Judgement Appeal from a decree of the Court of the Judicial Commissioner of Hyderabad Assigned Districts (December 12, 1901), reversing a decree of the Superintendent Residency Bazar, Hyderabad (March 25, 1901). The principal question decided was as to the title to a plot of land on which stands a Parsi "tower of silence," situate in the south-eastern corner of the cantonment limits of Secunderabad. In 1837 two brothers, Viccaji Meherji and Pestonji Meherji, were carrying on a business at Hyderabad, and determined to reside there permanently. In order that they and their family might have a proper place of burial, together with the due observance of religious ceremonies, they made arrangements with the Parsi high priest at Poona to send Parsi priests to Hyderabad, who were to be the paid servants of the brothers, with liberty to add to their salaries by the receipt of fees for services perform ed for other members of the Parsi community resident in the neighborhood. When these arrangements were completed an application was made to the Nizams Government for the grant of a plot of land on which to erect a temple and tower of silence, or " dukhma." This application was granted, and, though no grant in terms was produced in evidence, an order reciting the application and the sanction of the Nizams Government thereto, and directing the delivery of possession of the land granted to the two brothers, was produced, dated June, 1838, and is set out in their Lordships judgment. Before proceeding to erect buildings on the said land, as it was to be used as a place for the disposal of the dead and was situate close to the cantonments at Secunderabad, the permission of the general commanding at that place was obtained by an order made on January 15, 1839, also hereinafter set out. The brothers then enclosed the lands, and built a tower of silence for depositing their dead. Up to 1861 the descendants of the brothers maintained the buildings on the lands, and at their own expense performed all ceremonies and kept priests for the purpose as paid servants. They allowed other Parsis to use the tower of silence, and to subscribe for the purposes connected there with, but no claim was made in derogation of their ownership. Up to 1861 the descendants of the brothers maintained the buildings on the lands, and at their own expense performed all ceremonies and kept priests for the purpose as paid servants. They allowed other Parsis to use the tower of silence, and to subscribe for the purposes connected there with, but no claim was made in derogation of their ownership. In the year 1895 the tower was found insufficient for the needs of the Parsi community, and some of the defendants began to build a new tower to supplement the old one. The foundations of this new tower are stated by the Judicial Commissioner, after inspection of them, to be outside the wall surrounding the old tower and its appurtenances, but close by and on the same hill. The plaintiffs, who are descendants of the builders of the old tower, objected to the construction of the new tower, and on December 19, 1895, filed their plaint. It alleged a title to the land in suit derived by inheritance from the brothers, and the trespass by the commencement of building operations. It prayed for a perpetual injunction restraining the defendants from " encroaching upon" the said land, and an order directing the removal of the building material brought on the said land, with a restoration of the land to its original condition. The contesting defendants denied the title as alleged, and contended that a grant of the land was made to the Parsi community in general, and further asserted that if the title at any time was in the brothers, they had in October, 1839, dedicated the property in suit, since which time the Parsi community in general had been in possession and enjoyment of the same. The Court then took proceedings under s. 30 of the Civil Pro cedure Code, so as to bring the whole Parsi community on the record as defendants, and on November 12 ninety-nine Parsis filed a written statement confessing judgment, and disclaiming the defence already taken. The Superintendent decided that a grant of the land in suit was made to the brothers personally, and not to the Parsi community, and that there never had been any dedication of the property so as to constitute the Parsi community owners thereof, or the brothers trustees for them. The Superintendent decided that a grant of the land in suit was made to the brothers personally, and not to the Parsi community, and that there never had been any dedication of the property so as to constitute the Parsi community owners thereof, or the brothers trustees for them. The action of the defen dants was therefore wholly unjustifiable, and he accordingly made a decree granting the plaintiffs the relief’s claimed by them, with costs. The Judicial Commissioner, in reversing this judgment, agreed with the Court below that there had been no dedication by the brothers to the Parsi community, but disagreed with him as to the effect of the document in 1838, called