1. This second appeal has arisen in the following circumstances.
The plaintiffs-appellants are the owners of a shop in Dal Bazar Ludhiana, along the frontage of which rims a platform about three feet wide. The plaintiffs applied to the defendant, the Municipal Committee of Ludhiana, for permission to rebuild their promises so as also to build on the platform. The Committee refused to sanction the plan on the ground that the plaintiffs could not be allowed to build on the platform which formed a part of the public street.
The plaintiffs therefore instituted the present suit for a permanent injunction restraining the defendant from obstructing them from constructing their shop on the site including the platform, which they claimed belonged to them either by title, or in the alternative by prescription.
The findings of the Courts below were that the plaintiffs had neither proved the ownership of the site under the platform nor had they become owners by prescription and the suit and the first appeal were accordingly dismissed. The plaintiffs have come in second appeal.
2. The finding that the plaintiffs had failedto prove their title to the site under the platformmust be upheld, though it is clear from the evidence that they were asserting their title as longago as 1928 and 1937 in certain mortgage deeds.It is, however, quite clear, and the Courts belowhave concurred in finding, that the platform hasbeen in existence and use for more than thirtyyears.
3. The plaintiffs' case as argued before me was that even if the site on which the platform was built in front of the plaintiffs' shop was originally a part of the public street, the Municipal Committee has lost all right to reclaim it by virtue of Article 146A, Limitation Act, which fixes the period of limitation for a suit by or on behalf of any local authority for possession of any public street or road or any part thereof from which it has been dispossessed, or of which it has discontinued the possession, at thirty years from the date of dispossession or discontinuance.
On the other hand the case of the Committee is that the powers of the Committee under Section 172, Punjab Municipal Act are not in any way affected by the provisions of the Limitation Act and that the Committee under Sub-section (2) of Section 172 is entitled at any time to require the owner or occupier of a building to remove an encroachment, the only proviso being that, reasonable compensation must be offered where the encroachment has been in existence for more than three years. It is, however, to be noted in the present case that no action appears to have been taken by the Committee tinder Section 172 (2) until after February 1950 when the plaintiffs' first appeal was dismissed.
4. There is, however, a conflict of authority on this point and in the only Lahore decision on the point which has been cited before me, --'Municipal Committee, Amritsar v. Mt. Gujri', AIR 1936 Lah 182 (A), Backet J., has taken the view that the powers of the Committee under Section 172 are not in any way affected by Article 146A, Limitation Act,
On the other hand in -- Tayabali Abdullabhai Vohra v. Dohat Municipality', AIR 1920 Bom 9 (B), Macleod C. J., and Heaton J., held that where a verandah has been standing on a part of a public street for over thirty years, the site becomes the property of the person to whom the verandah belongs by the operation of Section 28 and Article 146A, Limitation Act and in such a case the Municipality have no power to issue a notice under Section 122, Bombay District Municipal Act, for removal of the verandah, this being the section corresponding with Section 172, Punjab Municipal Act. This view was followed by Macleod C. J. and Shah J. in -- 'Abaji Ragho Mhalas v. Municipality of Jalgaon', AIR 1923 Bom 111 (C).
5. The case, 'Public Prosecutor v. Varadarajulu Naidu', AIR 1925 Mad 64 (D), which Backet J., followed in preference to the Bombay decision, docs not really appear to support the view on closer examination. This is a decision by a Single Judge, Venkatasubba Rao J., from which it is clear that the terms of the corresponding Section of the Madras District Municipalities Act, Section 182, differed very materially from the terms of Section 172, Punjab Municipal Act. Sub-section (2) of Section 182, Madras Municipalities Act, which takes the place of the proviso to Section 172 (2), Punjab Municipal Act, reads:
'If the owner ....... of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of Limitation to give any person a prescriptive title thereto or........the Municipal-Council shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same,'
In other words, the Madras Municipalities Act specifically provided for the removel of obstructions etc., even after the Municipal Committee might have lost its right to bring a suit for possession of a part of the street which had been encroached on by such obstruction, whereas the Punjab Municipal Act merely provides for payment of compensation for the removal of something which has existed for three years, and seems only to contemplate action by a Committee within a reasonable period.
6. The other Madras case cited on behalf of the Committee, -- 'Basaweswaraswami v. Bellary Municipal Council', AIR 1916 Mad 613 (E), does not help the Committee's case at all, since it was held therein by Sundara Ayyar and Sadasive Ayyar JJ., that although the plaintiff in that case had established a right by prescription against the Municipality, the latter was saved by the Government, which claimed to be the owner of the land, the Secretary of State being impleaded as a defendant, and the case was decided against the plaintiff on the rule of sixty years' limitation against the Government.
7. The question appears to be whether the Municipality governed by the Punjab Act can, after it has stood by for more than thirty years without taking any action to remove a platform built on a part of a public street, and so lost its right to bring an ordinary civil suit for possession of the site, invoke the provisions of Section 172 of the Act and take action under it. It seems to me that if this were the case it would render the provisionsof Article 146A, Limitation Act wholly nugatory, and moreover it would leave it open to Municipalities to take summary action under Section 172 (2) in the very case in which as they concern ancient encroachments, full enquiry by a civil Court into the parties' rights is most essential. I am therefore of the opinion that the view taken by the learned Judges of the Bombay High Court is correct, and in the present case the plaintiffs have become the owners of the site under the platform by prescription.
I would, however, qualify this by saying that this finding does not necessarily mean that the Municipality will automatically have to sanction the plaintiff's building plans, since local considerations may make it undesirable to advance the building line up to the point to which the plaintiffs may wish to extend their building, All that it means is that the Municipality will not be entitled to reject the plaintiff's building plans simply on the ground that the platform forms a part of the public street and belongs to the Municipal Committee,
In the circumstances I accept the appeal to the extent of granting the plaintiffs a declaration that they are owners of the site which lies under the platform and an injunction restraining the Municipal Committee from rejecting their building plans on the ground on which they have previously been rejected, and I order that parties be left to bear their own costs throughout.