Bajpai and Dar, JJ.:— This appeal and the connected appeal No. 97 of 1935 are two appeals against the judgment and decree, dated the 29th of September, 1934, of the Civil Judge of Muttra by which the plaintiffs' claim for declaration of title to a plot of land in the city of Muttra was partly decreed and partly dismissed.

The property in suit out of which these two appeals have arisen is a plot situated in the city of Muttra and is popularly known as Kans-ka-Tila. Muttra, is a sacred city of the Hindu and from time immemorial the Kans-ka-Tila has been associated with some scenes of Hindu religion and mythology. The plaintiffs in the suit are the executors of the Lala Babu estate. Lala. Babu was a Bengali gentleman who flourished in the beginning of the last century and who, leaving his original home in Bengal, came in the beginning of the last century and settled at Brindaban for a religious life. During the course of his Sojourn in these parts of the country he acquired a considerable estate in Muttra and Bulandshahr districts which has been in possession, of his descendants and which at present is being managed by certain executors under a, will who are the plaintiffs in the action. The defendants to the action are 76 Chaubes who reside in we streets of Muttra called Gali Bhar and Gali Tewari. These Chaubes belong to a priestly class who work as ministers to Hindu pilgrims and visitors to Muttra. The 76 Chaubes who are defendants to the action are said to be the representatives of a fraternity of about 200 Chaubes who reside in the said two streets, and the action has been raised against them in a representative capacity and proceedings have been take under order I, rule 8 of the Civil Procedure Code.

For sometime past a controversy has existed between the plaintiffs and the defendants as to the possession and the title of Kans-ka-Tila and the plaintiffs, have raised this action for a declaration “that the plaintiffs be declared to be owners of the entire plot of land described below and that defendants have got no interest whatsoever in the said plot derogatory to the proprietary rights of the plaintiffs”. A number of defences were raised to the action. The plaintiffs' title was denied and it was pleaded that the plaintiffs' claim was barred by res judicata and by principles of acquiescence and estoppel and by section 60 of the Easements Act and section 42 of the Specific Relief Act. It was further pleaded that order I, rule 8 of the Civil Procedure Code did not apply to the action and necessary parties were not made defendants, but the main defence to the action was expressed in paragraphs 3 and 4 of the written statement which are as follows:

“3. The land in dispute is known as Kans Tila and the defendants and other persons of Chaube caste, residents of Gali Bhar and Gali Tewari of Muttra city, are the owners thereof. The plaintiffs' allegation that they are the owners thereof is altogether wrong.

“4. The defendants and other persons by caste Chaubes, residents of Gali Bhar and Gali Tewari, whose number is at present about 150 or 200 and their ancestors have of old been in adverse and proprietary possession for hundreds of years and they have built temples and other katcha and pucca buildings, wells, akharas, fitted pipes, etc., and planted trees at an expense of thousands of rupees; mela fair of Chaubes known as Kans ka mela has been annually held thereon for thousands of years and one pawan pariksa has annually been held there since a long time on Asarh Sudi 15; even if the right of the plaintiffs or their predecessors in title is proved at any time in the land in dispute, which is not admitted by the contesting defendants, then as they have been in possession for more than 12 years it became extinct and now they have no subsisting right in if. The defendants and other Chaubes aforesaid are the absolute owners of this and the said land is their tirath asthan.”

The trial court has found that the pontiffs are the owners of the plot in dispute i.e Kans-ka-Tila but the defendants have established a title by adverse possession on the Kans-ka-Tila excepting on a small portion towards the south which is marked on the plan with the letter I. It further found that the plaintiffs' claim with regard to a portion of Kans-ka-Tila was barred by res judicata and by acquiescence and estoppel and the plaintiffs' claim for a declaration was misconceived. As a result the trial court granted to the plaintiffs a declaration of title with regard to a very small portion of Kans-ka-Tila which is marked with the letter I on the plan prepared by the commissioner in the suit and the rest of the claim was dismissed. Against this decree both the plaintiffs and the defendants have made these two appeals which are numbered 80 and 97 respectively.

