Sadasiva Aiyar, J.
S.A. Nos. 1859 to 1875 OF 1918.
1. The plantiffs are the appellants in these 17 second appeals, the common defendant being the Municipal Council of Mayavaram, The plaintiffs are the owners of the shops alongside the Tirumanjana Street, which is vested in the Mayavaram Municipality. There are drains on both sides of the street into which the rain water falling on the street flows and hence the drains are attached to the street in a real sense. Assuming that the sites of the drains belong to the owners of the shops, the question is whether these drains vest in the Municipality under Section 24 of the District Municipalities Act. It is unnecessary for the purpose of these cases to consider whether, if a drain is wholly unconnected with the street, such as being carried on a low side wall above the level of the street (though the wall is just alongside the roadway) and being used by the owner of the wall for carrying off water along his own wall sites, such a drain also will vest in the Municipality as part of the street [see the definition in the Madras City Municipal Act, Section 3(27)(c), where it is made clear that the drain should be attached to the street in order to vest in the Municipality]. In the present cases the drains were dearly useful and intended for carrying off water falling in the street itself. The question we have to decide seems to be concluded by the decisions of this Court, of which it is only necessary to refer to Mothe Achayya Garu v. Municipal Council of Ellore 4 Ind. Cas. 828 : 19 M.L.J. 757 : 7 M.L.T. 66; Basaweswaraswami v. The Bellary Municipal Council 17 Ind. Cas. 158 : 38 M.P 6 : 23 M.L.J. 479 : 12 M.L.T. 405 : (1912) M.W.N. 1080; Chairman, Municipal Council, Srirangam v. Subba Pandithar 20 Ind. Cas. 956 : 38 M.P 456 : 25 M.L.J. 297 : 14 M.L.T. 187 : (1913) M.W.N. 904 and Corporation of Madras v. Mohan Lal Sowcar 80 Ind. Cas. 683. The Mayavaram Municipality was established in 1866. The Thirumanjana Street itself is admitted to be a public street. The drains became, therefore, vested in the Municipality under Section 24 at least in 1884 under the Act of 1884. The plaintiffs can acquire adverse title against the Municipality only if they did any acts, by which the Municipality were prevented from enjoying the drains as drains. The Municipality's possession and enjoyment consisted principally in the water of the street falling into and being carried off by the drains. Unless that was prevented openly as of right, there can be no adverse possession against the Municipality. The learned District Munsif himself says in paragraph 15 of his judgment that 'title by adverse possession can be acquired against the Municipality even in respect of a portion of a street if the mode of occupation by the person in possession has been such as to exclude any enjoyment of it by the Municipality as a street.' Substituting the word 'drain' for 'street', unless the enjoyment of the drain by the Municipality as a drain is prevented there could be no adverse possession. The mere fact that the Municipality did not repair the drains or that the plaintiffs have been repairing or looking after the drains cannot prevent the enjoyment by the Municipality of the drains as drains so long as they are carrying off the street rain water, and hence no adverse possession has been established.
2. The next question is whether, even if the drain space ceased to be vested in the Municipality as a drain, the plaintiffs could obtain an injunction against the removal of the encroachment over the drain space or whether they could only claim compensation. The Municipality's power to remove encroachments over what was once a drain is a question oh which conflicting opinions were expressed in Mothe Achayya Garu v. Municipal Council of Ellore 4 Ind. Cas. 828 : 19 M.L.J. 757 : 7 M.L.T. 66 and Corporation of Madras v. Mohan Lal Sowcar 80 Ind. Cas. 683. That question need not be gone into in these cases, though I may be permitted to say that I adhere to the opinion expressed in Corporation of Madras v. Mohan Lal Sowcar 80 Ind. Cas. 683 with the greatest respect to the contrary opinion expressed in Mothe Achayya Garu v. Municipal Council of Ellore 4 Ind. Cas. 828 : 19 M.L.J. 757 : 7 M.L.T. 66.
3. In the result these second appeals are dismissed with costs. I would allow Rs. 340 as Vakils' fees for all the 17 cases at Rs. 20 a case.
S.A. No. 1876 of 1918.
4. As regards the Second Appeal No. 1876 of 1918 the finding of fast arrived at by the lower Appellate Court that the Koradu space is not proved to have been enjoyed by the plaintiff for the statutory period adversely to the Municipal Council is conclusive and I would dismiss this second appeal also with costs.
5. I agree.