Mookerjee, J.:— This is an appeal under sec. 54 of the Land Acquisition Act, 1894, against an order of the Subordinate Judge of Hughly apportioning the amount of compensation in a case referred to him for decision under sec. 30 of the Act. The property acquired is described in these proceedings as the Hanumant Burning Ghat situated on the bank of the river Hughly within the District of Howrah. The total amount of compensation awarded by the Collector for the property acquired was Rs. 28,245-14-11 p.; out of this sum Rs. 1,013-4-0 represented the market-value of the site of the burning ground, Rs. 2,686-0-3 p. the value of the building, compound wall, platform and the flight of stairs leading to the river, Rs. 24,388 the damages for the reconstruction of a new burning ghat by the Municipality elsewhere, and the balance, about Rs. 158 was the statutory allowance of 15 per cent, upon the market value of the land. The dispute as to the apportionment of the compensation arose between the Chairman of the Howrah Municipality, the Raja of Andul, and certain persons, described as the Chowdhuris. The Municipality claimed the whole of the compensation on the ground that the place had been maintained by the Commissioners as a burning ground ever since the creation of the Municipality in 1864, that it has vested in them under the provisions of the Bengal Municipal Act, and that in any event they have acquired an indefeasible title to it by adverse possession for the statutory period. The Raja of Andul, Khettra Kristo Mitter, claimed the compensation for the land, to which he set up a lakhiraj title and which he alleged had been allowed by his predecessors to be used as a burning ground by the public; he also claimed the compensation awarded for the buildings which he stated had been erected by his predecessors and repaired at his expense from time to time. The Chowdhuris claimed the compensation for the land only which they alleged formed part of their zemindari; they denied the lakhiraj title set up by the Raja of Andul as well as the title of the Municipality. Neither the Raja of Andul nor the Chowdhuris preferred any claim to that portion of the compensation which had been awarded as damages for the shifting and reconstruction of the burning ground. In the Court below, the learned Subordinate Judge held that the Chowdhuris had failed to make out their alleged title to the land acquired, as the mal land of their zemindari, and as they have now retired from the litigation, no further reference need be made to the claim set up by them. As regards the Raja of Andul, the learned Subordinate Judge found that the title alleged by him was well established. He held upon the evidence that the land originally belonged to the ancestors of the Raja, that they dedicated the user of the property to the public for the purposes of a burning ground, that the Hindu public of the neighbourhood used the land as a burning ground, that the masonry structures were constructed by an ancestor of the present Raja and that they were repaired from time to time by him or at his cost. The learned Judge also found that the Municipality had absolute control over the management of the burning ground, that they employed suitable persons to perform duties in connection with the cremation of the dead, that they adopted the necessary conservancy measures and that in 1899, they spent Rs. 196 upon the construction of a flight of stairs from the burning ground to the river. Upon these findings, the learned Subordinate Judge concluded that the burning ground was a ghat within the meaning of sec. 30 of the Bengal Municipal Act, 1884, and that under that section, the user of the property, but not the ownership in it vested in the Municipality. He held accordingly that the Raja was entitled to the compensation awarded for the land and the structures, less Rs. 196 which the Municipality were entitled to, as they had spent this sum in constructing the stair-case. Against this award, the Municipality have preferred the present appeal and on their behalf the decision of the Court below is challenged substantially on two grounds. It is contended in the first place that the evidence does not establish that the land belonged at any time to the Raja of Andul, and it is argued in the alternative, that if the land ever belonged to the Andul Raj, the evidence does not establish that the dedication to the public was merely of the user and not of the entire ownership. In the second place, it is contended that under sec. 30 of the Bengal Municipal Act, the land as well as the structures vested in and belonged to the Commissioners and they are consequently entitled to the whole of the compensation. In any opinion, neither of these contentions is well-founded, and subject to a slight modification which will be indicated later on, the decree made by the Court below is substantially correct and ought to be affirmed.

