NAGAR PALIKA Vs. SHRINANDLAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit instituted by the respondent for possession of a piece of land, situated at Bina. The plaintiffs case is that the suit land is a part of Survey No. 648/1, belonging to him. It was alleged that in the month of October 1954 the defendant Municipality collected some stones on the land and threatened to take wrongful possession of it. The defendant resisted the suit on the ground that the disputed piece of land had become a public street as it bad been for more than 50 years as a passage without any interruption. Title was also claimed on the ground of adverse possession. Section 48 of the C. P. and Berar Municipalities Act, 1922 (hereinafter called the Act) was further pleaded as a bar to the suit.

(2.) THE trial Judge found that Khasra No. 648/ 1 was the absolute occupancy holding of the plaintiff. This finding has been affirmed by the first appellate Court. It has not been, and could not be, challenged before me. The trial Judge, however, non-suited the plaintiff as he found that the suit land became a public street within the meaning of the Act. He also held that the suit was barred by time under Section 48 of the Act.

(3.) THE first appellate Court reversed both these findings and came to the conclusion that the Municipality failed to prove that it was a public street. The learned Judge held that the user by a section of the public was only permissive and it did not create any title in the public or the Municipality, nor was it sufficient to divest the plaintiff of his title. He held that Section 48 of the Act was not applicable to the suit. In the result, a decree for possession was passed in favour of the plaintiff.