Shiv Dayal, J.
1. This second appeal arises out of a suit instituted by the respondent for possession of a piece of land, situated at Bina. The plaintiffs case is that the suit land is a part of Survey No. 648/1, belonging to him. It was alleged that in the month of October 1954 the defendant Municipality collected some stones on the land and threatened to take wrongful possession of it. The defendant resisted the suit on the ground that the disputed piece of land had become a public street as it bad been for more than 50 years as a passage without any interruption. Title was also claimed on the ground of adverse possession. Section 48 of the C. P. and Berar Municipalities Act, 1922 (hereinafter called the Act) was further pleaded as a bar to the suit.
2. The trial Judge found that Khasra No. 648/ 1 was the absolute occupancy holding of the plaintiff. This finding has been affirmed by the first appellate Court. It has not been, and could not be, challenged before me. The trial Judge, however, non-suited the plaintiff as he found that the suit land became a public street within the meaning of the Act. He also held that the suit was barred by time under Section 48 of the Act.
3. The first appellate Court reversed both these findings and came to the conclusion that the Municipality failed to prove that it was a public street. The learned Judge held that the user by a section of the public was only permissive and it did not create any title in the public or the Municipality, nor was it sufficient to divest the plaintiff of his title. He held that Section 48 of the Act was not applicable to the suit. In the result, a decree for possession was passed in favour of the plaintiff.
4. In its written statement the defendant pleaded adverse possession. But adverse posession implies that the person claiming it is in actual possession, at the time, with a notorious hostile claim of exclusive title to repel which the true owner would then be in a position to maintain an action. In Ussam Kasim Salt v. Secy, of State, AIR 1923 Mad 624 it is held that there can be no adverse possession by public and the use of land by them cannot affect plaintiff's title or possession and that no rule can be laid down that acquisition of a right by the public will be equivalent to its acquisition by the Secretary of State, as the public or a portion of it sometimes prescribes or attempts to prescribe against Government.
Moreover, it is settled law that with regard to a vacant plot of land, possession must be deemed to be of the title-holder unless somebody can prove his possession. Tukaram Bajirao v. Tukaram Yeshwant, AIR 1927 Nag 37; Krishnaji v. Madhusa AIR 1934 Bom 207 (FB) and Aziz Uddin v. Maqbul Hussain AIR 1939 All 257. The defendant Municipality could not prove any acts of adverse possession to justify the plea. In that situation, I must mention in fairness to the learned counsel appearing for the appellant that he did not canvass the point with any vigour.
5. It is contended by Shri Jain that the land in question became a 'public street' within the meaning of Section 3(m) of the Act. In my opinion, this contention has no substance. The word 'street' is defined in sub-clause (1), and 'public street' in Sub-clause (2), of Section 3(m).
' 'Public street' means any street:
(i) over which the public have a right of way, or
(ii) heretofore levelled, paved, metalled, sewered or repaired out of municipal or other public funds, or
(iii) which, under the provisions of this Act, becomes a public street.''
Stress is laid on the fact that the public had been using the land in question for a large number of years. But I am clear in my mind that a mere user, even though it is unobstructed, does not mean 'a right of way.' Unless it is established that the public used the disputed portion of Khasra No. 648/1 as of right, it does not become a 'public street' under Section 3 (m).
Even in the written statement, the defendant did not plead that the land was used as of right, nor was it stated as to who was using the land. The learned counsel invites my attention to the statements of the plaintiff's witnesses Panna Lal, Phoolchand and Shanker Lal. It appears to me that their statements are vague and no attempt was made to elicit from them whether the public was using the land in question as of right.
Pannalal (P. W. 2) stated that he saw people coming and going through the land; Phoolchand (P. W. 3) stated the people passed through the land without being resisted; and Shankar Lal (P. W. 4) stated that people passed through that land. These statements are too indefinite to lead to any conclusion and, in my opinion, the learned 6rst appellate Judge rightly found that the defendant could not establish any case of a public street. Learned counsel for the appellant relied on Sections 38 and 50 (j) of the Act.
But in view of what I have said above, those provisions are of no assistance. It is held in Pt. Rajaram Vaidya v. M. C., Saugor, S.A. Not. 585 of 1944 D/- 23-9-1948 (1949 Nag LJ Note No. 27) that private properties cannot vest as public streets under Section 38 of the Municipal Act. And it is laid down in Mahabir Prasad v. Pitamber Prasad, AIR 1933 Nag 267 that a street not included in Muni-cipal jamabandi is prima facie not a public street.
6. It is strenuously urged by Shri Jain that this is a case of 'implied dedication' and I am asked to uphold this contention on the basis of the plaintiff's own statement wherein he admitted that he did not do anything on the disputed piece of land, that there was no fencing around it, that he did not keep any watch and ward and that he did not object to anybody passing through it. It is at once worthy of note that the Municipality did not take the plea of 'implied dedication' in its written statement. Even on the plaintiff's statement no case of implied dedication is made out. The real question involved is whether by long user, without more, the suit land became a public highway.
7. Highway rights are either created by statute or they arise out of dedication by the owner of the soil to the public. 'Dedication' is defined in 26 Corpus Juris Secundum' 398 (1956 Edition) as follows:
'A dedication is the devotion of land to a public use, by an unequivocal act on the owner of the fee, manifesting the intention that it shall be accepted and used presently or in the future for such public purpose.'
And it is further stated:
'Common Law dedication is the setting apart of lands for public use. The doctrine rests on public convenience and is based on public policy and good faith and it is analogous to the doctrine of estoppel although it has been stated that it is a distinctive to estoppel.'