exhibit L. In reference thereto he said " But in my opinion the main weakness of exhibit L is that it does not, even if fully admitted in evidence, prove plaintiffs contention that their two ancestors were granted the hill to be their own exclusive property. Exhibit L is a description at third hand of the grant, and does not give, and cannot be held to give, an exact description of the exact terms of the grant. It simply recites that the hill was granted to Pestonji and Viccaji, but it does not give such a detailed account of the grant as would enable any one to know the exact terms of the grant, namely, whether the grant was made to these two gentlemen personally, or on their application to them for the use of the whole Parsi community." He further decided, after an examination of the documentary and oral evidence on the record, upon which the plaintiffs relied, that it failed to shew that they were at any time exclusive owners of the hill. He concluded " Finally, I am bound to say that when the plaintiffs do not know so much about their title as to be able to say whether it is oral or documentary, it seems strange that they should profess to know so much about it as to be able to say that the title was given to them personally and not for the benefit of the Parsi community. To sum uj3, I find that the plaintiffs have failed to prove any grant, oral or documentary, by which they acquired an exclusive title over the hill in dispute, and I also find that they have failed to support such alleged title by conclusive proof of exclusive possession, and still more they have failed to prove that they have acquired any title by exclusive possession." Jardine, K.C., and De Gruyther, for the appellants, contended that on the evidence it was proved that the title to the lands in snit had been vested in the two brothers, Viccaji Meherji and Pestonji Meherji, for their own benefit absolutely. There was a concurrent finding that they did not at any time dedicate it so as to constitute the Parsi community owners thereof or themselves trustees for that community. It was not alleged that the grant in the first instance to the two brothers was made to them as trustees, and the Parsi community had not proved any grant to them. Ross, for the respondents, contended that the appellate Court was right in finding that the appellants had not proved any grant of an exclusive title to them of the property in suit. They did not even know whether their alleged grant was oral or documentary, but relied on a recital in somewhat vague terms contained in the document of 1838 of a Government sanction to a grant before that date, the terms of which were not specified and, as the evidence shewed, were not known. That is insufficient to dispose of the issue which has arisen, whether the grant was to the brothers personally or for the benefit of the Parsi community. The appellants failed to shew that they had acquired title by proof of exclusive possession, or that the respondents were excluded from all rights in the property so as not even to be able to build a new tower of silence thereon without the appellants consent. There had been sufficient user of the land and expenditure thereon y the respondents to disprove the appellants exclusive claim. Jardine, K.C., replied. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. The controversy o at of which this appeal arises lies between various member of the Parsi community, and relates to certain land situated in the Secunderabad cantonment, on a portion of which stands a Parsi tower of silence. Jardine, K.C., replied. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. The controversy o at of which this appeal arises lies between various member of the Parsi community, and relates to certain land situated in the Secunderabad cantonment, on a portion of which stands a Parsi tower of silence. In or about the year 1895 the respondents, purporting to act on behalf of the Parsi community, resolved to erect on the land in question a second tower of silence in addition to that already there. The appellants objected to this proceeding, claiming as descendants and representatives in title of the original founders. Negotiations for a settlement having failed, the appellants filed the present suit. They alleged that the founders were in their lifetime the owners of the land in question, and that the property had devolved upon themselves, and they proceeded to complain of the respondents encroachment. The respondents, who were defendants in the suit, asserted that the land had been granted to the whole Parsi community for a public purpose, and to enure for the benefit of that community generally for all time, by the cantonment authority. In the Courts in India the defendants further set up that, if the grant had been to the founders, the latter had subsequently dedicated the land to the purposes of the Parsi community generally. It was also contended that a title, good against the founders and their representatives, had been acquired by adverse possession. On both those points the Courts in India found against the defendants, and