1. The property in dispute in this case is a small piece of vacant ground outside the boundary wall of the plaintiff's premises, those premises having access to it and the adjoining road by a gate.
2. The suit by plaintiff is for a declaration of his right to the property outside his boundary wall. The Government registered the land as puromboke at the recent survey; and he claims it as his jenm property. Issues were framed as to the sustainability of the suit for mere declaration, the defendant, the Secretary of State, denying the plaintiff's possession as to the ownership of the property and as to the title set up by Government by adverse possession.
3. The first objection to the Lower Appellate Court's judgment is that it contains no distinct finding as to title, its discussion of the evidence being confined to a conclusion that the measurements in the plaintiff's documents could not be accurate, although the question whether they could be trusted as to any part of the disputed land was left open. If the measurements could not be trusted, the Lower Appellate Court should have considered whether it could not act on the principle that title goes with possession and it should have decided whether the plaintiff had discharged the burden of proof, which in view of his failure to establish his alleged right in connection with the survey was, it is, not disputed, on him. That, however, matters comparatively little. For the Lower Appellate Court has in fact found in favour of the defendant's possession and against that of the plaintiff in connection with the plea of prescription; and it would presumably have if it had looked at the case in the manner suggested, applied that finding to support a conclusion in favour of the defendant's title and also against the plaintiff's right to sue only for a declaration.
4. Its decision on prescription is based on findings that first the public has prescribed, and second, the defendant, Secretary of State, represents the public and can have the benefit of its prescription.
5. As regards the first of these points, the Lower Appellate Court's treatment of the evidence is summary. It mentions only that the land has been used as a cart stand and that the public has occupied it freely, the plaintiff's user by taking goods to his gate-way being no more than any member of the public might have done. The case may really be stronger than appears from the judgment. In fact we have been shown evidence that there was once a pound on the site. But the stronger objections to the Lower Appellate Court's findings are that, if the public can prescribe at all, a point which we return to, the Lower Appellate Court has not referred to any evidence, that those who used the land did so on behalf of the public and not in their individual capacity, or to any exclusion of the plaintiff, or anything inconsistent with the continuance of his ownership, subject to a right against him of the description referred to in Section 2(b) of the Easements Act V of 1882. And a right of that description is not what defendant claimed; and if it were claimed, it could be no defence to the suit. These distinctions are exemplified by Lutchmeput Singh v. Sadanulla Nushya I.L.R(1882) . Cal. 698, where however the form of the plaint prayer admitted of enquiry into the existence of such a right as a defence.
6. In fact however the Lower Appellate Court and the parties were wrong in considering the possibility of prescription by the public at all. For the public cannot prescribe. No doubt no authority as regards prescription by it for ownership has been produced. But the principle applicable to such prescription will be the same as that recognised in connection with prescription for easements or profits a prendre. As regards prescription of the latter kind authority is clear, Smith v. Andrews (1891) 2 Ch. 678 and Attorney General v. Easher Linoleum Co., Ltd. (1901) 2 Ch. 647 and this position is assumed in the Indian case last mentioned. As was said in the second English case 'it is necessary to remember that the thing to be established is dedication, not user. ' What can be proved is that the public has acquired an easement or a profit a prendre by a grant, or dedication, actual, if direct evidence of one is available, or to be presumed in case such evidence is not; and in the latter alternative evidence of enjoyment will be relevant and may go far towards supporting the inference that a grant or dedication, which is lost, at some time was made. The lower appellate Court must at the rehearing, which we are about to direct, bear this in mind. It will also bear in mind the necessity for proof that the dedication if any, was to the public at large, and not to any section of it. Poole v. Huskinson 11 z, & W 827 and Muhammad Rustam Ali Khan v. Municipal Committee of Karnal City .
7. There will still however be one more question' for the Lower Appellate Court to consider. In its judgment it has assumed that acquisition of a right by the public will be equivalent to its acquisition by the Secretary of State. That case was not put forward in the written statement, and its sustain-ability is not obvious. For we know that the public or a portion of it some times prescribes or attempts to prescribe against Government. The Lower Appellate Court has given no particular reasons for this part of its decision; and at the rehearing we must ask it to consider the matter more fully, if its other findings at the re-hearing render it necessary.
8. The Lower Appellate Court has misconceived the law at every point. We set aside its decision and remand the appeal for readmission and re-hearing in the light of the forgoing. Costs to date here and in the Lower Appellate Court will be costs in the cause and will be provided for in its decree.
9. Stamp value on the appeal memorandum in this Court will be refunded on application.