Azmat Ali Khan vs Nihal Chand

Oldfield, J.—The plaintiffs are zamindars of "Qasbah" Muzaffarnagar and sue the defendant, who is also a zamindar, on the allegation that a plot of land, comprising 175 square yards, formed a portion of a highway connecting Sulabtanganj with the Shamli road and waste land adjoining it, entered as No. 2566 in the "abadi khasra," was owned by the plaintiffs and other co-sharers, and defendant has wrongfully enclosed it; also that another piece of land, comprising 28 square yards, No, 1300, is land adjoining the Shamli road, on which the defendant has built a chabutra. Plaintiffs seek to have the erections made by defendant demolished and the land restored to its original state. The defendant admits that the 175 square yards in No. 2566 was once part of a road, but alleges that the Municipality, in straightening the road, diverted it from this portion, and took the road through a portion of a house belonging to defendant, and gave the above land to him in exchange for the land taken; and that No. 1300 is part of an existing public road to which the plaintiffs have no right. The Court of First Instance (Munsif) decreed the entire claim. The Subordinate Judge (Lower Appellate Court) decreed the claim in respect to No. 2566 and dismissed the rest. The defendant has appealed. We are only concerned with the claim for No. 2566.

The Subordinate Judge has found that this land was formerly a highway, and that the plaintiffs and defendant as the zamindars of the "qasbah" are owners of the soil, and since it has ceased to be a highway, they have full rights over it; that the Municipality-had no power to make the land over to the defendant; and the latter as a joint owner could not enclose it against the will of the plaintiffs. In our opinion the decision must be affirmed. The land was either a highway or waste land adjoining it, and there is a presumption that such land belongs to the owners of the soil of the adjoining land. The plaintiffs and defendant own jointly, as zamindars of the "qasbah," the adjoining land, and the presumption in their favour that they jointly own the highway has not been rebutted.

Section 38 of the Municipalities Act was not intended to deprive persons of any private right of property they might have in the land used as a public highway, or to confer such right on the Municipality, nor has the section any such effect. The plaintiffs, as joint owners, now that the land is no longer a public highway, have a good cause of action against the defendant. The appeal is dismissed with costs.