their Lordships have not been asked to review those findings. The sole question discussed on the argument of the appeal was that of the original title to the property. The judge who tried the case decided in favour of the plaintiffs, now appellants, and granted an injunction. On appeal the Judicial Commissioner reversed that decision and dismissed the suit. Hence the present appeal. The founders, already mentioned, were two brothers, Parsis, Pestonji Meherji, and Viccaji Meherji, who in 1837 and after-wards carried on business as bankers at Hyderabad and in other places. On appeal the Judicial Commissioner reversed that decision and dismissed the suit. Hence the present appeal. The founders, already mentioned, were two brothers, Parsis, Pestonji Meherji, and Viccaji Meherji, who in 1837 and after-wards carried on business as bankers at Hyderabad and in other places. It appears from the correspondence that at about that time they had made up their minds to make Hyderabad their home, and they determined at the same time to establish a tower of silence, for which purpose it was necessary both to obtain the ground on which the tower could be built and to establish the necessary priests for carrying on the services and ceremonies required by the Parsi religion. It is clear that with regard to the establishment of priests everything was done by the brothers Pestonji and Viccaji. They found the proper persons, and arranged with them to come and settle at the spot to be selected. They undertook the responsibility for their salaries, though the priests were to be at liberty to receive fees for the performance of ceremonials from other Parsis. Pestonji and Viccaji also, through their agent at Secunderabad, made all the necessary arrangements for obtaining the site required. It is not necessary to examine all the contemporary papers in evidence. The most important document relied upon by the plaintiffs is the following — " Ijat asar (These words are left untranslated in the exhibit the original is in Telugu.) Balkishta Reddy, mucaddum of the village of Bholuckpore, in the district of Hoosain Saugar, may you be well, year 1248 Sal i.e. Fasli. The reason of writing this is that the bankers Pestonji and Viccaji having applied and Government having sanctioned the grant to them of the hill which is near Gattula Naganna Kunta in the Devini Bhavi Kancha within the boundary of the said village, for depositing bones, the Taluqdar Raja Rang Rao Bahadur has sent order and therefore it is hereby written that you deliver up the said hill to the said bankers Pestonji and Viccaji. Note that this is peremptory order in this matter. The date the 25th Rabiul-awal 1254 (i.e. June, 1838). "IBRAHIM KHAN, Naid (in Persian), Peith Mashirabad." This document was held by the judge who tried the case to be a genuine document, a finding for which he assigned cogent reasons. Note that this is peremptory order in this matter. The date the 25th Rabiul-awal 1254 (i.e. June, 1838). "IBRAHIM KHAN, Naid (in Persian), Peith Mashirabad." This document was held by the judge who tried the case to be a genuine document, a finding for which he assigned cogent reasons. The learned judge who heard the case on appeal pointed out a variety of circumstances which he thought threw suspicion upon the document. But he did not overrule the finding of the first Court that it was genuine. Their Lordships see no sufficient reason why they should reject that finding. The next document of high importance is the following— " This is to certify that the Parsis of Secunderabad have permission by order of Brigadier Wahab, C.B., commanding Hyderabad Subsidiary Force to enclose the hill by name Nomavunghutt for a burying place, the circumference of which is about (18) eighteen hundred feet, and immediately adjoining the south end of Nawganahs garden and near the public bearers line in rear of the cantonment of Secunderabad. " This hill is given for a tower only to be built on its summit. "H. F. F. CONSIDINE, Assistant Q.M.-General, Hyderabad Subsidiary Force. "Assistant Q.M.-Generals Office, Head-quarters Hyderabad “ Subsidiary Force." Secunderabad, 15th January, 1839.” That document was actually obtained on behalf of the two brothers through their agent, but it is the matter upon which the respondents chiefly rest their case. Their contention is that that document formed the real root of title to the land in question, and that by its terms the grant was one to the Parsi community generally, and not to the two brothers personally. Before examining these two documents and their relation one to the other, it is well to consider the authority from which each document issued, and the relation of those authorities one to the other. The first of the two documents clearly was issued by an officer of the Hyderabad State, and it purports to express a transaction, by which the State had assented to the grant of the land to the two brothers, and directed possession of it to be delivered to them. The second document purports to be issued by the authority of the brigadier commanding the Hyderabad subsidiary