Sundara Aiyar, J.
1. This is a suit by the owner of a house in Bellary for a declaration of his right, to a pial and for restraining the Municipal Council of the town from removing it. At the instance of the Municipal Council, the Secretary of State for India in Council was made a party to the suit. The plaintiff's case was that the pial belonged to him and that the Municipal Council had, therefore, no right to remove it as it threatened to do. The Council denied the plaintiff's right to the site of the pial and the Government set up its ownership to the site. The issues framed in suit raised the questions, how long the suit pial was in existence, whether the plaintiff acquired a prescriptive title to the site of the pial, If he was not the original owner, and whether the Municipality was entitled to demolish it.
2. Both Courts have found that the street was dedicated to the public by the Government. The houses were built on sites originally belonging to Government, which it gave to the people when they were compelled remove form houses occupied by them the fort of Bellary. The lower Court also found that the land over which the pial stands was not part of the plaintiff's house. These findings are binding on us in second appeal. It has also been found by the lower Courts that the pial was constructed about the year 1883 or 1884, that prior to its construction, there were loose slabs of stone which were used for the purpose of vending various articles but that the Municipal servants used to remove these slabs when necessary for the purpose of repairing the drain.
3. It was argued before us that the plaintiff's possession must be taken to date from the time when the loose slabs were in existence; but, having regard to the fact that the slabs used to be removed when the Municipality wished to do so, it is not possible to regard the plaintiff's possession as having been effective until the present pial was constructed in 1883. If the Municipality had the right to the space above the drain up to the portion occupied by the plaintiff, its right to possession was not disturbed in an effective manner by the use of the loose slabs of stone. From 1883, however, the plaintiff must be taken to have obtained an effective and exclusive possession of the pial. The learned Pleader for the Municipal Council argued that this possession was not adverse to the Municipality, inasmuch as, for the purposes of its functions, it was not necessary for the Municipality to use the site of the pial. This contention I am entirely unable to accept. According to the decision in Sundaram Iyer v. The Municipal Corporation of Madura and the Secretary of State for India in Council 12 M.L.J. 37, the street, which on the findings must be taken to include the drain, was vested in the Municipality for the purposes for which the Council was constituted. Their right was not a mere right of easement, according to the view adopted by the learned Judges who decided that case, but was a special kind of property in the site previously unknown to the law but created by statute. This was also the view adopted by James, L.J., in Rolls v. Vestry of St. George the Martyr Southwark (1880) 14 Ch. D. 785. See also the judgment of Lord Morris in Municipal Council of Sydney v. Young (1898) App. Cas. 457. Sundaram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 12 M.L.J. 37, regards a Municipal Council as having a right both to the surface of the street and to a portion of the soil beneath and the space above so far as would be necessary for the discharge of its functions as the authority bound to maintain, protect and repair the road. If, then, the Municipality was the owner of the site occupied by the pial in 1883, it must be taken to have been dispossessed by the plaintiff when he constructed the pial. The rights to possession would be extinguished when, according to the Limitation. Act in force, a suit for possession instituted by it became barred. As the law stood before 1900, the time within which the Municipality could institute such a suit was twelve years. In 1895 or 1896, therefore, the Municipal Council's right to the site of the pial became extinguished and the rights of the public incidental to their right of way also became extinguished according to the view taken in Sundaram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 12 M.L.J. 37. Although it was not open to the Municipality to give up the rights of the public or to affect the right of way possessed by the public by any act of their own, that would not affect the capacity of a person in hostile possession to acquire rights which would affect the public. See the judgment of Byrne, J. in Midland Railway Co. v. Wright (1901) 1 Ch. 738 : 70 L.J. Ch. 411. A similar principle applies in other cases. Thus, a trustee cannot alienate trust property except in certain circumstances, but a person can acquire a right by limitation to trust properties by adverse possession. Similarly, the trustee's office itself is extra commercium but the right to it may be acquired by limitation. Mr. Govindaraghava Iyer drew attention to an observation of Benson, J., in Sundaram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 25 M.k 635 in support of his argument that the possession of the plaintiff was not adverse to the Municipality so long as the Council did not require the site for the discharge of its function. But the question whether possession was adverse or not, does not depend on the needs or requirements of the owner, but on the character of the occupation of the person in possession. It may, no doubt, be held that fugitive or unimportant acts of possession would not be sufficiently effective to make the possession adverse and that the license of the owner may be implied in such cases. But I cannot conceive what