MUNICIPAL BOARD MANGLAUR Vs. MAHADEOJI MAHARAJ

JUDGEMENT

(1.) This appeal by special leave raises the question of the right of a Municipality to a vacant piece of land adjacent to a metalled public road.

(2.) The plaintiff is the owner of plot No. 3211 in abadi No. 1416 in khewat No. 216 in the town of Manglaur. Through the said plot runs a public road and two nalis on the north and south of the said road. There is also a water pipe running through the said plot which belongs to the defendant Municipality. There is a vacant site lying in between the nalis, and the road. The Municipality was seeking to erect a structure on the vacant site wherein it intended to instal a statue of Mahatma Gandhi and also to put up two rooms on either side for piyo and library. The plaintiff, who is the owner of plot No. 3211, filed Suit No. 138 of 1948 in the Court of the Munsif, Deoband, for a permanent injunction to restrain the Municipal Board, Managlaur, from putting up the said structures on the suit site and for delivery of possession of the same to the plaintiff. The defendant, inter alia, pleaded that the said site was part of the road which vested in it.

(3.) The Munsif found that the plaintiff has title to the said site and decreed the suit for possession as well as for permanent injunction. On appeal the 2nd Civil Judge, Saharanpur, held that a road includes the "parties" on either side of it, and that the said road along with the parties has been under the management of the Municipal Board for several decades and that the plaintiff has lost title to the same. He further held that though the defendant has no right to restrict the use of the public road by putting up the alleged constructions, the plaintiff has also no right to object the same. On second appeal, the High Court of Allahabad held that the plaintiff has title to plot No. 3211 and the Municipality has not shown how the plaintiff has lost his title to the "kacha" strips of land forming part of the said plot. On that finding, it set aside the decree of the learned 2nd Civil Judge, Saharanpur, and restored that of the Trial Court. Hence the present appeal.