Kans-ka-Tila is a high mound of earth occupying an area of .95 acres or 1 bigha 10 biswas. For the purposes of the trial a commissioner was appointed in the trial court who submitted a report about the physical features of Kans-ka-Tila and of its constructions with reference to a plan which has been referred ton these proceedings as the commissioner's plan. It appears from this plan that this high mound of earth consists of certain flat spaces, some of which are marked as Nos. 1, 2, 3 and 4 in the plan and one of which is marked as I which is used for latrine purposes. One-third of the western portion of Kans-ka-Tila is studded with constructions. There exist over this portion a pucca will, some, shops, a room and a chabutra, five temples, two wrestling arenas, a water pipe and a pucca staircase leading up to the temple. The eastern one-third of Kans-ka-Tila which is marked G in the plan consists of a flat space where the effigy of Kans is beaten as hereafter explained and which is reserved for performance of an annual mela and ceremony. The lower southern portion of Kans-ka-Tila which is marked I consists of a flat space full of self-grown shrubs which is used as a, latrine. There is plenty of uneven and unoccupied space in the Kans-ka-Tila where self-grown shrubs and plants are standing. Mr. Ram Nath Sharma the Munsif of Muttra had inspected Kans-ka-Tila for the purpose of a suit pending in his court between the plaintiffs and some of the defendants and he has recorded his impressions of Kans-ka-Tila in his judgment, dated the 19th January, 1933, in these words:

“I have inspected the Tila and carefully noted all the constructions, etc. thereon. It is a high mound of earth situate just the side of the pucca road leading from Muttra to Agra. There is abadi all round but the Tila is distinguishable from its surroundings. Its surface is uneven but there are several flats on it where people can sit. About three-fourths of its surface is lying as a waste land with wild shrubs growing and is unfit for any use whatsoever. It is accessible from the road by a pucca staircase admittedly got, constructed by Chaubes and one can also reach ifs top from the southern side near a Tiwari. A pucca drain has also been constructed by the side of the staircase and a water connection laid, both at the instance of Chaubes. There are certain Temples at the flat just on climbing up the staircase, and admittedly the Chaubes enjoy the offerings made by pilgrims in these temples. There is also an arena further up where they wrestle and do exercise. By the side of one of the temples there was a room fit for habitation and some utensils and earthen jars, etc. were placed there apparently for drinking water and preparing bhang which is the usual practice of the Chaubes of Muttra.

“It may not be out of place to give a brief account of this Tila. Kans-ka-Tila as it is called, is supposed to be the one from the summit of which the tyrant, Kans of Hindu mythology, was tumbled down by Lord Krishna and to commemorate that incident a large wicker figure of Kans is brought out on to the road on Kartik Sudi 10 of every year when two boys dressed to represent Krishna and Baldeo, mounted either on horses or on elephant, give the signal for an assault on the monster the effigy is then beaten and torn by the Chaubes who then take out the shreds and pieces in procession. Before being beaten the effigy is taken up the Tila from the northern side and the ceremony takes place there. This fair is being held there admittedly from time immemorial.”

Kans-ka-Tila at present is a part of the city of Muttra and is included within its municipality and abadi. In the words of the commissioner “it lies in front of the district hospital and the head Post Office buildings”, but like many cities in this province the city of Muttra has grown and expanded within the last hundred years and it includes within its area land which at one time formed part of an agricultural village. The plaintiffs' case is that in the beginning of the last century when the city of Muttra came under the occupation of the British Government it was regarded as a mauza or an agricultural village and the then proprietors of the mauza, who were certain Chaubes, by a deed dated the 20th May, 1812, transferred their proprietary rights in the said mauza to Krishna Chandra Singh alias Lala Babu the founder of the Lala Babu estate and the predecessor in title of the plaintiff, and by virtue of this assignment Lala Babu and his successors including the plaintiffs have been in possession of mauza Muttra, and Kans-Ka-Tila being a part of mauza Muttra it became the property of Lala Babu and his successors by the same title under which mauza Muttra was held and enjoyed. The deed of assignment of 20th May, 1812, was exhibited in the case and some witnesses were called to prove that the assignment was acted upon and in terms of the assignment the Lala Babu estate was paying certain allowance to the descendants of, the assignors. This document has not been printed in the record of the appeal, nor is there any evidence to show whether in pursuance of this assignment any mutation took place in fact nor is there any evidence to show that the people who had made the assignment had any title to convey. If the case had rested upon this deed alone it would have been difficult to maintain that the plaintiffs have established any title to the property in suit on the evidence on record. It is possible that the deed may be the origin of Lala Babu's title, but connecting documents have not been produced in the case and it will not be safe to rely upon it as the basis of the plaintiffs' title. But there is evidence to show that in the settlement of 1876 plot No. 4366 was a part of mauza qasba Muttra and its proprietor was Kunwar Girish Chandra Singh, a successor in interest of Lala Babu and its area was .95 acre or 1 bigha 10 biswas and it contained:

Pucca house with temple of Mahadeoji—5.

Pucca house—2.

Pucca well—I, with wrestling area.

One pucca well at Kans-ka-Tila.

