JUDGMENT
Sadasiva Aiyar, J.
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.
4. In the result though not without hesitation, I concur in the dismissal of this appeal with costs.
Tyabji, J.
5. The plaintiff sued for an injunction against the Municipal Council of Srirangam restraining it from entering the land referred to in the plaint. The District Judge agreeing with the District Munsif has found that the plaintiff has been in possession of the land and of the erections over it for over the statutory period and has acquired a title to the land by prescription. This in our opinion is a question of fact and we cannot interfere with the finding in Second appeal. It seems to me to be clear that if the land belongs to the plaintiff his structure over his own land cannot be demolished by the Municipality.
6. It is argued before us however, that the decision in Basweswara Swami v. Bellary Municipal Council (1912) 23 M.L.J. 479 entitles the Municipality under Section 168 of the District Municipalities Act to demolish the erections on the land in question. I cannot agree that the effect of the decision referred is that any erection can be considered to be an encroachment or obstruction under Section 168 of the District Municipalities Act after the land over which the erection is made has passed into the ownership of the person who has made it, and for the purposes of the question before us I see no distinction between the transfer of the ownership of the land by adverse possession and transfer in any other manner. In the case cited above the obstruction consisted of a pial (or verandah) erected over drains belonging to the Municipality and thus there was either no passing out of the ownership of the land over which the pial was erected from the Municipality to the person who had erected it, or the pial was an obstruction to the drain belonging to the Municipality in either of which cases the facts would be materially distinguishable from those with which we have to deal.
7. I therefore think that this appeal should be dismissed with costs.