As regards the first ground which raises the question of title to the land acquired, the learned Subordinate Judge found that it was originally the property of the Andul Raj and did not form the mal land of the estate of the Chowdhuri zemindars. I see no reason to differ from the Court below in its conclusion that the zemindars had failed to establish their alleged title. The question of title was litigated in the Court of first instance between the Chowdhuris and the Raja, and the Municipality did not make any attempt to prove that if the land originally belonged to either of the contesting parties it had ever vested in the Municipality under any grant. On the other hand, the witnesses examined on behalf of the Raja alleged that the property belonged to him. I see no reason to distrust their testimony which is considerably strengthened by the undoubted fact that the burning ground was enclosed by walls at the expense of the Raja, that the buildings for the temporary residence of dying people were constructed at his cost and that the repairs on many occasions were effected out of funds supplied by him. If, therefore, the land acquired originally belonged to the Raja, as it must be held it did, the question necessarily arises whether he has lost his title to it. It is suggested on behalf of the Municipality that if the land originally belonged to the Raja, he must be assumed to have parted with all his rights in it when he allowed the public to use it as a burning ground. The learned Subordinate Judge, on the other hand, adopted the view that the dedication was not of the entire proprietary interest in the land, but merely of the user thereof. The learned vakil for the Appellant controverted this position and suggested that there is no distinction between the dedication of land and the dedication of the user of land to public purposes, and that, at any rate, if there is such distinction. It does not affect the present case. I am wholly unable to accept this argument as well-founded, and must hold that according to principles which are hettra Kristo Mitter firmly settled and which will presently be explained, the title to the land which was originally in the Raja, has not vested in the Municipality. It is perfectly true that a dedication of land to public purposes need not necessarily be express, but may be implied from the conduct of the owner. Where the owner sets apart land for the use of the public and formally declares that such is his intention, or where he conveys land to a Municipality or to trustees to hold for the use of the public, the dedication is an express one. An implied dedication arises by operation of law from the acts of the owner and is really founded upon the principle of estoppel; it proceeds not upon the principle that a grant has actually been made, but rather on the principle that the owner having allowed the public to enjoy the user, for any particular purpose, is estopped from denying the right of the public to the enjoyment of such user. It is not necessary for our present purposes to consider what would amount to acquiescence on the part of the owner sufficient to raise the presumption; but it is quite clear that exclusive and continuous user by the public with the owner's knowledge and acquiescence for the prescriptive period, will raise the presumption of a grant and dedication to the public [Bessin v. Jenkins(1), Kennedy v. Cumberland(2) and Boyce v. Kalbough(3) in the last of which cases it was said that the continuous and notorious user of land for 20 years as a public burial place with the acquiescence of the owner affords presumptive evidence of its dedication to that purpose]. In cases, however, where the dedication is not express but merely implied and, consequently, there is no deed defining the extent of the rights created by the dedication, a question may arise as to whether the dedication is of the entire ownership in the land or merely of the right of user, because, as observed in Grogan v. Haywood(4) and Bushnell v. Scott(5) a dedication is a devotion to public uses, either of the land itself or of an easement in it, by any unequivocal act of the owner of the fee manfesting such dear intention. An owner may appropriate land to public use and yet retain in himself all such rights in the soil as are compatible with the full exercise and enjoyment of the public use to which the property has been devoted. It is not essential to constitute a valid dedication that the legal title should pass from the owner New Orleans v. United States(6)], nor is it inconsistent with an effectual dedication that the owner should continue to make any and all uses of the land which do not interfere with the uses for which it is dedicated. [Washburne on Easements, sec. 137 and notes to State v. Trask(7)]. This view of the law is amply substantiated by the decisions in St. Mary v. Jacobs(8) and Jaggnmoni v. Nilmoni(9). In the case before us, there is nothing to show that the dedication by the Raja was of his entire ownership in the land; no deed has been produced and apparently none ever existed. What has happened is, as happens very often in this country, the Raja has allowed the Hindu public