MOHAMMAD RAZI KHAN Vs. MOHAMMAD ASKARI KHAN

JUDGEMENT

(1.) IN the suit oat of which this appeal arises the plaintiffs came into Court alleging themselves to be the owners of a strip of land described as a lane, situated between their house and that of the defendant. They claimed a decree in ejectment, by removal of certain constructions, alleged to have been newly set up by the defendants on the land in suit, together with a perpetual injunction restraining the defendant from taking any action in respect of the said lane, or from offering any obstruction to the lane being used by the plaintiffs as a passage. It is quite clear that the plaintiffs did not sue as members of the public whose right of passage had been interfered with by the blocking of a public thorough fare on the part of the defendant, Had they done so, other questions would have arisen, as, for instance, whether the plaintiffs were in a position to prove any special damage. The whole frame of the suit shows that the plaintiffs came into Court on the basis of proprietary title. The defendant replied that he had undoubtedly built on the land in suit, that he had done so with the permission of the Municipal Board of Allahabad and that the plaintiffs were not the owners of the land in suit. The Municipal Board of Allahabad was never impleaded in either of the Courts beiOw, and, according to the Trial Court; the defendant failed to prove by satisfactory evidence that he had recieved permission from the said Municipal Board for the constructions complained of in the plaint. On the other hand, both the Courts below have found that the plaintiffs are not the owners of the strip of land in suit. The Trial Court says that the plaintiffs produced no evidence of their title in respect of the land in suit. The lower Appellate Court says that the defendant put in evidence certain papers which established the following facts: "That some 18 or 19 years prior to the date of the suit the father of the plaintiffs petitioned the Municipal Board to be allowed to make certain extensions or additions to his house which involved the inclusion within the limit of the said house, of land which had hitherto formed a lane. He was permitted to do so on condition of his surrendering the strip of land, which is now in suit to the Municipal Board, in whose official records this land is now shown as a public lane. The lower Appellate Court speaks of the proceeding as amounting to a dedication (presumably to the use of the public) of this land on the part of the plaintiffs father and goes on to hold that the property thus vested in the Municipal Board." Upon this finding the lower Appellate Court dismissed the appeal of the plaintiffs against the decree of the Trial Court, by which their suit had also been dismissed. The point taken in second appeal is that, on the finding recorded by the lower Appellate Court, the plaintiffs had a right to maintain the suit. I have been referred in argument to certain English authorities which apparently lay down the principle that, when a piece of land has been surrendered to the use of the public as a road, street or thoroughfare, it is the surface of the street and so much of the air above and the soil below as is necessary for the proper maintenance of the land as the public way which vests in the County Council, or the Urban Authority, as the case may be. The original owner of the soil does not cease to be the owner at Common Law and even retains a right capable of assignment or transfer to another person. I can find no case in the official reports in which any such principle as this has been affirmed or applied by the Courts in INdia. Under the United Provinces Municipalities Act the land in suit, as a public thoroughfare within the limits of the Municipality, vests in the Municipal Board of Allahabad. The acts complained of in the plaint are acts of interference with the surface of the soil and with the use of the land as a public lane, so that it would seem prima facie that no one except the Municipal Board of Allahabad has a right to complain of the trespass alleged in the plaint. At any rate, in the absence of clear authority in this country, I am not prepared to hold the contrary, more particularly in a suit in which the Municipal Board concerned was never impleaded as a party. I dismiss this appeal with costs.