Lallubhai Shah, Kt., Acting C.J.
1. In this case the facts are similar to the facts in the appeal which we have just disposed of with this difference that the decision of the Survey Authority was that the land in question formed part of a public street. There is a further point as to whether the suit was barred under Section 50A. The trial Court held that the suit was also barred under Section 50A, Sub-Section (2).
2. The lower appellate Court, however, has decided the case on the general ground that the Government is a necessary party, and that, therefore, the plaint should be returned for presentation to the proper Court, and we have to consider whether the decision of the Survey Authorities that the laud in suit forms part of a public street, which is the question in this suit, involves the result that the Government is a necessary party to the suit. As we have already indicated in the other case, the suit in substance is really a suit as contemplated by Section 50A, Sub-Section (2). The Survey having been introduced under circumstances which would show that it was undertaken as contemplated by Section 50A, the matter was really one between the Municipality and the private parties; and the Survey Authorities decided that the plot in suit formed part of a public street. Here in the plaint the decision of the City Survey Enquiry Officer is sought to be set aside in terms. We do not think, however, that the form of the relief makes any difference in the real nature of the suit. In our opinion, the plaintiff seeks to establish that the land in suit is not part of a public street, and to restrain the Municipality, which is interested in disturbing the enjoyment of the plaintiff as owner of the disputed site. The main ground on which it has been held by the lower Courts that Government is a, necessary party, is that the vesting of all public streets in the Municipality does not mean that Government have no interest in the land. They refer to certain decisions which go to show that in spite of the vesting clause Government have certain interests in the land, which may be a public street. Under Section 50 of the Bombay District Municipal Act, it is clear that all public streets are vested in and belong to the Municipality, and are under their direction, management and control, and are held by them as trustees, subject to the provisions and for the purposes of the Act.
3. Various decisions which have been referred to in the judgment of the trial Court and some of which have been referred to in the judgment of the lower appellate Court, no doubt establish the proposition that in spite of this vesting of public streets, the Government have some interest in the sub soil of and in the column of air above the public streets. [See Gunendra Mohan. Ghosh v. Corporation of Calcutta I.L.R. (1916) 689 S. Sundaram Ayyar v. The Municipal Council of Madura I.L.R. (1901) mad 635 and G.I.P. Railway Company v. Municipal Corporation of the City of Bombay. I.L.R.(1913) 38 Bom. 565: 16 Bom. L.R. 104 But we do not understand how we are concerned in the present case with that question. The plaintiff finds on account of the decision of the City Survey Authority that the land which she claims to be of her ownership, has been declared to form part of a public street. That public street is vested in and belongs to the Municipality, and it is to get rid of the interference with her rights by the Municipality in virtue of the powers which the Municipality could exercise under the Act, on account of this public street being vested in that Municipality, that the plaintiff' has filed this suit. That is the object and the scope of the suit. In that suit the parties interested are the plaintiff on the one hand and the Nadiad City Municipality on the other. We say nothing for the moment as to the other defendants who are joined in the suit, The mere fact that Government would have some interest in all public streets vested in Municipalities is' not any reason for holding that Government is a necessary party in a suit of this nature which really concerns a private party on the one hand and the Municipality on the other. In all those cases where this interest of the Government in the sub-soil of the public streets has been referred to, we do not find any indication that Government has been held to be a necessary party. In fact most of these suits have been suits in which the Government is not joined as a party. Except the case of Sundaram Ayyar v. Municipal Council of Madura we have not been able to find any indication that any attempt was made to join the Government as a party. In this case the learned Judges considered it desirable in second appeal, when certain issues were sent down for findings, that Government might be added as a party; and it does not appear that the addition of Government as a party involved any such result as the addition of Government as a party in the present suit in this Presidency would involve. We have not been able to find any provision in the Madras Civil Courts Act corresponding to Section 32 of the Bombay Civil Courts Act. We are unable to find in this decision any indication that Government was considered a necessary party. On the contrary the Madras High Court distinctly held in Krishnayya v. The Bellary Municipal Council I.L.R. (1891) Mad. 292 that the Secretary of State for India was not a necessary party to such a suit. The learned Government Pleader who argued in favour of the view that Government should be joined, if not as a necessary party, at any rate as a proper party, was unable to point to any decision of this Court in which in a suit between a private party on the one hand and the Municipality on the other with reference to any part of a public street, the Government was held to be either a necessary or a proper party. It seems to us that if Government were held to be a necessary party to suits of this character, it would mean that a number of suits which are as present triable by, and in fact are tried by Subordinate Judges, would have to be tried in this Presidency by the District Courts. That is a result which does not appear to have been contemplated under the District Municipal Act. Section 9 of that Act provides that every Municipality shall be a body corporate, and shall have perpetual succession and a common seal, and may sue and be sued in their corporate name. That is the body, in which the 'public streets' are vested according to law. That is the body which is interested in questioning the right of a private owner who claims a particular part of a public street as his or her private land, and that is the body which can effectively interfere with the rights which would be exercisable by a private owner of the land under the Act. It is that interference which is sought to be removed by the plaintiff in the present case, and it is sufficient for the purposes of the present suit if that interference is guarded against. In our opinion the suit as originally framed was properly constituted, and it makes no difference in the result whether in form there was any prayer to set aside the decision of the City Survey Authorities. Such interest as the Government may have in public streets according to the decisions has never been held to be such interest as would render the joinder of the Secretary of State for India in Council in such suits necessary: we do not think it desirable or right that such suits which really relate to private disputes should be unnecessarily complicated by the joinder of Government as a party. For the purposes of procedure, the vesting clause is sufficient to indicate that the Municipality is the proper party to be sued. We are, therefore, of opinion that the lower Courts have erred in holding that Government is a necessary party. Apart from necessity, the question whether Government is a proper party is not a matter of real difficulty in the case. We have already referred to the considerations which render it desirable that such suits, should be left to be fought out between the parties who are really interested in the particular questions which arise in the suit for decision, and if Government were not a necessary party, as we hold they are not, we do not see any propriety in directing them to be joined as a party in this suit. The result of adopting.such a procedure would be that a suit which could be tried out at Nadiad in the Court of the Second Class Subordinate Judge would have to be reconstituted and tried in the District Court of Ahmedabad. We do not see any need for adopting a course which involves that result. We would, therefore, allow this appeal and make the same order as in the other appeal. The appeal will be allowed, the order of the lower appellate Court set aside, and the appeal remanded to that Court for disposal according to law.
4. The respondent Municipality to pay the costs of this appeal: other respondents to bear their own costs. The other costs will be dealt. with by the District Court when the appeal in that Court is disposed of. The Government Pleader to bear his own costs of this appeal.
5. The remaining portion of the judgment is not material to this report.