of the neighbourhood to use the land in question as a burning ground, and, no doubt, regarded it as a pious and meritorious act, beneficial to the public. There is not the remotest suggestion that the Raja intended to make an absolute gift of the land to the public, irrespective of the uses to which it might be put; and any such suggestion, if made, would be effectively negatived by the circumstance, that for more than thirty years at least, the Raja was uniformly looked up to for the improvement of the property. The only inference which may legitimately be drawn from the circumstances of the case appears to be that the Raja made a dedication of the user of the property for the purposes of a burning ground, such dedication to remain in force only so long as the property continued to be used as a burning ground. The question, therefore, arises what is the effect of the abandonment of the site as a burning ground by the public, even though, such abandonment is caused by statutory acquisition of the land. It is, no doubt, true that it is one of the essential elements of a good dedication that it be made to the public, that it be irrevocable and that the land be for ever dedicated for the designated public use [Dawes v. Hawkins(10), San Francisco v. Cananan(11)]. But after a valid dedication has been made, if the use for which the property is dedicated becomes impossible of execution or if the object of the use wholly fails, there is an abandonment in consequence of which the rights of the public therein fail and a reversion takes place, as the dedication has spent its force when the use ceases. It is well settled, that if land is dedicated for cemetries or burial purposes and there is subsequently an abandonment, the property so adandoned reverts to the dedicator or his heirs [Campbell v. City of Kansos(12), New Ark v. Watson(13), Board of Commissioners v. Joung(14) and Board of Education v. Edson(15)]. When, therefore, in the case before us the sole use to which the property had teen dedicated became impossible of execution, by reason of a statutory acquisition and compulsory use for purposes inconsistent with the original dedication, it must be taken to have reverted to the dedicator or his representative, the present Raja, and he is consequently entitled to the compensation awarded in respect of the property. The learned vakil for the Appellant placed considerable reliance upon the judgment of the Judicial Committee in Monmotha Nath v. Secretary of State, and strenuously contended that the view taken by us is inconsistent with that decision. In my opinion, the case before the Judicial Committee is clearly and completely distinguishable. In that case a portion of the property taken up was covered by a public road. The question was raised whether the owner was entitled to any compensation for the portion of the land covered by the road. The Court of first instance held that as by virtue of the acquisition the land would cease to be used as a road, it must be taken to revert to him as property unencumbered by the user, and that consequently, he was entitled to have it valued and the price fixed at the same rate as for the adjoining land. The High Court reversed this decision, and held that the owner was entitled to no compensation because the land, as road-land, had no separate market-value, or at any rate that it had not been proved to have any separate market-value. This view was affirmed by their Lordships of the Judicial Committee. Lord Hobhouse in delivering judgment observed, in the first place, that it was not suggested that the land as a road-way had any market-value, and pointed out, in the second place, that the Sub-Judge in valuing the land as belonging absolutely to the owner, free from the burden of the road, and capable of being used for any purpose, had fallen into the error of taking into consideration an iucrease in the value of the acquired land which accrued from the use to which it would be put after the acquisition. Under the provisions of the Statute, the value of the land must be ascertained with reference to the point of time when the land is acquired, which is the point of time at which the right to compensation attaches. Their Lordships accordingly pointed out that as at the time of acquisition, the land in dispute was a roadway which had admittedly no market-value, the claim of the owner was in reality for a supposed loss of value which had no existence when the ownership of the land was changed, and that consequently, he was not entitled to any compensation. The case before us manifestly stands upon an entirely different footing. Here the Collector has found no difficulty in determining the amount of the compensation payable for the acquired property, treated as a burning ground at the date of its acquisition. It is not suggested that the valuation is erroneous or that the property had no market-value. The only question is as to the mode in which the apportionment is to be effected; there was no question of apportionment in the case before the Judicial Committee, as there was in fact nothing to apportion. In the case before us, we have to determine who are the persons to whom the