Judgement Appeal from a judgment and decree of the Chief Court (April 12, 1916) reversing a decree of the District Court of Karnal (December 22, 1912). The appellants were the owners of Nawab Ganj, a market in the city of Karnal. The respondents, the Municipal Committee of that city, against the objections of the appellants, constructed a metalled road through the Ganj, alleging that the ground upon which it was laid was a " public street " within the meaning of s. 3, sub-s. 13 (b), of the Punjab Municipal Act (Punj. Act III. of 1911), and that it vested in them under that Act. The facts, and the material portions of the sub-section above mentioned, appear from the judgment of their Lordships. The appellants instituted the present suit in the District Court, praying that the respondents " may be 38 Law. Rep. 47 Ind. App. 25 ( 1919- 1920) Muhammad Rustam v. Municipal C ommittee of Karnal C ity dispossessed of 1600 square yards of the court way upon which they have laid their road, and possession thereof be granted to the appellants." The District Judge held that the appellants had conclusively proved their title to the land, and that it was not established by the evidence that the road was a public street. He accordingly made a decree in the appellants favour. The Chief Court, upon appeal, reversed the decision and dismissed the suit. The learned judges in the course of their judgment said " The principles of the English law regarding the presumed dedication of a road to the public arising from user of such road by the public, being founded on reason and common sense and conducive to public convenience, are applicable to India. Further, the user of a road by the public openly and as of right, is sufficient, apart from the law laid down in the Limitation Act, 1877, s. 26, to raise a presumption of its dedication to their use, though that presumption might be rebutted by evidence of the owners intention that the public should only have a permissive use. . . . Here the predecessors of the plaintiffs built a market of shops with an open space lying between the shops, this open space opening into thoroughfares at various points. . . . Here the predecessors of the plaintiffs built a market of shops with an open space lying between the shops, this open space opening into thoroughfares at various points. They then let the shops to grain dealers, and the presumption certainly is that they intended the members of the public to make use of the space left vacant as a highway. Accordingly we find that the vacant space has ever since been used by all members of the public who come in to buy and sell grain and by carts bringing grain without interruption of any kind whatsoever..... The onus was upon the plaintiffs to show that the dedication was limited to a particular class of persons, but we cannot find anything in the evidence to support the view that the dedication was a limited one and that only those persons who had business in the mandi were allowed into it..... There can, in our opinion, be no doubt that there has been an implied dedication to the public of a roadway in Nawab Ganj..... Several of the exits from the market were, no doubt, provided with gates which used to be shut at nights for protective purposes only, but this, in our opinion, does not show that the plaintiffs predecessors reserved to themselves the right to close the market at their pleasure." 1919. Oct. 30. De Gruyther K.C. and OGorman for the appellants. There were no acts from which it could properly be inferred that there had been a dedication to the public. There were gates to the market which were shut every night. It cannot have been intended to dedicate the whole space between the shops, as the Chief Court held was the case, because the owner erected platforms for grain in part of that space. The evidence showed that the platforms were necessary adjuncts to the shops. The right enjoyed by members of the public was limited to coming to the shops, and was enjoyed in the right of the tenants, and not as members of the general public. [Reference was made to the Punjab Municipal Act (Punj. Act III. of 1911), s. 3, sub-s. 13, and s. 56 ; Punj. Act XX. The right enjoyed by members of the public was limited to coming to the shops, and was enjoyed in the right of the tenants, and not as members of the general public. [Reference was made to the Punjab Municipal Act (Punj. Act III. of 1911), s. 3, sub-s. 13, and s. 56 ; Punj. Act XX. of 1891, s. 3 ; Poole v. Huskinson (( 1843) 11 M. & W. 827.); Anderson v. Juggodumba Dabi (( 1880) 6 Cal L. R. 282.); Municipal Commissioner of Bombay v. Mathurabai (( 1906) I. L. R. 30 B. 558.); Kalidas v. Municipality of Dhandhuka. (( 1882) I. L. R. 6 B. 686.) [SIR LAWRENCE JENKINS referred to the Indian Easements Act (V. of 1882), s. 21, illus. (b), and to Barraclough v. Johnson. (( 1838) 8 A. & E. 99.)] The respondents did not appear. Dec. 4. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a decree of the Chief Court of the Punjab, dated April 12, 1916, reversing a decree of the Court of the District Judge, Karnal, dated December 23, 1912. 