S.K. Ghose, J.
1. This appeal relates to a suit for recovery of khas possession of lands on declaration of plaintiff's title thereto. The plaintiff and the defendants are all residents of the village Balibari. The plaintiff's case is that the lands in Sch. 1 formed a public Gopat lying to the south and west of his tank adjoining his homestead. At the request of the villagers the plaintiff re-excavated the tank and there was art agreement between the plaintiff on one side and certain persons representing the villagers on the other by which the villagers gave up the right to the aforesaid Gopat and in exchange the plaintiff agreed to make a new path on the land of his tenancy lying on the other two sides of the tank. This land is described in Sch. 2. This arrangement was approved by the Union Board at a meeting and the plaintiff took settlement of the land in Sch. 1 from the landlords. His possession however over the land of Sch. 1 was resisted by the defendants who instituted a case under Section 133, Criminal P.C., and it was decided against the plaintiff. The plaintiff therefore sued for declaration of his title to the land of Sch. 1 and for recovery of possession thereof. Amongst the several defendants a few supported the plaintiff's case and the rest contested it. The trial Court found that the arrangement as per Ex. 6 upon which the plaintiff based his case was a matter between the plaintiff on one side and some villagers on the other and that these villagers did not act in a representative capacity. The villagers as a whole therefore did not lose their right of way over the land in Sch. 1 and in that view the trial Court dismissed the suit. On appeal the learned District Judge agreed with the Munsif on practically the same grounds. Hence this second appeal by the plaintiff.
2. In this appeal the learned advocate for the appellants concedes that he cannot base his case on the aforesaid arrangement as evidenced by the document Ex. 6. But he contends that this arrangement was ratified by the Union Board at a meeting under Section 31, Bengal Village Self-Government Act 5 of 1919, and therefore it ought to prevail. This argument does not seem to have been made at the trial, but it was made before the District Judge and he thought that Section 31 of the Act did not apply because the land was private property. It is pointed out 'road' as defined in Section 4, Clause (8) of the Act means 'any road' street or passage whether a thorough fare or not over which the public have a right of way and it is contended that this means that 'road' as defined in the Act may extend over private property. Nevertheless Section 31 of the Act provides that the Union Board shall have control of all roads, etc., within the Union, not being private property and not being under the control of the Local Government, or the District Board or the Local Board. Therefore private property is expressly excluded by this section. This I think is consistent with reason, because the various things which the Union Board is empowered to do under this section according to Clauses (a) to (f) are things which cannot be done with respect to privately owned lands. Mr. Nasim Ali pointed out that there is no provision for compensation for private owners, if their land is to be taken by the Union Board while directing a road. He has drawn my attention to an English case of 1877, namely, Wells v. London Tilbury and South-end Railway Co. (1877) 5 Ch D 126. There the Act that was sought to be interpreted expressly recited that it was expedient that the rights of way in respect of certain footways which crossed the railway on the level should be extinguished, but no provision for compensation was made.
3. It was held that upon the true construction of the Act, it did not interfere with private rights of way, but only with public rights of footway. To the same effect are the remarks in another English case, namely, The Attorney-General v. Horner (1884) 14 QBD 254. In the present case no doubt the zamindar has been made a party but he was no party to the arrangement upon which the plaintiff based his claim for relief. As regards the land in Sch. 2 the plaintiff was only a tenant and it has been found by the Courts below that the new diversion over the land of Sch. 2 has not yet been carried out and as a matter of fact the plaintiff does not claim any relief in respect of land in Sch. 2. Another difficulty in the way of the appellant is that this point which is based upon the resolution passed by the Union Board does not stand on proper evidence, for the simple reason that the resolution itself has not been put in evidence. There is only the deposition of the President and it goes to show that the Union Board apparently acted under the impression that all the villagers had agreed to the diversion and this, it has been found, was not the case. In the circumstances I do not think there is any force in the contention on which this second appeal has been argued. I have however some sympathy for the plaintiff-appellant. I dismiss this appeal, but at the same time I order that each party do bear his own costs in this Court.