HALIM MOHAMMED Vs. COMMR OF CUTTACK MUNICIPALITY

JUDGEMENT

(1.) THE litigation culminating in this appeal was started in 1942 for, establishing the right of plaintiff 3 to a bit of land measuring .037 decimals in C. S. Plot No. 1468 situated within the Municipality of Cuttack. Plaintiffs 1 and 2 represented plaintiff 3 which is described as a Tomb of Haji Rustom Sahib, Fir, existing from time immemorial and is a pan of C. S. plot) No. 1490 which adjoins the disputed plot. The plaintiffs' case is that the disputed plot which is recorded in the Current Settlement as part of a 'Rastha' originally had formed part of Provincial Settlement Plot No. 2303, The Cuttack Municipality collected road materials fend put up a road on it in spite of the protests of the plaintiffs. The plaintiffs complain that this action of the Municipality amounted to trespass and claim damages of Rs. 50/ - for the same. The contention of the defendant -Municipality was that there had been a passage on the land used by the inhabitants of the locality and that therefore the plaintiffs had lost their title to the property by reason of long user by the public. The Municipality further claimed to have been in possession of this passage through the inhabitants of the locality who had been using it as a road. The Municipality raised a number of pleas of a technical nature which resulted in the dismissal of the plaintiffs', suit on a preliminary point, and the matter' came up before this Court in - - 'Salim Mahomed v. Cuttack Municipality', Second Appeal No. 135 of 1945 which was disposed of by me in 1948 (A). I held that the Municipality was not entitled to any notice as the suit was conceived in ejectment for alleged trespass. I, therefore, remanded the suit for a fresh trial.

(2.) THE Courts below have again directed the dismissal of the plaintiffs' suit on the ground that the Municipality has acquired title to the land by adverse possession. When the appeal first came up before Mr. Narasimham J. counsel, for the plaintiffs raised a question as to whether there was a valid dedication of a public right of way and counsel for the Municipality represented that he would apply to this Court for permission, with retrospective effect, to validate the dedication of the disputed plot for the use of the public. The appeal was therefore, referred to a Division Bench.

(3.) IT appears to me that neither of the Courts below has been able to disentangle the facts properly and apply the correct principles of law.