There is evidence to show that old No. 4366 is now represented by No. 4364. It further appears from the extracts of the wajib-ul-arz of the settlement of 1876 that the heirs of Lala Babu had no rights in the abadi of qasba Muttra and the Chaubes had certain rights in the self-grown trees which existed at Kans-ka-Tila. Paragraph 21 of the wajib-ul-arz relating to houses is as follows: “The abadi of this qasba is like that of a city. The heirs of Lala Babu malguzar cannot in any way interfere inside the abadi of the qasba. The Government has all powers of interference. No other proprietor can interfere in any way except in respect of houses in his possession. All the matters relating to the abadi are decided by the civil court.” The relevant entry in paragraph 21 of the wajib-ul-arz which deals with miscellaneous trees is as follows: “Dani Ram shall use the Kans-ka-Tila for sitting purposes and shall remain in possession of self-grown trees. But the name of the zamindar shall remain recorded in the column of owners…. It is a place of pilgrimage, any if anyone plants any tree on the khalsa land in connection with kirpan etc. it cannot be cut by anyone; but if any tree falls down or dries up, it shall belong to the malguzar. This custom is still in force.”

It further appears from the khewat of mauza Muttra, mahal non applicants, of the year 1926-1927 that the mahal contains 358.34 acres and is assessed to a revenue and cess of Rs. 541-12-0 and that the plaintiffs are its recorded owners and there is evidence to show that the old khasra number of plot 4366 is now represented by plot No. 4364 and the said plot is a part of mauza Muttra, mahal non applicants, of which the plaintiffs are recorded as proprietors. These documents in our opinion are sufficient to establish a prima facie title in favour of the plaintiffs even if the alleged assignment of 1812 is disregarded.

In the records of the Muttra Municipality for the purpose of assessment and water rate the Chaubes, that is, some of the members of the defendants' community have been recorded as the owners of Kans-ka-Tila and there are documents on the record to show that from the year 1880 onwards, on three or four occasions the Chaubes had made applications and had obtained permission from the Municipal Board for making various constructions on the Kans-ka-Tila. One such application is dated the 6th of December, 1880, and it was for “permission to construct a staircase in Tila Kans situated beyond Holi darwaza”. Another application was made on the 14th of January, 1880, “for repairs of Kans-ka-Tila situated in Holi darwaza”.

In the year 1899 a Chaube named Lochan made a well on a portion of Kans-ka-Tila which is marked “C” on the plan. The plaintiffs' predecessor in title brought a suit, No. 564 of 1899, in the court of the Munsif of Muttra for a declaration of his proprietary title and for a perpetual injunction restraining Lochan Chaube from constructing the well. This suit was compromised between the parties and the compromise provided that “the plaintiff has, as requested by defendants, kindly permitted the well to stand”. In 1908 the plaintiffs' predecessor brought another suit, No. 702 of 1908, against Lochan Chaube for demolition of a room made by Lochan Chaube in Kans-ka-Tila which is shown on the plan and marked “B”. This claim was decreed in favour of the plaintiffs' predecessor and the decree was affirmed in appeal by a judgment dated the 18th of July, 1910, but the decree was somehow or other not executed and when execution was finally taken out objections were raised to execution by other Chaubes and as a result of their objection on the 16th December, 1922, it was ordered by the Munsif of Muttra that the objectors, viz., the other Chaubes were in possession of the property in their own right and the plaintiffs' predecessor had no right to dispossess them. The plaintiffs thereupon instituted suit No. 1053 of 1923 against seven Chaubes representing 200 other Chaubes for a declaration of their title and for demolition of the room which had been constructed and for restraining the defendants from interfering with the plaintiffs' possession. On a finding that the defendants were in adverse possession of the property the claim was dismissed and the said decree was affirmed by this Court in second appeal on 27th April, 1928, in 1932 the plaintiffs raised an action against Bulaqi Ram and two others, some of the defendants to this suit, for demolition of some fresh constructions, viz., shops made by Bulaqi Ram and others on a portion of Kans-ka-Tila marked with letter A on the plan, in the court of the Munsif of Muttra. This suit was also dismissed by the Munsif on a finding that the Chaubes were in adverse possession of the property and although this judgment was under appeal when the, present suit was fried out in the court below, since then it has been affirmed up to the High Court in second appeal. It was from the Munsifs judgment in this suit that we have quoted above the description of the locality. It will thus appear that from 16th December, 1922, onwards when the execution case was decided against the plaintiffs, the plaintiffs have been asserting their rights over the Kans-ka-Tila and defendants have been constantly denying the plaintiffs title and setting up adverse rights for the Chaube community and in all the litigations which took place between the parties from 1922 onwards it has been invariably found that the Chaube, community were in adverse possession of the property, and so far as the property which is the subject-matter of those suits is concerned, viz., property marked A, B and C on the commissioner's plan, the plaintiffs cannot maintain any fresh action and their claim is barred by res judicata.

