BASAVESWARASWAMI, BY DHARMAKARTHA ASPALLI PANCHAPPA; HAVALIGIHUSSAIN SAHEB Vs. BELLARY MUNICIPAL COUNCIL; THE SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF BELLARY

JUDGEMENT

(1.) This is a suit by the owner of a house in Bellary for a declaration of his right, to a pial and for restraining the Municipal Council of the town from removing it. At the instance of the Municipal Council, the Secretary of State for India in Council was made a party to the suit. The plaintiff s case was that the pial belonged to him and that the Municipal Council had, therefore, no right to remove it as it threatened to do. The Council denied the plaintiff s right to the site of the pial and the Government set up its ownership to the site. The issues framed in suit raised the questions, how long the suit pial was in existence, whether the plaintiff acquired a prescriptive title to the site of the pial, If he was not the original owner, and whether the Municipality was entitled to demolish it.

(2.) Both Courts have found that the street was dedicated to the public by the Government. The houses were built on sites originally belonging to Government, which it gave to the people when they were compelled remove form houses occupied by them the fort of Bellary. The lower Court also found that the land over which the pial stands was not part of the plaintiff s house. These findings are binding on us in second appeal. It has also been found by the lower Courts that the pial was constructed about the year 1883 or 1884, that prior to its construction, there were loose slabs of stone which were used for the purpose of vending various articles but that the Municipal servants used to remove these slabs when necessary for the purpose of repairing the drain.

(3.) It was argued before us that the plaintiff s possession must be taken to date from the time when the loose slabs were in existence; but, having regard to the fact that the slabs used to be removed when the Municipality wished to do so, it is not possible to regard the plaintiff s possession as having been effective until the present pial was constructed in 1883. If the Municipality had the right to the space above the drain up to the portion occupied by the plaintiff, its right to possession was not disturbed in an effective manner by the use of the loose slabs of stone. From 1883, however, the plaintiff must be taken to have obtained an effective and exclusive possession of the pial. The learned Pleader for the Municipal Council argued that this possession was not adverse to the Municipality, inasmuch as, for the purposes of its functions, it was not necessary for the Municipality to use the site of the pial. This contention I am entirely unable to accept. According to the decision in Sundaram Iyer v. The Municipal Corporation of Madura and the Secretary of State for India in Council 25 M. 635; 12 M.L.J. 37, the street, which on the findings must be taken to include the drain, was vested in the Municipality for the purposes for which the Council was constituted. Their right was not a mere right of easement, according to the view adopted by the learned Judges who decided that case, but was a special kind of property in the site previously unknown to the law but created by statute. This was also the view adopted by James, L.J., in Rolls v. Vestry of St. George the Martyr Southwark (1880)14 Ch. D. 785 at pp. 795, 796; 43 L.T. 140; 28 W.R. 867; 44 J.P. 680; 49 L.J. Ch. 691. See also the judgment of Lord Morris in Municipal Council of Sydney v. Young (1898) App. Cas. 457 : 67 L.J.P.C. 40 : 71 L.T. 365 : 46 W.R. 561. Sundaram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 25 M. 635; 12 M.L.J. 37, regards a Municipal Council as having a right both to the surface of the street and to a portion of the soil beneath and the space above so far as would be necessary for the discharge of its functions as the authority bound to maintain, protect and repair the road. If, then, the Municipality was the owner of the site occupied by the pial in 1883, it must be taken to have been dispossessed by the plaintiff when he constructed the pial. The rights to possession would be extinguished when, according to the Limitation. Act in force, a suit for possession instituted by it became barred. As the law stood before 1900, the time within which the Municipality could institute such a suit was twelve years. In 1895 or 1896, therefore, the Municipal Council s right to the site of the pial became extinguished and the rights of the public incidental to their right of way also became extinguished according to the view taken in Sundaram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 25 M. 635 : 12 M.L.J. 37. Although it was not open to the Municipality to give up the rights of the public or to affect the right of way possessed by the public by any act of their own, that would not affect the capacity of a person in hostile possession to acquire rights which would affect the public. See the judgment of Byrne, J. in Midland Railway Co. v. Wright (1901) 1 Ch. 738 : 70 L.J. Ch. 411: 49 W.R. 474 : 84 L.T. 225 : 17 T.L.R. 261. A similar principle applies in other cases. Thus, a trustee cannot alienate trust property except in certain circumstances, but a person can acquire a right by limitation to trust properties by adverse possession. Similarly, the trustee s office itself is extra commercium but the right to it may be acquired by limitation. Mr. Govindaraghava Iyer drew attention to an observation of Benson, J., in Sundaram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 25 M. 635; 12 M.L.J. 37 in support of his argument that the possession of the plaintiff was not adverse to the Municipality so long as the Council did not require the site for the discharge of its function. But the question whether possession was adverse or not, does not depend on the needs or requirements of the owner, but on the character of the occupation of the person in possession. It may, no doubt, be held that fugitive or unimportant acts of possession would not be sufficiently effective to make the possession adverse and that the license of the owner may be implied in such cases. But I cannot conceive what could be more effective occupation than building up the pial and occupying it exclusively. It must be taken to be now well established that, although the soil may be in one person, another person may be the owner of a building above the soil and that the right to occupy a portion of space above the soil may be acquired by limitation. See Light wood s Time Limit on Actions, pages 17 and 18 and Laybourn v. Gridley (1892) 2 Ch. 53 : 61 L.J. Ch. 352 : 40 W.R. 474. In Midland Railway Co. v. Wright (1901) 1 Ch. 738 : 70 L.J. Ch. 411 : 49 W.R. 474 : 84 L.T. 225 : 17 T.L.R. 261 it was held that the right to surface level over a tunnel could be acquired by prescription. In Bevan v. The London Portland Cement Company Limited (1893) 67 L.T. 615 : 3 Rule 47 it was held that the right to a tunnel itself could be acquired by adverse possession. A similar view was held in Mohan Lal Jechand v. Amrat Lal Bechardas 3 B. 174 by a Bench of which West, J. was a member. It must, therefore, be held that, as against the Municipal Council, the plaintiff acquired a right to the pial by limitation on the expiration of 12 years from 1883 or 1884. I must observe that the view, taken in Sundaram Iyer v. The Municipal Council of Madura and The Secretary of State for India in Council 25 M. 635; 12 M.L.J. 37 that the right of a Municipal Council by virtue of streets vesting in it includes the right of possession, was not questioned by any of the parties during the arguments. If the Municipal Council had no right to the possession of the space above the drain but only a right of user for the discharge of its functions with respect to the drain, the plaintiff s position would even then not be worse, for, as the person in possession of the pial, he would have a right to it as against all but the true owner, namely, Government in this case; and the Municipal Council would have no right to interfere with his possession or to demolish the pial. So far, then, as the right of ownership is concerned, the plaintiff s right must, be taken to be established as against the Municipality. As against Government, however, the plaintiff has not succeeded in establishing a title. The presumption of title arising from possession is of no use to the plaintiff in this case, because it has been found that the ownership of the site of the drain belonged to Government before the plaintiff took possession of the site of the pial. Until 1883, either the Government or the Municipality must be taken to have been in legal possession on the site; and the plaintiff has not been in possession for a period of 60 years so as to acquire a title by limitation as against Government.