1. This is a second appeal by the defendants against a decision of the Additional Civil Judge of Bulandshahr. The plaintiffs who occupied a house in Khurja brought a suit against the defendants alleging that they, the plaintiffs, in a wall of their house had three barred openings (janglas) which had been in existence for a long time so that there was a right of easement of light and air but the defendants had now erected a wall so as to prevent the air and light reaching those janglas. The defendants in the written statement alleged that they were lessees, the lessor being the Crown, so that the plaintiffs in order to have an easement as regards their janglas had to establish peaceable enjoyment without interruption for 60 years and not 20. The statement of the counsel for the plaintiffs was then taken and he said that the enjoyment had continued for more than 60 years. It was the plaintiffs who claimed the right of easement and therefore they had to establish that under Section 15, Easements Act, they had that right, that is to say, they had to establish user for not less than 60 years in which ease it was immaterial whether the land was the property of the Crown or of a private owner or they had to prove that it was not Crown land so that user of 20 years was sufficient.
2. It appears to me that the statement of the counsel for the plaintiffs, though not expressly admitting that this land was Crown land, did so by implication for he represented his case as being that there had been user for 60 years, not that user for 20 years was sufficient because the land was not Crown land. It would have been proper in view of these pleadings to have framed an issue which made it clear that the plaintiffs to succeed had to prove user of 60 years and not 20. Unfortunately, the issue on this point was vague. It was as follows:
How old are the disputed janglas? Have the plaintiffs an easement of light and air through them from defendants' sight?
3. Dealing with this issue the first Court in its judgment after considering for how long the janglas had been proved to exist considered the next question whether the plaintiffs had acquired any easement of light and air. It found that the land was nazul and therefore 60 years user had to be proved. The only piece of evidence it referred to was a judgment between the Secretary of State and a former occupier of the land. It may well be that although the issue which I have quoted above was vague the Court remembered the statement of the plaintiffs' counsel and merely mentioned that as it was nazul land, user of 60 years was required and it had not been proved. The suit was dismissed with costs and an appeal was filed. On this point the relevant paragraphs in the memorandum of appeal are as follows:
2. That the learned lower Court has erroneously applied the limitation of 60 years to the case.
3. That the defendants have utterly failed to prove the time when the land of the defendants' house was converted into a nazul land.
4. That the lower Court while admitting the janglas of the plaintiff's to be more than 20 years old erred in law in dismissing the suit.
4. It was not alleged in this memorandum of appeal that the land was not nazul land at the time that the suit was brought but that the defendants had failed to prove for how long this land had been nazul land before the suit was instituted. One is left to conjecture what argument the learned counsel who framed the memorandum of appeal meant to rely on, but I would hazard a guess that he was going to urge that the right of easement was acquired, in the absence of evidence to the contrary, before this land had become nazul property. I find it difficult to understand, considering where the burden of proof lay, why it was the defendants who should have established that there was no easement instead of the plaintiffs establishing that there was an easement. The one point however which seems to me clear beyond all possibilities of doubt is that at the time that this memorandum of appeal was prepared there was no intention of urging that this land was not nazul at the time that the suit was brought and, therefore, it was sufficient to prove user for 20 years. In the appellate judgment the learned Civil Judge mentioned two points as being points for decision in the appeal and the relevant one was stated as follows:
1. Whether the land in possession of the defendants belonged to the Municipal Board of Khurja or the Secretary of State for India-in-Council and whether the plaintiffs had acquired a right of easement by user of 20 years or 60 years.
5. I cannot see how this point for decision arises from the memorandum of appeal which apparently the learned Judge did not keep before his sight. The learned Judge considered the evidence which, I may say, was evidence produced by the defendants to support their allegation that the land was nazul and did not consider any evidence of the plaintiffs on this point for there was none. The only document produced by the plaintiffs was a sale deed in their own names which had nothing to do with whether the land occupied by the defendants was nazul or not. The learned Civil Judge referred to the 30 years' lease in favour of defendant 2, which is Ex. E-2, as being a lease from the Municipal Board of Khurja. The very beginning of this lease should satisfy anyone that read it that it was not a lease given by the municipality for the lease begins as follows:
This indenture made the second day of October 1935 between the Secretary of State for India-in-Council (hereinafter called the Secretary of State of the one part . . . ).
