Madhavan Nair, J.
1. The facts are briefly these; the accused encroached on Road No. 18 within the limits of Melattoor V. Sethi Resta in the District Board, Tanjore, and notice was served upon him under Section 159 (1) of the Local Boards Act, to vacate the encroachments. This was disobeyed and he was convicted by the Sub Magistrate of Papanasam in C.C. No. 240 of 1925. He preferred no appeal against this conviction. He did not, however, remove the encroachment; and, as the offence continued, the present case was brought against him under Section 159 (1) and 207 (2) of the Madras Local Boards Act. The Stationary Sub-Magistrate of Papanasam found him guilty and fined him Rs. 61. This conviction was set aside on appeal. This present appeal has been preferred by the Public Prosecutor against the acquittal of the accused by the Joint Magistrate of Kumbakonam.
2. P.W. 2, the Local Fund road maistry, deposed that the encroachment in question lies outside the line of avenue trees on the road and on land which is required for road conservancy purposes and that there is no obstruction to traffic. The conviction was set aside by the learned Joint Magistrate, mainly on the ground that the 'public road', as defined by Section 3 (18) of the Local Boards Act, means the actual road over which the public have a right of way and that none of the clauses of Section 3 (18) is wide enough to include a road poramboke used for conservancy purposes. I think that the conclusion of the learned Magistrate is based upon a misreading of Section 3 (18). Sub Clause (c) of that section says a 'public road' includes land which lies on either side of the roadway up to the boundaries of the adjacent property. The land which is in question in this case clearly comes within this description. It is registered as 'road poramboke' and is vested in the District Board. The public have a right of way over every part of land registered as road poramboke. The fact that the encroachment does not cause any obstruction to the public does not in the slightest degree affect the case. The District Board which owns the public roads has every right to ask those who encroach upon them to remove the obstruction.
3. It was argued on behalf of the accused that he had perfected his title to the laud in question by adverse possession for over thirty years. This ground was raised in the grounds of appeal to the Lower Appellate Court, but in the judgment we find no discussion of the point. The judgment is confined exclusively to a consideration of the question whether the encroachment was on the public road as defined in Section 3 (18). It appears to us that this point has not been pressed before the learned Magistrate; I agree with the Sub-Magistrate that the evidence does not conclusively show that the case of adverse possession has been made out by the accused.
4. In these circumstances 1 set aside the acquittal and convict the accused of the offence under Section 159 (1) and Section 207(2) of the Madras Local Boards Act and sentence him to pay a fine of Rs. 61, or, in default, to suffer simple imprisonment for two months.
5. I agree. In regard to the definition of a 'public road' in the Madras Local Boards Act, it appears to me that prima facie the public have a right of way over every part of road poramboke. Therefore, if we find a piece of road poramboke which lies between the roadway and the boundary of adjacent property, that will be a public road as defined in the Act, unless it is shown that in some way the public have lost their right of way over it.