Judgement

Appeal (No. 80 of 1929) from a decree of the High Court (June 20, 1927) affirming a decree of the Special Land Acquisition Judge of 24-Parganas (July 9, 1925).

The appeal arose out of proceedings under the Land Acquisition Act, 1894, whereby the Government acquired a plot of land, with a house thereon, situated within the Barrackpore cantonment. The Collector made an award in favour of the respondent in respect of the value of €he house only. The question arising upon the appeal was whether the respondent was entitled also to the amount awarded by the Collector, after a remand, in respect of the land.

The facts of the case and the revelant provisions of a notification issued by the Secretary to the Government, Military Department, in 1836, appear from the judgment of the Judicial Committee.

The High Court, affirming the view of the Special Land Acquisition Judge, held that the respondent was entitled to the compensation. The learned judges (Ghose and Roy JJ.) were of opinion that the cantonment rules, and other documents before them, did not show that all land within a cantonment belonged to Government. It appeared from the rules that an owner of Government land so situated was bound to obtain the leave of the authorities before erecting structures upon it. The absence of any record of permission having been granted as to the land in question showed in their opinion that the Government had no concern with it. The presumption from the respondents long undisturbed possession without payment of rent was that he was the owner.

1930. July 18, 21, 22. Dunne K.C. and Wallach for the appellant. All land within a cantonment belongs prima facie to Government. That view is supported by the terms of the Cantonment Regulation of 1836. The revenue survey map of 1851 shows that all lands in the Barrackpore cantonment were Government property. Documents dating back to 1775 show that Government acquired the land constituting the village of Barrackpore. In the absence of any assessment of the land to revenue, and of registration as private land under the Bengal Land Registration Act, 1876, the respondent did not discharge the onus upon him. No inference adverse to Government can be drawn from the fact that there was no record of sanction being given to erect the house. The facts were similar to those in Robinson v. Carey (( 1865) Cor. Rep. 137.), in which Norman J. decided against a claim to land in the Barrackpore cantonment based on a possessory title. [Reference was made also to Ghaswala v. Secretary of State (( 1911) L. R. 38 I. A. 204); Bank of Upper India v. Secretary of State for India (( 1910) I. L. R. 33 A. 229.), and to a decree of the Supreme Court, Bengal, in Burney v. Bagshaw. (July 24, 1840 (Ryan C.J., Grant and Seton JJ.). Unreported. Record, Pt. II., pp. 61, 62.)] The plot of land now in question was recorded in the mauzawari register in 1853 as a mehal " khas sircar/ i.e., in the possession of Government.

Upjohn K.C. and Dube for the respondent. The question of ownership was one of fact, and there are concurrent findings in the respondents favour. The judgment of the Board in Ghaswalas case (2) has no bearing, as in Bombay all cantonment land was expressly declared by regulation to be the property of Government. The rules of 1836 do not so declare even by implication as to cantonment land in Bengal. The observation in Robinson v. Carey (1), which is relied on, was obiter. The case before the Supreme Court in 1840 turned upon its particular facts; no general rule was laid down. The Allahabad case has no bearing. The respondent proved possession since 1871 ; that raised in his favour a strong presumption, which was not rebutted by the evidence. The entry in the mauzawari register was not admissible under s. 35 of the Evidence Act. [Reference was made also to the Cantonment Acts, 1889 and 1910, and rules made thereunder.]

Dunne K.C. replied.

Oct. 14. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. Th