ABAJI RAGHO MHALAS Vs. MUNICIPALITY OF JALGAON

JUDGEMENT

(1.) The plaintiff sued for an injunction against the Municipality of Jalgaon not to remove the eastern two rows of steps leading to his house. The suit was dismissed in the trial Court, and an appeal against that decision was dismissed on the 30 July 1920. Since the appeal was dismissed the decision of this Court in Tayaballi V/s. Dohad Municipality (1920) 22 Bom L.R. 951. was reported. This case is on all fours with that case, and, therefore, we must follow that decision unless we refer the matter to a Full Bench.

(2.) It was argued that that decision was in conflict with a prior decision of this Court is Dakcore Town Municipality V/s. Anupram. (1913) 15 Bom L.R. 883. But Mr. Justice Heaton was a party to both the decisions and when the latter case was decided the prior case was before us, and I do not think that Mr. Justice Heaton could have concurred in my decision in the Dohad Municipality case, unless he was satisfied that the two cases could be differentiated. However, there is no doubt that the facts of this case are very similar to the facts in the latter case, and we are bound by that decision. The basis of that decision is that after thirty years adverse possession, an owner of a house who has encroached on the public street obtains a good title, therefore Section 122 which deals with encroachments on streets no longer applies.

(3.) It is argued to the contrary on the merits of the case, that Section 122 of the Bombay District Municipal Act gives the Municipality power to remove an encroachment which has been set up in any place after it has become a Municipal district, and to fine a person who has so encroached, and also to remove the encroachment, and that that power continues, however long the party who has encroached has been in possession of the site of the encroachment. That of course is a perfectly legitimate argument. It does not follow that the opposite argument is wrong, that as the Municipality is barred from tiling a suit for the possession of the site encroached upon after thirty years, the site after that period no longer forms part of the street, but belongs to the party who has been in adverse possession. The appeal, therefore, must hi allowed and the plaintiff must be granted the injunction which he has asked for and the refund of Rs. 2 paid under protest with costs throughout. Shah, J.