CHAIRMAN, MUNICIPAL COUNCIL Vs. SUBBA PANDITHAR

JUDGEMENT

(1.) The Lower Courts in considering the question of possession have proceeded on the footing that the plaintiff should have had adverse possession for 30 years before suit before he could acquire title to the street space encroached upon against the Municipality of Srirangam. It is clear that if he had had possession for 19 years before the Limitation Amendment Act of 1900 came into force, that possession was sufficient to have given him a clear title as against the Municipality.

(2.) On the question whether under Section 168 of the District Municipalities Act the Municipal Council was entitled to remove the projections and encroachments, even though the plaintiff had acquired full title to them and to the site on which the encroachment show, I have had serious doubts. In the case of Basawaswara Swami v. Bellary Municipal Council (1912) 23 M.L.J. 479 the Government was a party to the suit and their title was not lost. Further. the adverse title established there did not relate to the whole cubic space of the street belonging to the Municipality but only to the upper space portion situated over a drain space which still continued vested in the Municipality. An erection which has become lawful by adverse possession might still be an obstruction or encroachment so far as the drain space beneath it (such drain space coming under the definition of " street") is concerned. But where the whole entire space forming a portion of the street vested in the Municipality has been effectively occupied and acquired by adverse possession against the Municipality, the whole of such space ceases to be a street, and the original encroachment or obstruction can no longer, it seems to me, be called an encroachment or obstruction in the street, because the street space encroached upon has wholly ceased to be a street.

(3.) I would distinguish the present case from Basweswara Swami v. Bellary Municipal Council (1912) 23 M.L.J. 479 on this ground, though I must admit that the observations in the judgments delivered in that case (especially that of my learned brother Sundara Aiyar J.) are put on the broad ground that the acquisition of title by adverse possession and the loss of title in the Municipality has nothing to do with the Municipality s power under Section 168 to remove encroachments because Clause (3) of Section 168 provides for compensation for the removal of lawful encroachments by the Municipality. I might, however, be permitted to remark that Clause (3) relates only to encroachments lawfully made (evidently licence) under Section 67 and not to encroachments which were unlawful when made but the title to the space covered by which encroachments have become indefeasible by adverse possession.