force, a force which had its headquarters in the Secunderabad cantonment. The second document purports to be issued by the authority of the brigadier commanding the Hyderabad subsidiary force, a force which had its headquarters in the Secunderabad cantonment. The establishment of the subsidiary force, and its modifications from time to time, may be collected from Aitchisons Treaties, vol. 8, at and after p. 264, and from the various treaties and agreements which follow. It was a force in the employment of the East India Company, and commanded by the companys officers, but maintained, by agreement, in Hyderabad territory for the protection of the Nizam. The research of counsel was unable to discover any treaty prescribing the limits of the powers of the Nizams officers on the one hand, and the military commander on the other, with respect to the management, control, and disposition of the cantonment and the land comprised in it. And it appears clear that no such treaty ever was in existence. When the Nizams Government admitted a British force within its territory, and allotted to it the Secunderabad cantonment as its headquarters, it no doubt by necessary implication conveyed to the military authorities all powers of jurisdiction, control, and management incident to maintaining the efficiency and the discipline of the troops and the peace and good order and convenient use of the cantonment. But it would be going a long way beyond this to hold that the officer commanding the troops could be held empowered to alienate in perpetuity land forming part of the cantonment, and undoubtedly Hyderabad territory, for a purpose wholly unconnected with military requirements. These considerations must be borne in mind in estimating the effect of the two documents which have been cited. There appears to be no real difficulty in reconciling the two documents and appreciating their effect. The first, emanating from the State, purports to deal with and enforce a grant of the land by the State to the two founders by name, and the delivery of possession to them. The second document, emanating from the cantonment authorities, does not deal with title or possession, but gives permission to use the land already conveyed for the particular purpose of a tower of silence and to enclose the land. These are matters obviously within the discretion of the commanding officer, for they might affect the convenient occupation of the cantonment. The second document, emanating from the cantonment authorities, does not deal with title or possession, but gives permission to use the land already conveyed for the particular purpose of a tower of silence and to enclose the land. These are matters obviously within the discretion of the commanding officer, for they might affect the convenient occupation of the cantonment. The effect of the two documents is to shew a good title in the founders, and not in the Parsi community. What happened afterwards only confirms this view. The founders admittedly enclosed the land, and erected a tower of silence upon it. at their own expense. About the same time, or shortly afterwards, they erected a fire temple upon land which they acquired by private purchase, and endowed it. The evidence as to the possession, management, and control of the tower of silence, and of the land on which it stood, shews these to have been in the founders. The only question being who were the original grantees, the events of the early years after the acquisition of the land and the erection of the tower are much more important than those of later years, when the circumstances of the parties had somewhat changed. And in those early years we find, from the correspondence, that the priests referred such difficulties or questions as arose for the orders of the founders and obeyed those orders. The founders certainly down to the year 1863 bore the whole expense of the establishment and all costs of maintenance and repair. During those years the Parsi community were not represented by any committee or other organization. Therefore during those years the founders had no rivals in respect of possession and control; for the suggested possession and authority of the head priest is negatived by his own letters to the founders. After 1863 the Parsi community from time to time subscribed money in aid of additions and improvements, and from 1882 onwards there was a committee representing, in some sense, the community. But what happened in these later years can throw but little light upon the nature of the grant of, or soon after, 1837. Their Lordships are of opinion that the view of the case taken by the judge who tried it was correct. But what happened in these later years can throw but little light upon the nature of the grant of, or soon after, 1837. Their Lordships are of opinion that the view of the case taken by the judge who tried it was correct. They will humbly advise His Majesty that the decree of the Judicial Commissioner should be discharged with costs, and that of the Court of the Superintendent restored. The respondents will pay the costs of this appeal.