could be more effective occupation than building up the pial and occupying it exclusively. It must be taken to be now well established that, although the soil may be in one person, another person may be the owner of a building above the soil and that the right to occupy a portion of space above the soil may be acquired by limitation. See Light wood's Time Limit on Actions, pages 17 and 18 and Laybourn v. Gridley (1892) 2 Ch. 53 : 61 L.J. Ch. 352. In Midland Railway Co. v. Wright (1901) 1 Ch. 738 it was held that the right to surface level over a tunnel could be acquired by prescription. In Bevan v. The London Portland Cement Company Limited (1893) 67 L.T. 615 it was held that the right to a tunnel itself could be acquired by adverse possession. A similar view was held in Mohan Lal Jechand v. Amrat Lal Bechardas 3 B.k 174 by a Bench of which West, J. was a member. It must, therefore, be held that, as against the Municipal Council, the plaintiff acquired a right to the pial by limitation on the expiration of 12 years from 1883 or 1884. I must observe that the view, taken in Sundaram Iyer v. The Municipal Council of Madura and The Secretary of State for India in Council 12 M.L.J. 37 that the right of a Municipal Council by virtue of streets vesting in it includes the right of possession, was not questioned by any of the parties during the arguments. If the Municipal Council had no right to the possession of the space above the drain but only a right of user for the discharge of its functions with respect to the drain, the plaintiff's position would even then not be worse, for, as the person in possession of the pial, he would have a right to it as against all but the true owner, namely, Government in this case; and the Municipal Council would have no right to interfere with his possession or to demolish the pial. So far, then, as the right of ownership is concerned, the plaintiff's right must, be taken to be established as against the Municipality. As against Government, however, the plaintiff has not succeeded in establishing a title. The presumption of title arising from possession is of no use to the plaintiff in this case, because it has been found that the ownership of the site of the drain belonged to Government before the plaintiff took possession of the site of the pial. Until 1883, either the Government or the Municipality must be taken to have been in legal possession on the site; and the plaintiff has not been in possession for a period of 60 years so as to acquire a title by limitation as against Government.
4. The next question is, whether the plaintiff is entitled to an injunction restraining the Municipal Council from removing the pial. That question depends on the construction of Section 168 of the District Municipalities Act. The right of the Municipal Council to the drain has not been affected by the acquisition of title to the pial by the plaintiff. According to Section 165, the Municipality is entitled to 'cause any projection, encroachment or obstruction made against or in front of any land in any public street to be removed or altered as they think fit.' Now, the pial must be regarded as an obstruction made on land in the public street. As it appears that the pial is only three feet above the drain, it must be regarded as an obstruction of the drain in the street. The right of the Municipal Council to remove an obstruction does not depend on its title or right to the possession of it, as is clear from Clause 3 of Section 168, which entitles a person lawfully erecting an obstruction to reasonable compensation for the removal. The right to remove is given in the interests of the public to prevent encroachment on the public roads and is not dependent on the Municipal Council's ownership. The injunction must, therefore, be refused. No claim was made in the plaint for compensation, nor does it appear whether the pial itself had been removed at the date of the suit; it does not even appear whether it has been removed now. It was argued by Mr. Seshagiri Aiyar, who appeared for Government, that the Municipal Council had received the sanction of Government for the removal of the pial and had, therefore, the right to remove it, but the Municipality did not set up the plea that its act was justified by the orders of Government. Nor does it appear in what capacity, if at all, Government sanctioned the removal. I consider it somewhat extraordinary that, after allowing the plaintiff to construct and occupy his pial for nearly a quarter of a century, the Municipality should claim to remove it without any compensation, and I take leave to doubt whether the Government would sympathise with and authorise such conduct on the part of the Council. As the prayer for a declaration of title was only incidental to the substantial relief asked for, namely, injunction, no declaration can be granted in this suit as against the Municipality. The second appeal mush, therefore, be dismissed with 2nd respondent's costs.
5. Second Appeal No. 1334 follows.
Sadasiva Aiyar, J.
6. The plaintiff is the appellant before us. The finding of the lower Court is that he had been in possession of the pial in front of his house for only 25 or 30 years before the suit. This pial is built so as to cover the Municipal drain and is 3 feet high from the road level, the drain being 1 1/2 feet in width. The lower Appellate Court found that the plaintiff has not acquired a prescriptive title to the land over which the pial in question projects either against the Bellary Municipal Council in whom the street and the drain sites were vested or against the Government and hence dismissed plaintiff's suit which was brought for an injunction against the Bellary Municipal Council to restrain them from removing the pial as an encroachment on the drain and road.