It further appears, that in suit No. 442 of 1923 in the court of the Assistant Record Officer, Muttra, a dispute arose between the plaintiffs and the Chaubes with regard to the possession of Kans-ka-Tila and with regard to the correctness of the entry in the khasra about it and the Record Officer by an order dated the 7th of April, 1934, relying on actual possession as found and as it appeared to him ordered that the plot be recorded in possession of the Chaubes “in the column of remark of the khatauni. The plot is really abadi and no part of jungle”.

At the trial a large number of witnesses were called by both sides to prove their respective possession. It is common ground that every year a mela is held in Kans-ka-Tila and on the occasion of this mela hawkers visit the mela and hawk their wares. The plaintiffs led evidence to show that the plaintiffs used to realise market dues from these hawkers and the plaintiffs further led evidence to show that Kans-ka-Tila was let out for grazing purposes and the lease money was collected by the plaintiffs.… The trial Judge has disbelieved this evidence and we think rightly…. We are not prepared to differ from the finding of the trial court. The plaintiffs therefore have failed to prove that they have collected any income from the Tila or they have been in actual possession of any portion of the Tila.

The defendants have called evidence to show that from time immemorial an annual religious ceremony with a mela is held over the Kans-ka-Tila and for the observance of that ceremony it is necessary that this mound should be preserved in its present condition and it cannot be built upon and its physical features cannot be substantially changed. Consistent with the maintenance of the Tila substantially in its original condition such use and occupation of the Tila as is permissible under the circumstances is with the defendants. On one-third of the eastern portion they have built temples, arenas, wells, rooms, shops, staircases, turrets, burj and have laid on water pipes. In addition to these buildings and constructions the Chaubes use the Tila as their sitting place and for other purposes. In the previous litigations referred to above, which took place between the plaintiffs and the Chaubes, it was invariably found that they have been in effective possession of the Tila. Relying upon oral evidence of the defendants the trial Judge has found in this case that the Chaubes are in possession of the entire Kans-ka-Tila excepting a small portion on the south marked with letter I on the plan. We do not think that any legitimate distinction can be drawn between the nature of the possession of the Chaubes over various un-occupied portions of the Tila. There may be some distinction between that portion of the Tila which has building on it and the other portion which has no building upon it, but no legitimate distinction exists between one portion or other portions of the unoccupied Tila and the question of possession must be considered with reference to the Tila as a whole as one unit, as one item of property enclosed within a specified boundary, and when looked at that way the Chaubes appear to us to have been in possession of the entire portion of the unoccupied Tila; but whether that possession confers upon them any right or not is a different matter and will require a separate consideration.

The plaintiffs' contention is that the proprietary rights in the Tila are vested in them. It is true that they have lost their rights in that portion of the Tila which was the subject-matter of suits Nos. 554 of 1899, 702 of 1908, 1053 of 1923 and 160 of 1932 and it may be that the plaintiffs further may have lost their rights over that portion of the Tila which is occupied by burj or by temples or by omer buildings and houses and staircase and water pipe but the remaining portion of the Tila is unoccupied and with regard to the remaining portion the plaintiffs should be deemed to be in constructive possession. The plaintiffs contend that the law does not allow constructive possession to a squatter and the trespasser has to prove actual possession of the property over which he claims adverse possession and that the use by the Chaubes of the unoccupied portion of the Tila amounts in law only to a license and the use by the Chaubes and by the Hindu public of a portion of the Tila for holding an annual fair may again amount to a license or to a customary right, but such uses do not establish adverse possession of the property. The plaintiffs, therefore, claim that a declaration should be granted to them of the proprietary title over the Tila excepting that portion which was the subject-matter of previous litigations mentioned above and that portion over which constructions mentioned above exist.

The defendants' contention, on the other hand, is that, possession of the property depends upon the nature of the property and in this particular case the Chaubes have established such possession as the property was susceptible of. The property being a mound, which, having regard to its religious use, has got to be maintained as a mound, could only be subjected to a limited use. The defendants further contend that the whole of the Tila is to be regarded as one unit contained within Specified boundaries and the Kans-ka-Tila is a property of such nature with regard to which possession of a part may be regarded as possession of the whole.