amount of compensation awarded is payable, and the answer to this question must depend upon the determination of the rights and interests of the several claimants to the property at the time of its acquisition. The view, that there is a substantial distinction between the question which was raised in the case before the Judicial Committee and the question which arises for decision in the case before us, is supported by a considerable body of authorities. Thus, for instance, in the cases of Hilcoat v. Archbishop of Canterbury(17), Stebbing v. Metropolitan Board of Works(18), and City and South By., Co v. St. Mary Wooluath(19), the question was raised as to the manner in which valuation is to be made of land acquired when it is subject to restrictions as to use, for instance, land used as a churchyard or a grave-yard. In the first case it was held by the Court of Common Pleas that the value was to be determined as if the land belonged to the owner, discharged of the use to which it has been devoted, Sir Thomas Wilde, C.J, observing that by the appropriation of property to ecclesiastical or spiritual purposes, the owner voluntarily sacrifices the pecuniary value of the property so appropriated, but he makes that sacrifice to obtain an object which he estimates of greater value than pecuniary value; but when that object in entirely withdrawn from him by the application of the property against his will to secular uses and those uses connected with pecuniary profits, it does not seem consistent with justice to estimate the value to the owner upon the footing of its irrevocable appropriation to those spiritual purposes from which it has been already withdrawn.” In the second case, Stebbing v. Metropolitan Board, it was held that when land, subject to restrictions as to its use, is taken under compulsory powers, the amount of compensation payable to the person interested therein is to be assessed with reference to the value of his interest therein and not with reference to its value to the person taking it; in other words, that when land used as a burial ground is acquired, it has to be valued not as secularised by the acquisition, but as consecrated and devoted to the purposes of a burial ground. This view is based on the same principle as underlies the decision of the Judicial Committee which is founded upon a construction of the provisions of the Land Acquisition Act, In the third case, City and South London By., Co v. St. Mary Wooluath, the Court of Appeal went back to the view taken by Wilde, C.J, in Hilcoat v. Archbishop of Canterbury and expressed their preference for it over the principle of Stebbing v. Metropolitan Board of Works. The three cases just referred to, therefore, are authorities on the question of the principle of valuation of land subject to restriction as to use. On the other hand, in the cases of Campbell v. Mayor of Liverpool(20), Ex parte Rector of Liverpool(21) and Ex parte Rector of St. Martin's, Birmingham(22), the question was raised as to the principle upon which compensation, when it has been awarded for land subject to restrictions as to use, has to be apportioned amongst persons interested in the property. In the first case, it was held that under the circumstances under which the dedication had been made, there was no right of reverter to the original owner when the land ceased to be used for the purpose for which the dedication had been originally made. In the other two cases, it was held that the inhabitants of the parish who were entitled to use the land as a burial ground had no interest in the soil and were not entitled to any portion of the sum awarded under Land Clauses Act. It appears to be clear that there is a well marked distinction between the two classes of cases. In the first class of cases, of which the case before the Judicial Committee may be taken as the type, it may be held that sterilization is so permanently attached to ownership as to deprive the owner of all claim to compensation. In the second class of cases, it may be held that the land, though it is subject to restrictions as to use, has still more value, and the only question which requires solution is, who is the person interested in the property and consequently entitled to the compensation assessed on this principle. In the case before us the Collector has awarded compensation for the land as a burning ground; this sum rightfully belongs to the owner the Collector has also awarded compensation for the loss of user of the land as a burning ground which is described as damages for re-construction of a new burning ground; this sum rightfully belongs to the Municipality. This view is in no way inconsistent with the decision of the Judicial Committee in Monmotha Nath v. Secretary of State the facts for which, as has been already observed, were wholly different from those of the case before us. As pointed out by Lord Halsbury, L.C, in Quinn v. Leathern(23) “every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there, are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.” It must be held on these grounds that the first point taken on behalf of the Appellant cannot be sustained and must be overruled.