Such dedication may be made by an express grant or it may be presumed from a long, continued and uninterrupted user by the public. Dedication can be shown by proof of acts and declarations by the owner as held in Spedding v. Fitzpatrick (1888) 38 Ch D 410, or by the owner permitting the public, for a substantial period of time, to have the free and uninterrupted use of the way, without any impediment whatever (see 19 Halsbury (Stmonds Edition) 49). However, it is only an evidence but not conclusive evidence.
8. User must be open and unconcealed so that the extent of land-owner's acquiescence may be determined. And user must be as of right, that is to say, the public must enjoy a way as of right where they use it believing themselves to be exercising a right. (See Hue v. Whiteley, 1929-1 Ch. 440 at p. 445 and Jones v. Bates, 1938-2 All ER j 237 at p. 245. User by permission or by force cannot justify an inference of dedication. Long and continued user raises a presumption of dedication but the presumption is rebuttable. It was held in Muhammed Rustam Ali v. Municipal Committee Karnal, AIR 1920 PC 43:
'In order to constitute a valid dedication to the public of a highway by the owner of the soil there must be an intention to dedicate there must be an animus dedicandi of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyments.'
9. But it must be remembered that user is not dedication; it is only evidence to prove animus dedicandi. In every case there must be a clear intention to dedicate. It was held in Simpson v. Attorney General (1904) AC 476, per Lord Macnaghten at pp. 493, 494:
'It is clear law that a dedication must be made with intention to dedicate, and that the mere acting so as to lead persons into the supposition that a way is dedicated to the public does not of itself amount to dedication.'
10. It must follow from this discussion that the real test is the intention of the land owner. The nature of the locus in quo is material. Where land adjoins a highway, user which can be explained as a mere deviation by the public from the adjoining highway will carry little weight. In the present case, the disputed part of Khasra No. 648/1 lies between the houses of Kazi Paiyazuddin and Thakur Lallusingh to the east of the Bagaria road, which runs north-south. Beyond the aforesaid houses, there is an open land of the plaintiff towards east and after some distance there is another main road (the Station Road of the P. W. D,). The situation of the disputed piece of land, therefore, does not support a case of implied dedication.
11. It is likely that people may have used it as a matter of charity and indulgence on the part of the plaintiff. If the plaintiff did not obstruct any passerby, it was a mere act of accommodation or of simple toleration which could not constitute either a dispossession or a dedication. Here I recall the observations in Folkestone Corporation v. BrocKman, 1914 AC 338.
It is the wise policy of the law not to construe ads of charity, though continued and repeated for ever so many years, in such a manner as to make them the foundation of legal obligations.'
And the observations of Bowen L.J.. in Blount v. Layard, 1891-2 Ch. 681n (approved in 1904 AC 476):
'Nothing worse can happen in a free country than to force people to be churlish about their rights for fear-that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many persons besides the owners, under the fear that their good nature may be misunderstood.'
12. Not a single instance has been proved here to show that anything was done by anybody which could have put the plaintiff on his guard. On the contrary, it has been found by the lower appellate Court that when Thakur Lalusingh and Kazi Paiyazuddin attempted a trespass on the plaintiff's land, he agitated the matter in the Court of Law. In other words, whenever he discovered an invasion on his rights, the plaintiff was vigilant enough to protect them. It was laid down in Corsellis v. London County Council, 1907-1 Ch. 704 -that a single act of interruption by the owner is of much more weight than many acts of enjoyment by the public.
13. Shri Jain has strenuously relied on the case of Laxman v. Tukia, AIR 1918 Nag 166. I have carefully perused the report and I find that that case is clearly distinguishable from the present one. That was a case relating to public footpaths through fields in a village of the Central Provinces. Reference was made therein to certain instructions issued by the Chief Commissioner under Section 62 of the Land Revenue Act, 1917. In the present case, neither custom has been plea|ded, nor was any entry in Wajib-ul-arz relied on.
14. In the absence of specific pleading and for want of proof of any intention on the part of the plaintiff to dedicate the disputed portion of his land, the case of implied dedication must be ruled out.
15. This brings me to the question whether the plaintiff's suit is barred by Section 48 of the Act inasmuch as it was not instituted within 6 months of the alleged trespass committed by the Municipal Committee. The section runs thus:
'(1) No suit shall be instituted against any committee or any member, officer or servant thereof or any person acting under the direction of any such committee, member, officer or servant for any thing done or purporting to be done under this Act, until the expiration of two months next after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a committee, delivered or left at its office, and, in the case of any such member, officer, servant or person as aforesaid, delivered to him, or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Every such suit shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action.
(3) Nothing in this section shall be deemed to apply to any suit instituted under Section 54 of the Specific Relief Act, 1877 (I of 1877).'
A great deal of stress is laid on the expression 'purporting to be done under this Act.' In my view, Section 48 of the Act is not applicable to a suit for declaration of title and possession. By no stretch of argument can it be said that when a Municipality claims ownership of a land, which is disputed by a citizen, it does something or purports to do I 'under the Act.'' Learned counsel has not been able to refer to me a single decision where Section 48 was held as bar to a suit for declaration of title or possession. Learned counsed refers to me the decision in the Amraoti Town Municipal Committee v. Shaikh Bhikhan, ILR (1939) Nag 216 : (AIR 1938 Nag 455). That case related to the recovery of tax illegally collected by the Municipality under the provisions of the Act. Reliance is also placed on the case of Releigh Investment Co. Ltd. v. Governor General in Council AIR 1947 PC 78 and Matajog Dobey v. II. C. Bhari, (S) AIR 1956 SC 44. But those decisions are not in point.
16. For these reasons this appeal is dismissed with costs.