The law applicable to a matter like this is well settled and is correctly stated in Mitra's Limitation and Prescription (6th edition), volume 1 at pages 152 and 153 and volume 2 at pages 1732 and 1733. The passage at pages 152 and 153 is as follows:

“Generally speaking possession of part is, in law, possession of the whole, if the whole is otherwise vacant. This constructive possession is an incident of ownership, and results from title. It is in no way applicable to a case where the occupant defends himself avowedly and exclusively on the ground of his own wrong, that is, on the ground of his possession only, and without claiming any title. Possession of land by a party not claiming title is confined to the part actually occupied by him. It would be contrary both to principle and authority to imply constructive possession in favour of a wrong-doer so as to enable him to obtain thereby a title by limitation. The maxim ‘tantum prescriptum quantum possessum’ will be rigorously applied in such cases.

“In the case of wrongful possession of a part by a stranger, his possession does not extend to the whole, unless it is accompanied by a definite claim of title to the whole.… When a tract of land win defined boundary has been throughout claimed as owner, and acts of ownership have been done upon various portions of it, such acts of enjoyment may be accepted as evidence of the possession of the whole…. If a tract of land or water can be taken to be a unum quid (a connected and unbroken entirety), exercise of dominion over certain parts in accordance with a claim of title to the whole may be evidence of possession of the whole.”

The passage at pages 1732 and 1733 is as follows:

“Generally speaking, possession of part is in law possession of the whole, if the whole is otherwise vacant. This constructive possession is an incident of ownership and results from title. Possession of land by a party not claiming title is confined to the part actually occupied by him. It would be against the policy of the law to imply constructive possession in favour of a wrong-doer so as to enable him to obtain thereby a title by limitation. The title founded by a trespasser on adverse possession will be therefore strictly limited to that area of which he has been in, actual possession. Tantum prescriptum quantum possessum… Possession is a question of fact and the extent of the possession is an inference of fact having regard to the nature of the subject and the possession of which it is susceptible… Acts indicative of possession must vary according to the nature of the property over which possession is exercised.”

Now, Kans-ka-Tila is a property with certain well defined physical features and is situated within specified boundaries. Its main use is that it commemorates a welt known scene of Hindu religion and mythology and for that purpose it has got to be maintained and preserved in its original form—that of a high mound. The entire locality possesses such a common character that possession of a substantial art may well raise the inference of the possession of the whole. It is not disputed that over one-third western portion of the Tila, temples, staircase, burj shops, rooms, arenas and well exist and these constructions have been erected by the defendants and the defendants are in possession of the same. It is not disputed that on a plot occupying one-third eastern portion the effigy of Kans is burnt and an annual fair held. It is proved that defendants without any let or hindrance use, portions of Tila for sitting purpose. It is abundantly proved that from a long time they have been denying the plaintiffs' rights over the entire Tila and claiming it to be their own property. In the written statements filed in various suits between the plaintiffs and the Chaubes the rights of the plaintiffs were expressly denied and it was asserted that from time immemorial the entire Tila had been a sacred property devoted to public and charitable purposes. In 1922 in a contest before the revenue court the plaintiffs' right was again expressly denied and the revenue court accepting the defendants' contention corrected the village records. There is every reason to suppose that the possession of the defendants goes back to time immemorial and the plaintiffs were never in possession of the Tila and from the first moment the, plaintiffs asserted any claim over the Tila a conflict arose between the plaintiffs and the Chaubes who have been since asserting a hostile title to the knowledge of the plaintiffs. We have then a case in which the property was—to use a common but somewhat inelegant expression—a unum quid (a connected, and unbroken entirety) a substantial portion of which was in actual possession of the Chaubes and with regard to the whole of it they claimed and set up a hostile title against the plaintiffs to the plaintiffs' knowledge. This being so, we think that if it were possible for the defendants to acquire a title to Kans-ka-Tila by prescription or adverse possession there is sufficient evidence on the record to enable us to hold that they have done so.

This leads us to the question whether the defendants can acquire title by prescription or adverse possession. The defendants are 76 Chaubes, residents of two streets in Muttra, viz. Gali Bhar and Gali Tewari. They are sued in their representative capacity as representing about 200 Chaubes residing in the same streets and the claim put forward by the defendants is that Chaubes who reside in Gali Bhar and Gali Tewari and who are known as Chaubes Tebari, Bharwali, Lor, Mihari, and whose number is indefinite and fluctuating, are owners of the said Tila and alternatively they are in adverse and proprietary possession of it. The said Chaubes, 150 or 200 in number, have not been incorporated and they cannot be regarded as a legal person. It is not the defendants' case that any individual Chaube for over 12 years has been in adverse possession of the entire Tila or of any portion of it if we except that portion which was the subject-matter of previous litigation. There is no evidence to show that any individual Chaube who is defendant to this action has been in adverse possession of the Tila for over 12 years, again excepting the portion, which was the subject-matter of the previous litigation. It is the pleading of the defendants and it is their evidence that a fluctuating and indefinite body of 10 or 200 persons of Chaube caste who reside in Gali Bhar and Gali Tewari are the owners of the Kans-ka-Tila and this body is in proprietary and adverse possession of the same. Does law allow a fluctuating and indefinite body like Chaube residents of two streets of Muttra to hold and own Immovable property or to accept a transfer to grant of immovable property without incorporation or without the intervention of a trust? If law does not allow a fluctuating and indefinite body to hold property by virtue of a grant or a transfer, can it Acquire and held property under a title arising from prescription or limitation?