The second ground taken on behalf of the Appellant turns upon the construction of sec. 30 of the Bengal Municipal Act, under which it is argued that the land as well as the structures were vested in and belongs to the Commissioners, who were consequently entitled to the whole of the compensation. Sec. 30—I quote only so much of it as may have any possible bearing upon the case before us— provides as follows:— “All ghats in any Municipality (not being private property and not being maintained by Government or at the public expense) now existing, or which shall hereafter be made and the pavement stones and other materials thereof, and all the erections, materials, implements and other things provided therefor shall vest in and belong to the Commissioners.” It is maintained on behalf of the Appellant that the term ghat in this section includes a burning ground. I am unable to accept this view. The word ghat ordinarily means a flight of steps made of wood, brick, stone, iron, etc., for access to the water of a tank or a river; it also means the place on a river bank (or on a tank), where people ordinarily bathe or where boats are moored for purposes of a ferry or otherwise, or which is used for the purpose of loading or unloading goods. The word ghat does not include a tract of land used as a burning ground. It may be observed that the term ‘burning ground’ is used in various sections of the Bengal Municipal Act, see for instance secs. 87, 98 and 254 to 256. On the other hand, secs. 347 and 348 use the word ‘burning ghat.’ Upon an examination of all the sections it appears that the word ‘ghat’ in sec. 30 was not intended to include a burning ground; indeed, if it was the intention of the Legislature so to include it, it is difficult to see why burial grounds, which in other portions of the Act are placed substantially on the same footing as burning grounds, should have been excluded from the operation of this section. I am unable to hold therefore that the title to the burning ground in this case vested in the Municipality. This view is supported by a very significant circumstance. Under sec. 30 as it stood before its amendment by Act IV of 1894, sec. 22, it had been held in the cases of Chairman of Naihali v. Kishori Lal(24) and Modhusudan v. Promoda Nath(25), that the term ‘road’ comprised only the surface of the road and not the sub-soil underneath it. In 1894, the Legislature amended the section, so as to make all roads including the soil, vest in the Commissioners. The other words of the section however were left unaltered, and the inference is, there-fore, irresistible that the term ghat does not include any portion of the sub-soil and cannot consequently apply to the burning ground itself. I may further add, that there are many places throughout the country far away from any river, where there are burning grounds which are not and cannot by any stretch of language be called ghats, and rt would not be a proper construction of the Act to hold that the term ‘ghat’ in sec. 30 was intended to include only such burning grounds as may be called ghats. On all these grounds, I find it impossible to hold that the title to the land of the burning ground in this case vested in the Municipality or that the Municipality are entitled to the compensation awarded for the land, and for the structures erected thereon at the expense of the Raja. As regards the ghat itself, however, the learned Subordinate Judge has found— and his finding has not been challenged before us — that it was erected at the cost of the Commissioners and that it was not a private ghat. Under sec. 30, therefore, the ghat itself, though not the sub-soil underneath it, vested in and belonged to the Municipality. A question was raised before us as to the true effect for the words “not being private property and not being maintained by Government or at the public expense” which find a place in sec. 30. In my opinion, the phrases connected by the conjunction ‘and’ must be taken distributively and not collectively. The section clearly means that all roads, etc., shall vest in the Commissioners but roads, etc., being private property shall not so vest, and roads, etc., maintained by Government or at the public expense shall also not vest. The intention of the Legislature appears to have been not to vest in the Commissioners such roads, etc., as are either private property or are maintained by Government or at the public expense. So far as ghats are concerned, however, it may be observed that secs. 30 and 32 overlap and there; is an apparent inconsistency. It must consequently be held that the ghat in this case belonged to the Municipality and under sec. 30, they are entitled to the value of the materials of the ghat as also of the platform which latter item the Subordinate Judge has not allowed. The total value of the stair-case and platform appears from the Collector's proceedings which we have called for, to be Rs. 306. As the Subordinate Judge has made a decree in favour of the Municipality for Rs. 196 only, it must be varied to this extent. The Municipality will therefore have a decree for Rs. 306 and the balance will be awarded to the Respondent.

As the appeal has substantially failed, the Appellant must pay the Respondent his costs in this Court. The hearing fee is assessed at 8 gold mohurs.

Rampini, J.— I agree.

N.G