TAYBALLI ABDULLABHAI VOHRA Vs. DOHAD MUNICIPALITY

JUDGEMENT

(1.) 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 Municipality from removing the plaint verandah. The plaintiff got a deoree 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 M v. Anupram (1913) 15 Bom. L.R. 833 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 Municipal Act to direct him to give up possession or to force him to give up possession, of such part of the public street or road. 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 Municipality is now barred from bringing a suit for recovering possession by virtue of Article 146 A of the Indian Limitation Act and the result must follow under Section 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 Section 122 only refers to encroachments or obstructions in a public street, or obstructions or encroachments of the like nature in any open space riot 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 the 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 Section 122. In my opinion the Municipality by their laches had lost all rights to the land covered by this verandah, and, therefore, they had no longer any power to issue notice under Section 122 for the removal of the verandah. I think, therefore, the appeal succeeds and the decree of the trial Court must be restored with costs of the appeal here and in the lower appellate Court. Heaton, J.

(2.) I concur.