JUDGMENT Mukerji, J.
1. This appeal arises cub of a suit for a declaration of title and for damages instituted by the respondents against the Municipal Board of Etawah under the following circumstances. There is a piece of land which has been painted red on the plan prepared in the Court below by the Court amin. The plaintiffs' case was that plaintiff 1 was the owner of the land and she had on that plot four small shops fetching a rent of about Rs. 80 a month. Plaintiff 2 is her lessee. The shops were burnt down in June 1926 and the land was laid vacant. The plaintiffs made an application to the Municipal Board for permission to build again on the land, but this permission was refused on 27th August 1926 on the ground that the Municipal Board was the owner of the land and not the plaintiffs. The plaintiffs accordingly asked for a declaration that they were the owners of the land in suit. They also asked, as already stated, damages on the ground that having been not allowed to rebuild the shops they had been losing Rs. 80 a month as rent. The Municipal Board contested the plaintiffs' right to the land in suit, and they contended that it was a part of land belonging to the Municipal Board. Indeed, it stated that the land in suit was a part of the main street, the land in question being only a part of the pavement which ran alongside of the main street, and was meant for the pedestrians to walk upon. The learned Subordinate Judge, who heard the case at length, came to the conclusion that the plaintiffs had established their right to the land. He found that when the shops existed on the spot they were four in number and they fetched a rent of Rs. 73 per month. He also found that since the shops had been burnt down, the rent had gone up and it was but a fair estimate of the rent of the shops that could be built on the land to say that they could fetch Rs. 80 per month. The whole suit was accordingly decreed.
2. Before us it has been contended that the respondents have failed to prove their title. We have been taken through the entire evidence on the record which is largo. We shall notice only such of the documents as we consider to be very pertinent to the case.
3. To start with, the plaintiff produced a sale deed in their favour dated 21st December 1871. By this document one Durga Prasad, by whose name the local bazar goes, professed to sell two shops to a predecessor-in-title of plaintiff 1. According to the boundaries of these shops, they extended right to the main street. If there was any ambiguity in the sale deed, they are clearly removed by the subsequent conduct on the part of the owner and his tenants. We find that as early as in 1880 one Jagannath, being a tenant of the land in suit, applied to the Municipal Board for permission to build up a tiled shed : see p. 55 of the record. Shortly after this he again applied for permission to build what has been described as a " khirki." It appears that Jagannath wanted to construct a cellar beneath the land in suit, because he wanted some place to keep his cloth. This permission was given. We find that as a matter of fact there is a cellar beneath the land in suit, and the door which leads to the cellar is shown in the map prepared by the amin. On behalf of the appellant it was contended that this cellar must have been constructed without permission from the Municipal Board, but we do not consider that the suggestion is correct. The Municipal Board gave its sanction by the order printed at p. 59. Thus we find that since 1880 at any rate plaintiff 1 and her predecessors and her tenants have been occupying the land in suit with the permission of the Municipal Board and in open defiance of anybody else's title and right. A large number of rent-notes have been produced to prove that the shops on the site were occupied by tenants of plaintiff 1 from time to time.
4. The Municipal Board claims to be the owner of the land which has been described as " patri," or pavement running on either side of the main street. The learned Subordinate Judge inspected the locality, and he found that the whole of the " patri " land, in any case, the major portion of the patri land, had been fully occupied by shops. He found on the evidence that the patri land was two feet higher than the main street. This fact would show that the land described as patri was never meant to be a pavement for the pedestrians to walk upon.
5. As against all this evidence the Municipal Board have been able to produce, but a few documents, and they are not of much use. At p. 41 is a copy of the proceedings of the Municipal Board. It clearly goes to show that the inner portion of what has been described as Humeganj was acquired by the Municipal Board and was sold to one Durga Prasad, the vendor of the plaintiffs under the sale deed of 1871. It was argued that Durga Prasad owned only the inner side of the bazar and therefore he had no title which he might confer on the predecessor-in-title of plaintiff 1. But this argument is entirely fallacious. The document does not show that Durga, Prasad was not the owner of the outer portion of the bazar when he acquired from the Municipal Board the inner portion of it.
6. The document at p. 45 goes only to support the transaction recorded at p. 41. At p. 47 is a statement of a certain gentleman, but the relevancy of this statement as evidence is entirely doubtful. On the other hand at p. 129 is a copy of the proceedings of the Public Works Committee of the Municipal Board. It is very interesting and throws a flood of light on the whole affair. It appears that the committee found that the " patri " land or lands lying by the roadside were being claimed and transferred by the shopkeepers as their private property. The Municipal Board, it was stated, never acquiesced in the claims, but it was planting trees and selling them when they dried up in the exercise of the right of possession. It was resolved that in future the Municipal Board would refuse permission to build to whosoever might apply for the purpose if the application related to the patri land. This resolution itself shows that the Municipal Board was not certain about its own title.
7. The learned Subordinate Judge has pointed out that the Municipal Board produced no document in its possession which would go to show that it was the owner of the land in suit. The list of properties owned by the Municipal Board was not produced and the overseer who spoke about it stated that it contained only the area of the land which was owned and he was not in a position to say, with the aid of this document, whether the land in question belonged to the Municipal Board. The learned Subordinate Judge found that the Municipal servants admitted before him that this land in suit had no tree planted on it by the Municipal Board and the Municipal Board never exercised any right of possession over it such as sweeping the place, etc.
8. Having considered all the evidence on the record we are of opinion that the land in suit is the private property of plaintiff 1 and in any case plaintiff 1 by completing adverse possession extending over 30 years has completed that title in herself as against the Municipal Board. The plea of adverse possession need not be specifically pleaded as it is included in the plea of title : see Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Maha Patrulu Garu [1901] 24 Mad. 387.
9. The only other point for consideration is whether the plaintiffs are entitled to the damages decreed in their favour. It was argued before us that the Municipal Board was entitled to refuse permission on the ground that the building abutted on the land and erection of any construction on the land would be undesirable as an obstruction to the traffic and for other similar reasons. It is however not the case that the Municipal Board considered the question of building on the land from this point of view. They only considered the question whether they should allow the plaintiffs to build, it being assumed that the property was not of the plaintiffs but of the Municipal Board. This is conclusively shown by the order passed by the Municipal Board and printed at p. 151 of the record.
10. It was argued before us that no suit is maintainable against the Municipal Board for anything done in pursuance of the duties cast upon it under Section 180, Municipalities Act, and that the only remedy of the aggrieved party is by way of an appeal to the District Magistrate or to the Commissioner under Section 318, Municipalities Act of 1916. We have already answered this argument when we stated that the Municipal Board never professed to act under Section 180, Municipalities Act of 1916. They did not decide whether assuming that the land was the respondents' property it would be desirable from the point of view of the public as represented by the Municipal Board that plaintiff 1, the original owner of the land, should be prohibited from building on it. No question of title can be decided by the Municipal Board specially where it itself is a party and it could never have been contemplated that the question of title should be decided under Section 318 of the Act by the District Magistrate or by the Commissioner.
11. As regards compensation we have found that the amount claimed is a fair and proper one. The act of the appellant has deprived respondent 1 from gaining the benefit she used to get from her property and for no fault of her own. In a suit for damages based on an act of tort the entire amount of damages have to be recovered in one suit and several suits are to be discouraged. On this principle the plaintiffs are entitled to the entire amount decreed to them by the Court below,
12. In the result, the appeal fails and is hereby dismissed with costs.