Ganga Nath, J.
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.
4. It cannot be said that the well and the land in dispute was held by the board in trust inasmuch as no trust was created. The Municipal Board assumed ownership not under any trust but under Section 116(b), Municipalities Act. The other section which restricts the powers of the Municipal Board is Section 119, Municipalities Act which relates to public institutions. Section 119(3) lays down:
All property, endowments, and funds belonging to any public institution vesting in, or placed under the management, control and administration of a board shall be held by the board in trust for the purposes to which such 'property, endowments, and funds were lawfully applicable at the time when the institution became so vested or was so placed.
5. The land and the well in dispute do not belong to any public institution and therefore Section 119(3) also does not apply to the case. As regards the rights of the Municipal Board to prevent the public from using any property which has been dedicated at one time for public use and which falls under Section 116, Municipalities Act, it appears from Section 219 which applies to public streets and Section 224 which applies to wells that the Municipal Board can do so in respect of the properties over which it assumes ownership under Section 116 and in respect of which Municipal Board's powers are not restricted under Section 119 and Section 124. Section 219(c) lays down: 'A board may turn, divert, discontinue or close any public street so vested.' Section 224(b) lays down:
The board may from time to time enlarge, lessen, alter the course of, cover in or otherwise improve any water works and discontinue, close up, or remove the same.
6. The words 'water works' includes well under Section 2, Clause (26). As observed in Muhammad Raza Khan v. Muhammad Askari Khan 22 ALJ 729 (at p. 733) highways, streets and public roads are older than Municipalities, and older than the section which vests them in Municipalities. Every public road or way must have a history and every piece of land in the Province must have had an ownership at some time or another, and land which was once in private ownership can only be converted into public use in respect of its surface by an act of dedication. The existence of a prior dedication with regard to an ancient public way, takes very much the nature of what is called a lost grant. Where a public way is found and no traces are forthcoming of its origin, the law presumes the dedication, or a lost grant by the owner to whom the land belonged, and who alone could dedicate it. The case of the well and the land attached to it which is in dispute and which, as found by the Courts below, was dedicated by its owner for public use stands on the same footing as a public street or passage which is dedicated by its owner for public use. As pointed out above under Section 219(c) and under Section 224(b) the Municipal Board has been given a power under the Act to close the streets and the wells and thereby stop the public from using it. There is no reason why the Municipal Board cannot do the same in respect: of the land and the well in dispute which was public and which falls under Clause (b), Section 116.
7. Now the question is whether the public has any right to stop the Municipal Board from interfering with its rights. Section 34, Municipalities Act, makes a provision for the remedy of the public. The public can move the Commissioner or the District Magistrate who may prohibit the execution or further execution of the resolution or order passed or made by a board or a committee of a board. The resolution was passed by the Municipal Board before the land in dispute was given to the defendant partly in exchange of the land taken from the defendant by the board for the purposes of a school and partly for cash consideration. As soon as the resolution was passed the public or any member of the public could have moved the Commissioner or the District Magistrate to take the necessary action under Section 34, Municipalities Act, to prohibit the board from executing its resolution. If the Municipal Board had a right, as it had, to stop the public from using the well and the land attached to it and to sell it, the plaintiff has no remedy against the defendant who has acquired the land for valuable consideration from the board. It is therefore ordered that the appeal be allowed with costs throughout and the decree of the lower appellate Court be set aside. Permission to file a Letters Patent Appeal be granted.