38 Law. Rep. 47 Ind. App. 25 ( 1919- 1920) Muhammad Rustam v. Municipal C ommittee of Karnal C ity 140 The respondents in the appeal are the Municipal Committee of Karnal City. The proceedings had reference to an alleged public street in Karnal. The District Judge affirmed, and the decree of the Chief Court disaffirmed, the existence of such a public street. The municipality has made no appearance by counsel at the bar of the Board. Their Lordships are in the position of having to decide what ex facie is an important question of public right in the absence of those who in the ordinary course would defend it. This has added to the difficulties of the case. The municipality has made no appearance by counsel at the bar of the Board. Their Lordships are in the position of having to decide what ex facie is an important question of public right in the absence of those who in the ordinary course would defend it. This has added to the difficulties of the case. By s. 3, sub-s. 13, of the Punjab Municipal Act, 1911, " street " is defined to mean—" Any road, footway, square, court, alley or passage, accessible whether permanently or temporarily, to the public, whether a through fare or not." By the same sub-section " public street " is defined to mean any street—" (I.) over which the public have a right of way; or (II.) heretofore levelled, paved, metalled, channelled, sewered, or repaired out of the municipal or other public funds ; or (III.) which, under the provisions of s. 171, is declared by the municipality to be, or under any other provisions of this Act becomes a public street." On one outstanding fact of the case there would appear to be no difficulty in the judgments of the Courts below— namely, that apart from the question now raised as to the street, the appellants are the absolute owners of Nawab Ganj, a market in the city. Notwithstanding the protests of the appellants, the Municipal Committee recently constructed a metalled road through Nawab Ganj on the plea that the area over which the road was laid was a " public street" under the Municipal Act as above quoted. The market is built in a form of a katra or rectangular close, to which entrance is obtained by four gates. One of these gates was missing at the institution of the suit. The others existed and were shut at night. Round the close was a series of shops which were leased mostly to grain merchants. The enclosure thus formed is a narrow courtyard on the floor of which the tenants pile up their grain in separate heaps, and under the courtyard there are masonry bins for storage. There seems little doubt that the solum of the courtyard was necessary, or at least most valuable, to the tenants of the shops, and these tenants not only paid rent for the shops, but paid dues for the use of the courtyard. The municipality have under their Act the ordinary powers of draining, cleaning and lighting. There seems little doubt that the solum of the courtyard was necessary, or at least most valuable, to the tenants of the shops, and these tenants not only paid rent for the shops, but paid dues for the use of the courtyard. The municipality have under their Act the ordinary powers of draining, cleaning and lighting. Prior to the operations complained of they never exercised any of such powers over the ground in issue. They never drained the courtyard. In the correspondence preceding the action, and in the pleading of the suit, they claimed, however, that the court yard was municipally lighted ; but it turned out, and has been so found by both Courts, that the only lighting was by two lanterns put up by or for a member of the Municipal Committee for his own convenience. As the learned judges of the Chief Court say, " there is no evidence that the mandi was properly lit by the Municipal Committee, and the putting up of these two lanterns does not prove that the place was a public one." The cleaning of the courtyard was never done by the municipality on the contrary, the responsibility for that was laid by them upon the appellants predecessor. This important matter will be presently referred to. A plot of ground of this character owned by one citizen, and by its nature accessory to shop property, and let by him as such to his shop-tenants, and neither drained, lighted nor cleaned by the municipality, would not appear in ordinary circumstances to form a public street. The only foundation for a plea that it did so would be that which has been affirmed by the Court below—namely, that there existed through this Ganj a public right of way, and that this had been acquired by reason of a dedication as a public right of way by the owner. The question in the case is whether the view so affirmed is correct. 38 Law. Rep. 47 Ind. App. 25 ( 1919- 1920) Muhammad Rustam v. Municipal C ommittee of Karnal C ity 141 It is admitted that there has been no dedication expressly or in writing. It appears also to be quite clear that there has been no user of long duration from which an inference of such a dedication to the public would naturally arise. App. 25 ( 1919- 1920) Muhammad Rustam v. Municipal C ommittee of Karnal C ity 141 It is admitted that there has been no dedication expressly or in writing. It appears also to be quite clear that there has been no user of long duration from which an inference of such a dedication to the public would naturally arise. Their Lordships have examined the evidence of dedication relied upon by the Chief Court, and it may be at once stated that they found nothing therein which is adequate to support such a transaction. The Board do not enter upon details, but will cite the principal example of the evidence relied on by the Court below. It is that of Mr. Ram Chander. In the judgment appealed from it is stated " that he frequently passed through that part of the kacha road which previously existed where the pacca road now is. He is a perfectly independent witness, and we have no reason for disbelieving him.” Their Lordships entirely accept that description of the witness. On examination of his evidence, however, it turns out that for a few years back he has gone from his bungalow to his office " generally via Nawab Ganj mandi." And he says " There used to be a kacha road previously at the place where the Municipal