There is an English case, Goodman v. Mayor of Saltash(1), in which Earl Cairns while dealing with a somewhat different question stated the law with regard to acquisition of rights by indefinite and fluctuating bodies as follows:

“There were several questions argued, both here and in the court below; and I think it desirable to mention them for the purpose of explaining that I should be very far from attempting to call in question the law as applicable to those questions. In the first place, I agree with the view of the Common Pleas Division that the free inhabitants of ancient messuages in Saltash cannot be presumed to be incorporated so as to be capable of prescribing for a profit a prendre in alieno solo. In the next place I think it to be clear law that while you may by custom claim an easement to be enjoyed over the land of another, you cannot by custom claim a profit a prendre in alieno solo. I think it also to be clear law that you cannot claim by prescription anything which could not have a lawful beginning. And I think it also clear that a fluctuating and uncertain body cannot claim a profit a prendre in alieno solo, and indeed cannot be the grantee either of a several fisher or of any other kind of real property. Upon all those questions, therefore, nothing that I am going to say will raise or suggest any kind of doubt.”

It will be noticed that in the view of Earl Cairns a fluctuating and indefinite body cannot be the grantee of any kind of real property “and that you cannot claim by prescription anything which could not have a lawful beginning” and if the possession of a fluctuating and indefinite body could not have a lawful beginning there can be no question of prescription or adverse possession.

In Dalton v. Angus, Selborne, L.C, stated the law as follows:

“The rule as to prescription is thus stated in Sir Francis North's argument in Potter v. North(2): ‘The law allows prescriptions, but in supply of the loss of a grant. Ancient grants happen to be lost many times, and it would be hard that no title could be made to things that lie in grant but by shewing of a grant; therefore, upon usage temps dont etc., the law presumes a grant and a lawful beginning, and allows such usage for a good title; but still it is but in supply of the loss of a grant; and, therefore, for such things as can have no lawful beginning, nor be created at this day by any manner of grant, or reservation, or deed that can be supposed, no “prescription is good.”

In India both in cities and villages property exists which is not vested in definite individuals, but is vested in and enjoyed by large communities, that is fluctuating and indefinite bodies; some of this property is managed by the community at large, same by selected representatives of the communities. Property of this kind may partake of a sacred character like a bathing-ghat or a tank or it may be of wholly secular nature like a village Chaupal or a Chowk in a mohalla and it is popularly called “Panchaiti property”. Very often with regard to these properties no regular constitution of Panchait exists and the property is vested in the community at large and is managed by representatives of the community common interest and for common benefit but without any regular constitution. Whatever may have been the origin of this kind of property in times gone by, whether it arose in grant or in dedications or in trust, it is not possible in the present day to find with regard to a good many of these properties any trust or dedication or incorporation, and if strict English law about the tenure of real estate were to be applied to this kind of property, difficulties may arise in this country.

Attempt has been made from time to time to find a legal basis for what may be conveniently called “Panchaiti property” in this country. In Sivaraman Chetti v. Muthaya Chetti, a village tank was assumed by the Privy Council as the property of all the villager of a village. In Bhola Nath Nundi v. Midnapore Zemindary Co. Lord Macnaghten emphasised the necessity of finding a legal origin for ancient possession and warned against the danger of applying indiscriminately the English law of real estate to conditions prevailing in this country, in these words:

“It appears to their Lordships that on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the court finding a legal origin for the right claimed. Unfortunately, however, both in the Munsif court, and in the court of the Subordinate Judge, the question was overlaid, and in some measure obscured, by copious references to English authorities, and by the application of principles or doctrines more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions.”

