PYARELAL Vs. MUNICIPAL COMMITTEE LUDHIANA

JUDGEMENT

(1.) This second appeal has arisen in the following circumstances. The plaintiffs-appellants are the owners of a shop in Dal Bazar Ludhiana, along the frontage of which rims a platform about three feet wide. The plaintiffs applied to the defendant, the Municipal Committee of Ludhiana, for permission to rebuild their promises so as also to build on the platform. The Committee refused to sanction the plan on the ground that the plaintiffs could not be allowed to build on the platform which formed a part of the public street. The plaintiffs therefore instituted the present suit for a permanent injunction restraining the defendant from obstructing them from constructing their shop on the site including the platform, which they claimed belonged to them either by title, or in the alternative by prescription. The findings of the Courts below were that the plaintiffs had neither proved the ownership of the site under the platform nor had they become owners by prescription and the suit and the first appeal were accordingly dismissed. The plaintiffs have come in second appeal.

(2.) The finding that the plaintiffs had failed to prove their title to the site under the platform must be upheld, though it is clear from the evidence that they were asserting their title as long ago as 1928 and 1937 in certain mortgage deeds. It is, however, quite clear, and the Courts below have concurred in finding, that the platform has been in existence and use for more than thirty years.

(3.) The plaintiffs' case as argued before me was that even if the site on which the platform was built in front of the plaintiffs' shop was originally a part of the public street, the Municipal Committee has lost all right to reclaim it by virtue of Article 146A, Limitation Act, which fixes the period of limitation for a suit by or on behalf of any local authority for possession of any public street or road or any part thereof from which it has been dispossessed, or of which it has discontinued the possession, at thirty years from the date of dispossession or discontinuance. On the other hand the case of the Committee is that the powers of the Committee under Section 172, Punjab Municipal Act are not in any way affected by the provisions of the Limitation Act and that the Committee under Sub-section (2) of Section 172 is entitled at any time to require the owner or occupier of a building to remove an encroachment, the only proviso being that, reasonable compensation must be offered where the encroachment has been in existence for more than three years. It is, however, to be noted in the present case that no action appears to have been taken by the Committee tinder Section 172 (2) until after February 1950 when the plaintiffs' first appeal was dismissed.