Tayabali Abdullabhai Vohra v. Dohat Municipality

Macleod, C.J:— This was a suit by the plaintiff for a declaration that the property mentioned in the plaint belonged to him, and for a permanent injunction restraining the defendant Muncipality from removing the plaint verandah. The plaintiffs got a decree in the trial Court which was reversed on appeal, the learned appellate Judge being of opinion that the case was governed by the decision in Dakore Town Muncipality v. Anupram (1). We do not think that the decision of that case applies to the facts of this case, nor do we think that however long a private person may have been in possession of a portion of a public street or road, the Municipality have still powers under Section 122 of the Bombay District Muncipal Act, to dirct him to give up possession, or to force him to give up possession, of such part of the public street or road.

2. In this case it has been proved as a fact, and it has been accepted as a fact in both Courts, that the verandah has been on the present site for more than thirty years. Assuming that it was originally built on a part of a public street or road the Muncipality is now barred from bringing a suit for recovering possession by virtue of Article 146-A, Lim. Act, and the result must follow under S. 28 that the plaintiff has acquired a title to the land on which the verandah is built by over thirty years' possession. It is therefore no longer a part of the public street or road, and the Municipality have no jurisdiction over it because S. 122 only refers to encroachments or obstructions in a public street, or obstructions or encroachments of the like nature in any open space not being private property. Once I find that this verandah is built on land which has ceased to be part of a public street or road, and has become private property, it follows that the Municipality cannot issue a notice against the owner to remove it. The notice in this case, which is dated 22nd December 1915, directs the appellant to remove the encroachment, but it does not mention the section under which the notice is given. I can only assume that it was issued under S. 122. In my opinion the Municipality by their laches had lost all right to the land covered by this verandah and therefore they had no longer any power to issue notice under S. 122 for the removal of the verandah. I think therefore the appeal succeeds and the decree of the trial Court must be restored with coats of the appeal here and in the lower appellate Court.

Heaton, J.:— I concur.

G.P/R.K

3. Appeal allowed.