hijri. There was a long grave on the spot known as 'Naugaza' and it is mentioned in one of the judgments that it was supposed to be the grave of one of the old giants in pre historic days who used to attain heights of about nine yards. Muttra was conquered by Lord Lake's army in 1803 from the Marathas and the British had a big cantonment there for several years. After the conquest in 1803 the plot No. 73 along with certain other plots were all included in the Muttra cantonment. Whatever rights the original owners of the plots had in the lands, after the conquest in 1803 their rights came to an end unless by an express or implied agreement the new Sovereign Authority had elected to respect and recognise and be bound by the previous rights : see Secretary of State v. Bai Raj Bai, 13 A. L. J. 953 : (A. I. R. (2) 1915 P. C. 59).
3. We do not know anything about this land till we come to the year 1877. In that year the cantonment authorities evidently wanted to build two bungalows. There were inquiries made through one Mr. Whiteaway, Settlement Officer, who prepared a register and a map of the Muttra cantonment. In that register he noted against each plot the names of persons who were in possession of the cantonment authorities. That register is not forthcoming and it is said on behalf of the plaintiff that the register has been destroyed. The map is, however, available. From the report of the Settlement Officer, Ex. 10, dated 23rd June 1877, as also from the inspection note of the learned Civil Judge it appears that there were a number of old graves on this plot. In his report the Settlement Officer classified the land under various heads and mentioned that there were enclosures with bungalows and buildings and there were enclosures without bungalows, and for these enclosures without bungalows rent was being paid to the military authorities in certain cases and no rent was being paid to the military authorities for others. For those for which no rent was being paid, he made inquiries as regards title and he found that there were some who were able to produce title deeds which had been countersigned by the military authorities, while there were others who, though they were in possession, were not able to produce any title deeds either executed or countersigned by military authorities. Those in possession of plot No. 73 came into this latter category, that is they were persona who were not paying rent to military authorities and were not able to produce any title deeds executed or countersigned by the military authorities. Mr. Whiteaway, however, mentioned that almost all the plots were in the possession of men who had been in possession for a very long time and it was not worthwhile to interfere with those items of property as it would give rise to a great deal of heart-burning. Evidently the properties were not of much value at the time, and the Settlement Officer did not consider it worthwhile that the Cantonment Board should take steps to assert its title and eject the persona who had ancient possession but were not able to produce their title deeds. In this document the names of those who were in possession of plot No. 73 were not given. The possession of such persons was, evidently, adverse as they were claiming to be the owners of the plot though, they were not able to produce any document of title countersigned by the military authorities.
4. In 1881 on 30th January a deed of agreement was executed by Lalla Shah and Husain Shah, who were brothers, who claimed that they had been in joint possession of the property and they had always been dividing the income and by this document they made arrangements, about the income and how it was to be dealt with by their descendants. This document does not give any period for which prior to 1881 the two brothers were in joint possession. The pedigree of their family is quoted in the judgment of the lower Court and it is not disputed. In 1885 Kallan Shah son of Husain Shah, made ft mortgage of a portion of this property. The property is said to be situate in the 'Naugaza' graveyard. After that there are a aeries of transfers, and the transfer that is being now challenged on behalf of the Government is the sale deed dated 7th January 1899, executed by Lila Shah, grandson of Lalla Shah and Mt. Mindia, daughter-in-law of Lalla Shah, of plot No. 73 in favour of Hafiz Mohammad Mohsin Khan. The vendee made a waqf of this property under a waqfnama dated 10th September 1917. Before he executed this waqfnama the vendee had the plot No. 73 in his share separated by Suit No. 3 of 1913 in the Subordinate Judge's Court, Muttra. A Commissioner was appointed who made a report dated 19th June 1914, and a decree was passed in accordance with this report on 7th September 1914. It is not necessary for us to discuss in detail the various documents executed by the descendants of Lalla Shah and Husain Shah relating to this property. There is a list given in the judgment of the lower Court. They had executed a very large number of documents from 1881 upto recent times in which they had asserted that they were the owners of the property.
5. The suit was filed in the year 1938 and it was claimed on behalf of the Government that they were the owners of this property and it was denied that the defendants had anything to do 'With it. On behalf of the defendants, certain witnesses were produced who have deposed to their possession for many more than sixty years before the date of the suit. We may discuss the evidence of some of them: Sheikh Abdul Rahman gave his ago as 76 years. He was for 22 years a members of the Municipal Board and he deposed that he had seen the Fakirs in possession of this land ever since he was ten or eleven years of age. No cross-examination seems to have been directed against this part of his statement. The next witness Daro is aged 85, and he too has stated that he had seen the possession of the Fakirs ever since he was aged 10 or 11. To the same effect is the evidence of Salgi, another witness who gave his age as 85 years. The last witness, Allah Din, is aged 70 years; and according to this witness the Fakirs have always been in possession of their land and he has memory of this from the time when he was thirteen or fourteen years old.
6. The position, therefore, is that, though on the conquest of Muttra, all private titles must be deemed to have come to an end, the British did not desire to interfere with private ownerships and allowed persons to remain in possession of land which was in their possession. It is true that this land was included in the Muttra Cantonment. But from the report in 1877 it is clear that only a part of the land within the Muttra Cantonment was in the occupation of the army, while the rest of it was in the possession of others who claimed title in themselves and some encroachments had been made over the plots which bad been in the possession of the cantonment authorities.
7. From the report of Mr. Whiteaway, made in 1877, and from the subsequent conduct of the Cantonment Board and the civil authorities in not interfering with the possession or with the ownership of the Fakirs, it may be implied that, the British Government did not want to dispossess and recognised the old rights of the Fakirs. It was not necessary in 1803 that there should be a written document executed by the Sovereign Authority transferring title to the occupiers.
8. Apart from that, we have the fact that the Fakirs had in 1877 set up, before Mr. Whiteaway, their claim that they were owners of the land though they were not able to produce any title deeds. Though Mr. Whiteaway's report does not mention the names of the Fakirs, since it has been mentioned in the report that the persons in possession had put forward their claim and from the oral evidence and other circumstances we have no doubt that the Fakirs were in possession of the land in 1877, we conclude that the Fakirs had claimed that they were the owners of this land. The claim made in 1877 was clearly adverse to the Cantonment Board. Mr. Whiteaway has said in his report that, though private persons had encroached on cantonment land in the past, by reason of the fact that he had prepared the map and register such encroachments would not be possible in future. This adverse possession, which started at least in 1877, must be deemed to have matured into full ownership before 1937. Between these years innumerable transfers were made by the Fakirs and in all of them they had asserted that they were the owners of the property. As a matter; of fact, the Government itself was a party to some of them. Land was taken on lease for the octroi out-post, and land was acquired under the Land Acquisition Act for the B. B & C I. Railway for which compensation was paid to the Fakirs. The Government's right to file the suit must, therefore, be deemed to have come to an end on the expiry of the sixty years period.
9. Learned standing counsel had admitted that there is no provision in the Cantonment Act or in the Limitation Act which prevents adverse possession running against a Cantonment Board. It is not, therefore, clear why the lower Court has said that the limitation could begin to run only after the land had been handed over to the civil authorities.
10. The appeal must, therefore, be allowed, the decree of the lower Court set aside and the plaintiff's suit dismissed with costs in both the Courts.