Arunachala Chettiar and Others vs Municipal Council of Mayavaram

Sadasiva Aiyar, J.—In S.A. Nos. 1859 to 1875 of 1918. The plaintiffs 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 Thirumanjana street which is vested

in the Mayavaram Muncipality. 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 u/s 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 sidewall 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 clearly 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 (1909) 19 M.L.J. 757 Basawaswaraswami v. The Bellary Municipal Council ILR (1912) Mad. 6.

The Chairman Municipal Council, Srirangam v. Subba Pandithar ILR (1913) Mad. 486 and Corporation of Madras v. Mohan Lal, Sowcar 30

Ind.Cas. 683. The Mayavaram Municipality was established in 1866. The Thirumanjanam Street itself is admitted to be a public street. The drains

became therefore vested in the Municipality u/s 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 learvned 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.

The second 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 encroachment over what was once a drain is a question on which conflicting opinions were expressed in Mothe Achayya Garu v.

Municipal Council of Ellore (1909) 19 M.L.J. 757 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 Gorporation 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 (1909) 19

M.L.J. 757.

In the result these second appeals are dismissed with costs. I would allow Rs. 340 as Vakils'' fee for all the 17 cases at Rs. 20 a case.

Burn, J.

I agree.