1. Twenty-seven cents of land in Baliapatam were acquired by Government and a compensation of Rs. 100 was awarded and paid to the appellants, claimants Nos. 2 to 7, who are the urallars of the Baliapatam Jammath mosque. A claim was subsequently put in by the Chirakkal Rajah--1st claimant and respondent in this appeal--on behalf of his Kalarivathukkal Devasam and the matter was referred to the District Court under Section 30 of the Land Acquisition Act. The District Judge decided that the land acquired belonged to the Devasam and directed the appellants to refund for payment to the 1st claimant, the compensation which had been paid to, them.
2. The appellants contend that the land in dispute belongs to their Janunath mosque and that, even if it be held that the right of the mosque is not made out, the title of the Devasam is not proved, and that, therefore, the award of the District Judge must be set aside.
3. The land acquired is situated in Survey No. 51/1 which, with the Survey No. 30, which adjoins it on the south forms a piece of waste ground marked A in the plan lying immediately to the west of the Devasam. It is clear from the evidence on both sides that there are numerous graves in the waste ground, and everything points to the graves being Moplah graves. It is also clear, however, that none of the graves are recent. Some witnesses for the appellants did depose to burials in recent years, but they were unable to point out any recent graves and we have no hesitation in rejecting their evidence as untrue. There is no reliable evidence of burials in the tract within the memory of any person now living. It is clear, therefore, that although the plot (A) seems to have been used as a Moplah burial ground its use as such was abandoned long ago. The present Moplah burial ground in Survey No. 15 is separated from the plot (A) by the public road.
4. From the fact that the plot (A) contains old Moplah graves it is argued that it must have belonged to Moplahs. Granting that this is so, it does not follow that the plot belongs to the Janunath mosque. The mosque has no documents showing title to it, nor is there any evidence from which the title to the mosque could be properly inferred. The mosque does not even adjoin the plot but is situated two or three furlongs to the North-West. We must find, therefore, that the land acquired is not proved to belong to the Janunath mosque.
5. The next question is whether the title of the Devasam has been made out. The Devasam has no documents showing title to the land acquired, but an attempt has been made to prove title otherwise. Exhibit H is a document of 1869 executed in favour of the 1st claimant's Kovilagam in respect of plot E in the plan which lies to the east of Survey No. 51/1. The northern and western boundaries are given as waste parambas belonging to Kalarivathukkal Devasam. Exhibit K is a document of 1877 in favour of the 1st claimant's Kovilagam and we find the same paramba given as the northern and southern boundaries of the land dealt with. These documents show that some land in the present Survey No. 51 was being claimed by the Devasam. They do not help us to determine how much of the survey number was claimed and whether the land acquired was part of the land claimed.
6. The evidence of the 9th witness for the 1st claimant, which we see no good reason to distrust, shows that in 1875 he asked the permission of the Chirakkal Rajah to build a shed for postal runners at a spot a little to the southwest of that acquired. The witness was transferred in 1881 and there is no evidence that the shed existed after that date. When the witness returned in 1889 the shed had disappeared. The 7th witness for claimants Nos. 2 to 7 was Post Master of Baliapatam from 1882 to 1884 and never saw any shed. In the North-Eastern corner of Survey No. 51/1 there are quarries which are marked A2 and A3 in the plan. The evidence of the Commissioner's second witness for claimants Nos. 2 to 7 shows that these are old quarries and that at the time of his inspection they were covered with grass and showed no signs of recent stone cutting. The 1st claimant has attempted to show by Exhibit D and evidence of his 4th and 5th witnesses that his permission was taken when stones were cut in these quarries, Exhibit D of 1872 is a compromise of a criminal complaint brought by a person who had obtained a grant of some land from the Chirakkal Rajah and charged certain persons with cutting stones without his consent. Reference is made to a deed in which the lands granted were specified. That deed is not, however, produced and there is nothing in Exhibit D to show that it refers to any part of Survey No. 51. The 4th witness says vaguely that as Thiyas cut stones in the quarries in question without consent a suit was filed some time between 1872 and 1874. The 5th witness simply says that stones were being cut from the quarries with the Rajah's consent. He is an interested witness, being the shanti of the temple. We are not prepared to hold on this evidence that the 1st claimant has exercised any right of ownership over the quarries. The existence of the quarries may be quite well explained by the existence of the adjoining tombs for which stones were required.
7. Exhibit E shows that in 1892 the agent of the Devasam filed a criminal complaint against 3 Moplahs for having taken a corpse, along the foot of the western gopuram of the temple, with the intention of polluting the temple, instead of taking it along the ordinary road. The matter was compromised by Exhibit F, the accused persons undertaking to carry corpses in future along the Baliapatam-Cannanore road to the west of Survey No. 51 according to past practice and not through the land to the east of the road. This incident does not necessarily show anything more than that the temple authorities objected to corpses being brought near the temple so as to pollute it and that the accused agreed to respect this objection in order to escape a criminal prosecution.
8. Survey No. 126 is situated on the west of the Baliapatam-Cannanore road. Before that road was made some 60 years ago Survey No. 126 and the plot A formed continuous plot of land. Exhibit M of 1868 shows that the Chirakkal Rajah granted portion of Survey No. 126 to Government for use as a cart stand while Exhibit 0 of 1905 shows that compensation was subsequently granted to the Rajah for the portion so used. This evidence is relied upon as making it probable that the plot A also belongs to the Rajah. But on the same principle it might be argued that the plot A belongs to the owner or owners of the admitted Moplah burial ground in Survey No. 15 which is only separated from plot A by the road.