In Navroji Manekji Wadia v. Dastur Kharsedji Mancherji(3) the question definitely arose whether a fluctuating and indefinite body can own property and though the point was not finally decided Sir Lawrence Jenkins in delivering the judgment of the Court observed as follows:

“The first argument urged on this point for the defence is that the suit is based on, ownership, and that a fluctuating body of persons, such as the plaintiffs claim to represent in this suit, is incapable of property. We are not prepared to assent to the proposition that in this country a body such as we have represented before us is incapable of property, for even if we pass by the alleged ownership of property by a caste as not being definitely established, there can be no doubt that the village community is capable, or property, and in Yajnavalkya we have a distinct recognition of ownership by a fluctuating body, for in chapter II, v. 18, it is said: ‘whoever appropriates what belongs to the, community… shall be made to forfeit his property and be banished the realm.’ The commentary in the Mitakshara on this verse is, ‘whoever appropriates what belongs to the community, i.e anything which is the common property of all the villagers collectively and the like bodies.’ We take this passage from the Mitakshara, Vyavahara Adhyaya, translated by Mr. Girish Chandra Tarkalankar. Moreover, that property may belong to a village is recognized in the judgment of the Privy Council in Sivaraman Chetti v. Muthaya Chetti. But it really is unnecessary to go into this question because it is a mistake to say that the suit is based on ownership alone; from the plaint it is clear this is not so.”

In Probhat Chandra Sen v. Hari Mohan Dhupi, the point again arose and was left finally undecided with the following observations on page 210:

“It appears, however, that the right of a fluctuating body of persons such as the residents of a village to property or to right of pasturage has been recognized by the Privy Council, and although there is no case in which the right of a particular caste or community to hold property (except in the case of Jivanji Jamshedji v. Barjorji Nasservanji, in which the right of the Parsi Anjuman to hold property was not disputed) has been decided, there are observations tending to show that such a body of persons is capable of owning property: See the observations of Sir Lawrence Jenkins, C.J, in the case of Navroji Manekji v. Dastur Kharsedji(4).”.

There seems some difficulty in accepting the view that the community itself may in such cases be regarded as a juristic person owning and folding the property. No doubt in Vidyapurna Tirtha Swami v. Vidyanidih Tirtha Swami(5) Sir Bhashyam Ayyangar expressed the view that in cases of Hindu religious foundations the entire community for whose benefit the foundation existed may be regarded as a juristic person; but this view has, not received general assent and in the recent case of The Mosque, Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, Sir George Rankin refused to apply juristic personality to a Muhammadan mosque and his Lordship deprecated the tendency of creating or recognizing new juristic personalities.

We do not wish to cast any doubt on the validity of titles of “Panchaiti property” or upon the validity of titles which arise by ancient possession. Where possession of a fluctuating and indefinite body goes back to time immemorial or “so far as the memory of manrunneth” a legal origin can always be found for such possession and it can be protected and maintained. But apart from ancient possession where legal origin may be presumed and apart from incorporation and trust and like cases we do not think that the law allows in this country a fluctuating and indefinite body to own and hold real property, nor do we think the law allows in this country to a fluctuating and indefinite body to acquire property by mere prescription or adverse possession.

Now in this case before us the defendants, or in other words the Chaube community of Gali Bhar and Gali Tewari, have been from time immemorial in possession of the Tila and from time immemorial Kans-ka-Tila has been associate with scenes or Hindu religion and mythology. Over a portion of this Tila stand certain temples and another portion of this Tila is reserved for an annual religious ceremony and the entire property has got to be preserved and maintained in its present condition for certain religious purposes. It is possible that the property is a dedicated property, partially or entirely dedicated for the benefit of the Hindu public or for the Chaube community of Gali Bhar and Gali Tewari. It is also possible that the Chaube community of Gali Bhar and Gali Tewari are mere superintendents and managers on behalf of the Hindu public. It is also possible that the Chaubes of the said two streets are beneficiaries and that there is a charitable trust in their favour and in the dim past in times of Hindu Rajas or Muhammadan Kings a trust was created in favour of the Chaubes or in favour of the Hindu public making the Chaubes trustees and as the zamindari passed from hand to hand and the ownership of the Tila came to be vested from time to time in the hands of the zamindars and proprietors it devolved burthened with a trust in favour of the public or of the Chaube community. It is also possible that there may be customary rights in favour, of the Chaubes of Gali Bhar and Gali Tewari by virtue of which they are entitled to maintain Kans-ka-Tila in its present form and to remain in possession of it and to make certain religious and ceremonial use of it.

Unfortunately these questions were not raised and considered at the trial and the case there proceeded upon the common pleadings that the property in suit was to be regarded as an ordinary immovable property of secular nature which was susceptible of ownership on the part of the plaintiffs and of adverse possession on the part of the defendants. It was further accepted by both sides in the trial court that a fluctuating and indefinite body like the defendants could acquire and hold property by adverse possession. We are definitely of opinion that if the property had been of a secular nature or if the defendants' possession had been only of recent origin of a little over 12 years, such a length of possession by a fluctuating and indefinite body like the defendants and such acts of possession as the defendants have exercised over the property and which we have mentioned above would not give to such a body as the defendants a right to own or hold such property or to acquire any title to it by prescription or adverse possession. But in a case like this, where possession goes back to time immemorial and where the property on the face of it is not of a secular nature and is a subject of religious use, long possession of the defendants cannot be lightly disregarded.

