Land vessed in Municipality.

This is a batch of Civil Revision Petitions which have been filed against the order made by the District Munsif of Proddatur that the Collector is neither a necessary nor a proper party in several suits in which he was sought to be impleaded as a party defendant.

The suits have been filed by certain residents of Proddatur against the Proddatur Municipality which has booked them in regard to certain encroachments on road margins as per survey under the Madras Survey and Boundaries Act. These residents have filed these suits for declaration of their title in respect of those lands forming the subject — matter of encroachment and eviction notices and for an injunction against the Municipality from disturbing their possession. The Municipality contended that these properties were vested in the Municipality only for municipal purposes and that the grant of a declaration of title to the plaintiffs materially affects the right of the real owner, the Government, and that the Government would therefore be a necessary party. It is further urged that even if the suit is one under section 14 of the Survey and Boundaries Act, inasmuch as the suits are between private persons and the Municipality who holds the suit property with a limited interest therein subject to the control of the Government, the real owner, the suits are bad for non — joinder of the necessary party, viz., the Government. I may point out here that this contention is supported by the Government.

The lower Court invoking the decisions in Secretary of State v. Malraju Venkata Narasimha Rao Bahadur and another1 and Appala Narasimham v. Commissioner, Municipal Council, Vizagapatam2 to the facts of this case and refusing to apply the decision in Krishnaswami Naidu v. The Municipal Council, Bellary3 held that the Government represented by the Collector was not a necessary party in these suits for declarations and injunction and dismissed the contentions of the Municipality. Hence these Civil Revision Petitions.

There can be no doubt that the position taken by the learned District Munsif is thoroughly incorrect. That these suit properties have only been vested in the Municipality and that they must be held and used by it for the purposes of the Act and that this vesting does not make the Municipality the owner of the land and that the proprietorship is retained by the Government cannot be disputed and has been laid down in a long line of decisions of the Madras High Court. Bashyam Ayyangar, J., in Sundaram Ayyar v. The Municipal Council of Madura1, carefully considered all the previous decisions and came to the conclusion that when a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists ; but it has 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. In Basaweswaraswami v. The Bellary Municipal Council2, Sadasiva Ayyar, J., expressed regret that the complication of English law has been introduced in this Presidency through the judgment of Bashyam Ayyangar, J. But the learned Judge also says that it is not too late to go back on those distinctions. Subsequently in Jagannadha v. Rajahmundry Taluk Board3, the leading cases relating to vesting were discussed and it was held that the property vested in such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use. On this conclusion it follows that when there is a dispute between the Municipal resident and the Municipality and in which the declaration sought is such that in order to be binding, the ultimate owner also should be brought on record, the