7. I shall first shortly consider the question whether the drain and the road over which the pial is built belong to the Municipal Council or the Secretary of State or both. In The Municipal Commissioners for the City of Madras v. Sarangapani Mudeliar 19 M.K 154 Collins, C J. and Parker, J. state as follows: The English maxim 'once a highway always a highway' is based on the theory that the property in a highway is in the owner of the soil subject to an easement in favour of the public. In the case before us, this legal fiction peculiar to English Law cannot arise; for there is no question of any easement whatever. The street itself and the soil thereof is vested in the Municipality in trust for the public. Both are united in the same person, that is, the proprietor,' and then they held that the defendant acquired a perfect title to a part of the road site which had been encroached upon by him 'more than 12 years before the suit' brought by the Municipal Commissioners of the City of Madras to eject him from the encroached site. In that case, the learned Judges further stated that 'when the Crown has once ceded property to an individual or Corporation, the grantee of the property stands in respect of the property granted in the same position as any other proprietor,' i.e., they clearly held that the Government 'lost all right of proprietorship in the street and the drain sites adjoining the street after they had once vested it in the Municipality.' Next, we come to the case in Sundram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 12 M.L.J. 37 where Bashyam Iyengar, J. dissented from the above decision in The Municipal Commissioners for the City of Madras v. Sarangapani Mudaliar 19 MK. 154 and introduced all the fine distinctions known to English Law and held that the Municipal Council did not become, by the vesting of the street and the drains in it, the full owner of the site or soil over which the street exists, that it did not own the soil from the centre of the earth usque ad caclum and that it had only the right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as was necessary to enable it to adequately maintain the street as a street. With the greatest deference, I might be permitted to express some regret that the complications known to English Law were thus introduced into this Presidency throughout this judgment of Bashyam Iyengar, J. The result has been, as pointed out by that very learned Judge himself, that there sprang up a sort of divided ownership between the Municipal Council and the Secretary of State, that there has been introduced different periods of limitation as against the Municipal Council and as against the Secretary of State and that, further, 'the curious result' of the new Article 146 A of the Limitation Act, IX of 1908, would be that, on the expiration of 30 years from the date of the dispossession of the Municipality, the Crown will have the land freed from the burden of the highway, both the Municipality and the man who had been in possession adversely to the Municipality losing all their rights. However, it is probably now too late to go back on these distinctions which were based upon the view of the English and Scotch Law that the site of public highways is presumed to be in the conterminous proprietors and that they merely allow the public to impose a servitude upon the highway, a view which need have no place in a country where porambokes, streets, streams, water etc., almost invariably belong to Government till a private person is able to acquire a title by grant or prescription.
8. The plaintiff has acquired the right as against the Municipality in the present case to have the pial filled over to the drain site by enjoyment for 12 years, (which was the period for the perfection of title by prescription even against a Municipality before the amending Act of 1900 was passed), for his adverse possession against the Municipality of this stratum of space at the height of 3 feet over the level of the drain began about 1880 and the 12 years' possession was completed in 1892 Mohanlal Jechand v. Amratlal Bechardas 3 BK. 174 and Ratnavelu Mudeliar v. Kolandavelu Pillai 16 M.L.J. 281 : but so far as the Government is concerned, be had not had possession for 60 years before the suit and hence his title against Government has not been perfected.
9. Now, even in the case of the Municipality, though plaintiff's title to the stratum of space at the 3 feet height above the drain covered by the pial has been acquired by prescription, the Municipality has, under Section 168 of the District Municipalities Act, 1884, (clause, 3), power to cause projections, encroachments or obstructions in any public street to be removed, and the definition of 'street' under Section 3, Clause (2) includes the drain space on either side of the street. There can be no doubt that though the Municipality may not have vested in it the right to the space up to the sky over the drain and street, it must have had such a right at least up to a height of about 12 feet over the level of the street in order that it might properly exercise its power of repairing, widening and altering, cleansing and doing other duties in connection with the street and the drain. The pial is, therefore, clearly an encroachment, a projection and an obstruction in the street. They have the right accordingly to remove it and this suit for an injunction against their removal of such projection was rightly dismissed by the lower Appellate Court. I would, therefore, confirm its decree, though not on the grounds on which the lower Court based its decision. The appellant must pay the costs of the 2nd respondent, the Secretary of State.
10. Second Appeal No. 1334 of 1910 follows.