In Attorney-General v. Lord Hotham, the Master of the Rolls in giving his judgment in the case says:

“Very high Judges have said they would presume any thing in favour of a long enjoyment and uninterrupted possession. Suppose this case was now submitted to the consideration of a jury, and the Parliamentary survey and the Court Rolls of the manor were produced to shew that these lands belonged to the Crown, and no other evidence was produced to prove that fact; and, on the part of the parish, the parish books were produced, containing these different entries, and it was proved that the parish had been in the quiet enjoyment and uninterrupted possession of this property for 110 years,—would not that be conclusive? Is not 60 years' possession a title against the Crown? Is not 110 years' possession sufficient to put an end to any claim as to this property? We must suppose that persons who have a right to property will assert that fight, and if they lay by for 110 years, and suffer the property to be enjoyed by other persons, that enjoyment must constitute right. I cannot have the least hesitation in saying that whatever may have been the origin of the possession of these lands by the parish, that possession, coupled with the circumstance that the party, who it is said is entitle, has been standing by and making no objection to the property being enjoyed as the separate property of the parish, must decide the question; and that we must consider these lands as having been originally granted to trustees for the benefit of, the parish, and to be enjoyed by them as their separate exclusive property.”

In Goodman v. Mayor of Saltash, Selborne, L.C, observed: “But an open and uninterrupted enjoyment from time immemorial under a claim of right seems to me to be all that is necessary for a presumption that it had such, an origin as would establish the right, if a lawful origin was reasonably possible in law.”

We are therefore of opinion that the possession of the defendants which goes to time immemorial should be presumed to have a legal origin and must be respected, though it is not possible, having regard to the pleadings in this case, to find the nature and the extent of this possession.

The plaintiffs in the action ask for a declaration which consists of two parts; firstly that it may be declared that the plaintiffs are, owners of the entire plot of land specified in the plaint within certain boundaries, and secondly that the defendants have got no interest whatsoever in the said plot derogatory to the proprietary rights of the plaintiffs. The second part of the declaration cannot be granted to the plaintiffs because it is manifest that the defendants have got rights in the property in suit which are derogatory to the proprietary rights of the plaintiffs. It is not claimed that the plaintiffs can exercise full proprietary rights over the Kans-ka-Tila it is conceded that the Kans-ka-Tila has got to be maintained substantially in its present form and it cannot be levelled up and turned into a building site or diverted to any other use which would prevent its being used for the religious purposes for which it has been used from time immemorial. It is also clear that from a long time past the defendants have been in possession of the Tila and have been managing it and exercising various rights, over it and there exist over the Tila their buildings and temples which cannot be removed. The first part of the declaration which seeks to establish the plaintiffs' ownership of the “entire plot” may, however, be granted in a modified form. A portion of the Tila was the subject-matter of litigation in previous suits and it has gone out of the controversy and the plaintiffs admittedly can get no declaration about it. Over another portion of the Tila there exist buildings and structure and a staircase and temples and water pipes and arena; these buildings and constructions and so much of the land as is necessary for their enjoyment cannot be the subject of any declaration in faveur of the plaintiffs. But with regard to the remaining portion of the Tila, which remains after excluding that portion which was the subject-matter of the previous suits between the plaintiffs and the Chaubes and that portion which is covered by buildings and structures erected by the Chaubes and so much of the land as is necessary for the enjoyment of those buildings and constructions, the plaintiffs are entitled to a declaration of title but subject to the rights of the defendants to use and occupy the said plot and to manage it.

In the result we allow both the appeals in part, discharge the decree of the trial court and in lieu thereof grant a decree to the plaintiffs to the following effect. It is declared that the plaintiffs are the owners of the plot of land No. 4364 situated in khewat No. 1, mahal Ghairkhwahindgan, mauza Muttra, bounded as [boundaries here set forth], save and except the land and buildings and constructions situated in the said Tila and marked on the plan prepared by the Commissioner, dated the 19th of September, 1934, with the letters A, B, C, D, E, F, H, J, K and other buildings and constructions shown, on the said plan and so much of the land as is necessary for their enjoyment, but subject to the rights of the defendants to use and occupy and manage the said plot and to exercise such rights over it as they have been using, occupying and enjoying hitherto, with which use, occupation, management and exercise of rights the plaintiffs shall have no power to interfere.

In the circumstances of the case there will be no order as to costs in favour of the plaintiffs or the defendants either here or in the court below.