6. The Secretary of State for India-in-Council is obviously a very different entity from the Municipal Board of Khurja. The learned Civil Judge says that this lease was given by the Collector in charge of the municipality as is shown by the signature. The signature is 'D. S. Baron, District Magistrate Buland-shahr, in charge of Khurja Municipality Administration.' It does not follow, however, that the person who executes a lease of certain property is the owner of the property for he may be an agent of the owner who has a right to give the lease and this is exactly the situation in the present case. There are certain rules called the Nazul Rules which are to be found in paras. 1803 to 1814 of the Manual of Government Orders, Vol. 2, which make the situation clear. When nazul is entrusted to the management of municipal boards and notified or town areas, the transfer of management confers no proprietary right in property. The board must submit proposals to lease nazul either to the Collector, the Commissioner or the Government, according to the amount involved and the terms of lease as finally arranged must be submitted to one or the other of those authorities. The lease is, however, executed by the municipal board as agent of the Government that remains the owner. The position is made clear not merely by those rules but by the Municipalities Act itself. The learned Civil Judge has referred to Section 116 but unfortunately there is some omission in the sentence which he has written which makes it difficult to understand what he meant. It looks as if he thought that unless there was any special reservation made by the Local Government all nazul, that is to say all Government land within a municipal area, vested in the municipality. Under Section 116 property which vests in a municipality is described in paras, (a) to (g). Paragraph (f) is the relevant one and reads as follows:
All land or other property transferred to a Board by His Majesty or by gift, purchase or otherwise for local public purposes.
7. It is obvious that the meaning of this is that land the proprietary right in which is transferred to a board by His Majesty vests in the board, for there is no transfer of the land in favour of a person who is merely appointed to manage that land on behalf of the owner. The learned Civil Judge then says the term 'nazul land' does not mean land belonging to the Government. It can as well mean the land belonging to the Municipal Board.
8. I do not know on what this assertion is based. If it means that some persons call municipal board land nazul this does not create nazul municipal board land. If 'this is intended to mean that legally nazul is municipal board land and vice versa, it is not the correct exposition of the law. Finally, the learned Civil Judge says that the statement of the nazul clerk of the municipal board does not carry the matter any further. This nazul clerk distinctly says that the land occupied by the defendants is nazul land and there is no reason for suggesting that when a nazul clerk says that land is nazul he means that it is land belonging to the municipal board. He obviously must know the difference, even if there are any persons who do not do so. Really the point on which the appeal was allowed should never have been argued in the appeal before the learned Civil Judge. It was the case of the plaintiffs, as is shown by the statement of their 'counsel in the first Court, that they had been users of the land for 60 years, not that they had been users for 20 years and it was sufficient. I have already shown that it was never urged in the memorandum of appeal that the land was not nazul at the time that the suit was filed but merely that there was no, evidence to show for how long it had been nazul. Even, however, if it had been open to the counsel for the appellants to argue that the land was not nazul, the evidence has been misrepresented by the learned Civil Judge. It is difficult to see what more the nazul clerk had to do than to say that the land was in fact nazul and it is perfectly clear that , this lease was given on behalf of the Secretary of State for India-in-Council and not on behalf the municipal board at all.
9. Learned Counsel for the respondents has urged that the decision of the Court below is a decision on facts which cannot be questioned in second appeal. If a decision on facts is reached at by disregarding the provisions of law such as for instance by saying that certain papers on the record are something which they obviously are not, there is an obvious mistake of law just as there is a mistake of law if a decision on facts has been arrived at on evidence which was inadmissible. This being so, this second appeal was competent. The decision of the learned Civil Judge is incorrect and I therefore allow this appeal and restore the decision of the first Court dismissing the suit with costs in all Courts. (Leave to appeal under the Letters Patent is refused).