Committee has now built a pacca road. I do not know whether it is a public road or not. I often pass by that road." After explaining that his office has been in the neighbourhood only for the last seven or eight years, he adds " There was no fixed way before the construction of the pacca road. I used to pass by the way I could find. There was no drain on any side. Previously corn was generally stored on the road also. Some passage was left. . . . , As there was no particular pacca road and drain, corn was generally stored a little way off the centre..... Most of the banias objected to my passing. When I passed over the corn the shopkeepers objected, saying, ‘Why do you go over the corn ? " Their Lordships cite this as a sample not of evidence of dedication, but of evidence which is wholly insufficient to suggest dedication to the public. Most of the banias objected to my passing. When I passed over the corn the shopkeepers objected, saying, ‘Why do you go over the corn ? " Their Lordships cite this as a sample not of evidence of dedication, but of evidence which is wholly insufficient to suggest dedication to the public. It is in cases such as the present of crucial importance to distinguish between the grant to the public as such of a right of way, and the permission which naturally flows from the use of the ground as a passage for visitors to or traders with the tenants whose shops abut upon it. In the present case it appears to their Lordships extremely doubtful whether the term “dedication" can with propriety be applied to what took place. If the term be employed, it can only be in this sense, that the dedication of the solum of the courtyard was dedication not to the public, but to the uses of the shopkeepers and their customers, the principal use being the storing and display of grain. At night, when business was over, the place was shut up and the gates were closed. It is true that members of the public would get access to a place which was used by customers, and might or might not pass through it. From that, on the point of dedication, nothing can be inferred. A person in dedicating land to public use may, of course, place such limits as he wishes upon the dedication, if he makes those limits clear and definite. That is to say, he may announce to the public that a certain road is dedicated to it as access, say, to a particular building or for a particular purpose. But there can be no such thing in law as a public right of way, constituted by dedication to only a section of the public. That is to say, he may announce to the public that a certain road is dedicated to it as access, say, to a particular building or for a particular purpose. But there can be no such thing in law as a public right of way, constituted by dedication to only a section of the public. As Baron Parke said in Poole v. Huskinson (11 M. & W. 827, 830.) " There may be a dedication to the public for a limited purpose, as for a footway, horse-way, or drift-way ; but there cannot be a dedication to a limited part of the public." A further dictum of that very learned Judge may be also cited " In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate—there must an animus dedicandi, of which the user by the public is evidence, and no more ; and a single act of interruption by the owner is of much more weight, upon a question of intention, than many acts of enjoyment." Upon this point the evidence appears to their Lordships to be substantially all in one direction. According to it, intention to dedicate (apart from the user, of which a sample has been given) there was none. On the contrary, so recently as the year 1902 the Municipal Committee itself treated the ganj not as public, but as private property. On an application of the shopkeepers therein, the municipal 38 Law. Rep. 47 Ind. App. 25 ( 1919- 1920) Muhammad Rustam v. Municipal C ommittee of Karnal C ity 142 authority wrote to the proprietor of the ganj asking that a well should be protected by a wooden structure, while as to the right of way, etc., the municipality put the matter thus " The way in the market is in a very bad condition, and the sweeper deputed by the State does not do any work. A bad smell is spreading in the market. It is requested that the way in the market should be paved with concrete, because the income of the octroi duty of the market is deposited in the treasury of the Nawab. A bad smell is spreading in the market. It is requested that the way in the market should be paved with concrete, because the income of the octroi duty of the market is deposited in the treasury of the Nawab. If you be so generous as to get this amount deposited in the municipal fund, the municipal fund shall be responsible for cleanliness and for getting the road in the market made pucca, otherwise you should make your own arrangements in connection therewith." No date is assigned by the Court below for the alleged dedication ; but it cannot be said that it occurred after the date of this letter ; and the letter itself is a negation of the idea of dedication to the public having been made. Notwithstanding that letter the municipality entered upon the ground and built a road across it in spite of the objection of the Nawab, and without taking any steps under the statute to acquire the ground. In the opinion of their Lordships that was a trespass, and the ground still remains the private property of the appellants. Their Lordships will humbly advise His Majesty that the appeal be allowed, and that the decree of the Chief Court of the Punjab, dated April 12, 1916, be recalled with costs, and the decree of the District Court be restored. The respondents will pay the costs of this appeal.