1. These were suits against the Chairman of the Santipur Municipality for recovery of certain portions of a piece of land called Rath Saran and for damages. The suits were decreed by the Munsif and partially decreed by the Subordinate Judge in appeal.
2. The defendant has appealed to this Court. The first point taken is that on the facts found by the Subordinate Judge that officer should have held that the lands in suit had vested in the Municipality. Reference is made to Section 30 of the Bengal Municipal Act, 1884. That section runs as follows All roads including the soil and all bridges, tanks, ghats, wells, channels and drains in any Municipality (not being private property and not being maintained by Government or at the public expense) * * * shall vest in the Commissioners.' It is argued that the words in parenthesis refer only to bridges, tanks &c.; and not to the words 'All roads including the soil.' With this contention I agree. It appears to me that if the words in parenthesis apply to roads as well as to bridges, tanks etc. the words 'and all' in the first line of the section are superfluous. Moreover, as is pointed out by Mr. Collier, a Commentator on the Act, whose view on this point appears to me to be correct, before the amendment of the Act in 1894, the words in parenthesis could hardly have applied to 'roads', because before that amendment the word road' did not include the soil but related merely to the surface; and having regard to the definition of 'road' in the Act it was not possible that the surface of any road, as defined in the Act, could be private property. In 1894, the words including the soil' were added and it then became necessary to decide whether the subsoil of roads, which had not up till then been included in the scope of the Act, should in the case of private property vest in the Commissioners or not. The express insertion of the worlds 'and all' is an indication that the Legislature intended that the subsoil should follow the surface, and should cease to be private property as the surface had already ceased under the original Act before amendment. In any case as the words at present run they must grammatically be construed in the sense contended for by the appellant. It is true that it is difficult, if not impossible, to reconcile this construction with Section 31. But this difficulty may be due to a slip in drafting and need not compel me to construe Section 30 otherwise than in the ordinary grammatical way. If, therefore, the lands in suit are a road as defined in the Act, they must, I think, vest in the Municipality under Section 30.
3. But on the findings of fact arrived at by both the Courts below I think it is impossible for me in second appeal to hold that the lands are a road as defined in the Act. The Munsif remarks It is significant that the car is also preserved in a shed erected on the road, so the main object for which the land is kept open is for the benefit of the idol and the people generally pass over the same. This does not turn the open land into a public way. The people pass over the land by implied permission of the shebaits as the idol is benefited thereby. Tolls are collected, the people go and pay pronami to the idol and the tenants of the idol have also the advantage of going out and coming into the rooms which they occupy. This does not turn the land into a public thoroughfare.' And the same view is taken by the learned Subordinate Judge. He remarks on the fact that for a week in each year traffic is almost entirely stopped and the land is covered by temporary sheds erected by stall-keepers from which the shebaits collect tolls. Nor is it suggested that in taking such steps the shebaits in any way exceed their powers. On these facts he comes to the conclusion that 'the public have no right to use the land as a thoroughfare in such an unrestricted manner as an ordinary public thoroughfare.' And I understand by that he means that the public have not over these lands any right of way as of right. That appears to be a finding of fact based on evidence with which in second appeal I cannot interfere.
4. Secondly, it is argued that the fact that public have a right of way over these lands is res judicata. It appears that there was a suit inter partes in 1 : 67; and it is argued that the decision in that suit establishes that the public have a right of way over the lands. On referring to the judgment it appears that the question of the public right of way was not in issue in the case. In his decision on the second and fourth issues the Munsif remarked that the plaintiffs had not prayed for possession of the disputed land by stopping the existing passage,' the 'passage' being apparently the passage of the public to and fro. In the decree all that is stated is a mere note at the end of the order portion of the decree which runs as follows: 'Be it known that by the decree the right of passage of the public shall not be hampered.' This does not amount to a decision that the public have any right of way. In my opinion, it does not go further than deciding that if they had any right of way that decree was not concerned with it and did not prejudice it. Under these circumstances no question of res judicata appears to me to arise. The result is that the appeals are dismissed with costs.