9. At the time of the survey in 1893, as appears from Exhibit D D, the whole of Survey Nos. 51 and 30 were treated as belonging to the Devasam and the 12th witness for the 1st claimant proves that the Rajah paid for the expenses of planting the survey stones. The Rajah also claimed these survey numbers for the Devasam at the settlement of 1903 and rough pattah Exhibit G was issued in his name. Exhibit LL, however, shows that the Rajah's claim to Survey No. 51 was disputed by the Baliapatam Aiyaram, which means literally the Baliapatam Thousand and may refer to the Baliapatam people or the Baliapatam mosque. Exhibit S shows that the mosque was claiming Survey No. 51. Soon after the issue of Exhibit G the mosque by Exhibit RR claimed Survey No. 51 and later on in 1905 claim was laid to Survey No. 30 also. Vide Exhibits VII and XIV. This delay in claiming survey No. 30 is immaterial, as it is Survey No. 51 with which we are really concerned. All that these proceedings at the survey and settlement show is that the Rajah was claiming the land. They are not sufficient to show that he had either title or effective occupation, and it is to be observed that his claim was disputed as soon as it became publicly known.
10. The evidence of the Commissioner, 2nd witness for claimants Nos. 2 to 7 shows that part of the steps leading to the western gopuram of the temple is in plot (A), while the evidence, of the 1st and 9th witnesses for these claimants taken with the evidence for the 1st claimant leaves no doubt that the path running from North to South in the eastern plot A is regularly used for temple processions &c.; It seems not improbable, therefore, that the Devasam owns some land in plot A, but the question is, how much does it own, and does its ownership extend to the portion which has been acquired?
11. Evidence has been given to show that during the temple festivals worshippers assemble in Survey No. 51/1 and that various acts are done therein. The 1st witness for the 1st claimant says that the worshippers collect on survey No. 51 at feast times, that processions go along the path (Y), that fire works are let off near the banyan tree and that the only use made of the path which runs across Survey No. 51 from east to west is that people walk along it from the public road to the temple. From the evidence of the 2nd and 3rd witnesses it further appears that Pulayars, when they attend the festival, take up their position some distance to the North-East or north of the land acquired. From the evidence of the 5th witness it would appear that the banyan tree near which fireworks are let off is the banyan tree to the west of the temple and north of the path. This, however, is still well to the east of the land acquired. It is at this banyan tree that Kalasams are said to be kept. According to this witness Pulayars stand on the east of the land acquired. This witness further states that processions while they go from North to South never go to the east, so that the path is not used for procession, From the evidence of the 7th and 9th witnesses it is gathered further that on festival occasions people offer goods for sale on each side of the path.
12. The remaining evidence carries the case no further, and it is clear that all important matters connected with the festivals take place in the vicinity of the temple itself and to the east of the land acquired.
13. The evidence relied upon by the 1st claimant has now been summarised. No specific act of ownership in respect of the land acquired has been shown by the 1st claimant, and as already observed he has no document showing title to that land. We do not think that a sufficient foundation has been laid to justify us in inferring that the land acquired belongs to the 1st claimant. There is no evidence that before it was used as a Moplah burial ground the land belonged to the Devasam. The use of the land as a burial ground no doubt appears to have been abandoned long ago, but this does not raise any presumption that the land belongs to the Devasam. The Devasam must show that it has title, and having no title deeds must show effective occupation. What has been attempted to be shown is that the 1st claimant exercised acts of ownership in so many parts of plot A and land in the vicinity that it may reasonably be' inferred that the land acquired also belonged to him. As has been shown above, however, the evidence of such acts of ownership which is entitled to credit is very slight, save perhaps with regard to that portion of plot A which is in the immediate vicinity of the temple. As was pointed out in Mohini Mohan Roy v. Promoda Nath Boy 1 C.W.N. 304 acts of possession over a part of any immovable property may no doubt in many cases be evidence of de facto possession of the whole as has been explained by Baron Parke in Jones v. Williams and by Lord Blackburn in Lord Advocate v. Lord Blontyre. But that rule operates with full force only in favour of the rightful owners, and it should be applied with caution and reservation, if at all, in favour of a wrong-doer; for this reason among others, that the right to the whole which makes the possession of a part equivalent to the possession of the whole, and forms the connecting link between the whole, and the part in one case is wanting in the other. In the case of a wrong-doer claiming to possess the whole by reason of possession of a part, it is often difficult to say in the absence of the connecting link of title, how far the whole extends. This want of this connecting link may in some cases be supplied by others, such as close connection and interdependence between the part actually possessed and the whole, of which it is claimed to be a part. But except in such special cases the possession of a wrong-doer should be held to be confined to what he is actually in possession of.' As we cannot start with the presumption that the 1st claimant is the rightful owner the same principle is applicable in the present case, and there is no ground for treating this as one of the special cases above referred to. We find, therefore, that the 1st claimant has failed to make out that the land acquired belongs to him. This being so the award of the District Judge must be set aside, for although we have found that the land is not proved to belong to the mosque, still the compensation has been paid to the urallars of the mosque, and there is no reason why, on the objection of a person not proved to be interested in the land acquired, they should be ordered by the Court to refund the compensation paid to them. As the parties have both failed to prove that they are interested in the land acquired they will bear their own costs throughout.