LexMUNICIPAL BOARD, MANGLAUR versus SRI MAHADEOJI. MAHARAJ
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' MUNICIPAL BOARD, MANGLAUR v. SRI MAHADEOR. MAHARAJ November 24, 1964 [K. SuBBA RAo, RAGHUBAR DAYAL AND N. RAJAGOPALA AYYANGAR 11.) Pathway dedicated to the public-Inference of dedicatlo1t-How to be .draw-Municipality whether has right to build structures on .<uch dedi- ·caled land--Owner whether can claim possession of such land. A public road and two drains on the north and south of that road ran through the respondent's land. The middle portion of the road was metalled. In the space between the metalled portion and the drains the local Municipality wanted to instal a statue and two rooms for a plyo and library. The respondent filed a suit for a permanent injunction to restrain A B c the Municipality from putting up the said structures and-for delivery of possession. Tue Municipality pleaded that the site was part of the road which vested in it. The Trial court decreed the respondent's suit. The first appellate court held that since the road · along with the patris bad been under the management of the Municipal Board for several decades D the respondent had lost title to the same, errd that while the Municipality bad no right to put up structures on the land the respondent bad no right to object. The High Court in second appeal held that it bad not been shown how the ~pondent had lost his title to the Kacha strips of land or patris. On that finding it set aside the decree of the first appellate court and restored that of the Trial court. The Municipality appealed to the Supreme Court by special leave. It was contended for the appellant Municipality that the entire pathway E between the two drains stood dedicated to the public; and the fact that only a part of tlie pathway was metalled would not detract from the totality of the dedication. HELD: (i) Inference of dedication of a highway to the public may be drawn from a long use of the highway by the public. The width of the highway depended upon the extent of the use. The side lands are usually included in the road for they are necessary for the proper main- F tenance of the road.' [247 CD] Halsbury's Law• of England, 3rd Edn, Vol. 19, p. 49, referred to. Harvey v. Truro Rural Disrrict'Counci/, (1903) L.R. 2 Cb. 638, Rex v. Wright (1832) 2 B. & Ad. 681 : 37 R.R. 520 and Anukul Chandra v. Dacca Dt. Board A.I.R. 1928 Cal. 485, referred to. In the present case it was not disputed that the metalled road was dedicated to the public. The inference that the side lands were also included in the public way was drawn easily as tbe said lands were between the metalled road and the drains admittedly maintained by the Municipal Board. [247 E-F] (ii) When a pathway vests in the Municipality in the above manner the Municipality doos not own the soil. It has the exclusive 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 is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. So far as the owner of the land is concerned G H ! MUNICIPAL BOARD v. MAHADEOJI (Subba Rao, /.) 2 43 A the poeition is that subject lo tho right of public to pass and repa11 OD tho highway the owner of the soil in general remains the occupier of it and u such may maintain action for trespass against any member of the public who acts in excess of his rights. [247 F-0] B c Partt and Mackenzies Law of Highways, 20th &In. at p. 4, and S. Sun- daram Ayyar v. Municipal Council of Madura and the Secretary of Stale /or India in Council, (1902) l.L.R. 25 Mad. 635, referred to. (iii) The appellant Municipality had no right to put up any statue or ltruCtUreo on the public pathway which were not necessary for the maint- ance and user of it as a pathway. The respondent on the other hand could not aslr. for possession of any part of the public pathway as it continued lo YClt in the Municipality. [247 H-248 BJ CML APPELLATE JURISDICTION: Civil Appeal No. 841 of 1962. Appeal by special leave from the judgment and decree dated January l, 1960, of the Allahabad High Court in Second Appeal No. 445 of 1952. Mohan Behari Lal, for the appellant. S. P. Sinha and Dharam D B hushan, for the respondent. The Judgment of the Court was delivered by Sobba Rao, J. This appeal by special leave raises the ques- tion of the right of
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