The main legal point established in the judgment is the application of adverse possession and the power of the Municipality to remove obstructions in public streets under Section 168 of the District Municipalities Act.

Sundara Aiyar, J.

1. This is a suit by the owner of a house in Bellary for a declaration of his right, to a pial and for restraining the Municipal Council of the town from removing it. At the instance of the Municipal Council, the Secretary of State for India in Council was made a party to the suit. The plaintiffs case was that the pial belonged to him and that the Municipal Council had, therefore, no right to remove it as it threatened to do. The Council denied the plaintiffs right to the site of the pial and the Government set up its ownership to the site. The issues framed in suit raised the questions, how long the suit pial was in existence, whether the plaintiff acquired a prescriptive title to the site of the pial, If he was not the original owner, and whether the Municipality was entitled to demolish it.

2. Both Courts have found that the street was dedicated to the public by the Government. The houses were built on sites originally belonging to Government, which it gave to the people when they were compelled remove form houses occupied by them the fort of Bellary. The lower Court also found that the land over which the pial stands was not part of the plaintiffs house. These findings are binding on us in second appeal. It has also been found by the lower Courts that the pial was constructed about the year 1883 or 1884, that prior to its construction, there were loose slabs of stone which were used for the purpose of vending various articles but that the Municipal servants used to remove these slabs when necessary for the purpose of repairing the drain.

3. It was argued before us that the plaintiffs possession must be taken to date from the time when the loose slabs were in existence; but, having regard to the fact that the slabs used to be removed when the Municipality wished to do so, it is not possible to regard the plaintiffs possession as having been effective until the present pial was constructed in 1883. If the Municipality had the right to the space above the drain up to the portion occupied by the plaintiff, its right to possession was not disturbed in an effective manner by the use of the loose slabs of stone. From 1883, however, the plaintiff must be taken to have obtained an effective and exclusive possession of the pial. The learned Pleader for the Municipal Council argued that this possession was not adverse to the Municipality, inasmuch as, for the purposes of its functions, it was not necessary for the Municipality to use the site of the pial. This contention I am entirely unable to accept. According to the decision in Sundaram Iyer v. The Municipal Corporation of Madura and the Secretary of State for India in Council 25 M. 635; 12 M.L.J. 37, the street, which on the findings must be taken to include the drain, was vested in the Municipality for the purposes for which the Council was constituted. Their right was not a mere right of easement, according to the view adopted by the learned Judges who decided that case, but was a special kind of property in the site previously unknown to the law but created by statute. This was also the view adopted by James, L.J., in Rolls v. Vestry of St. George the Martyr Southwark (1880)14 Ch. D. 785 at pp. 795, 796; 43 L.T. 140; 28 W.R. 867; 44 J.P. 680; 49 L.J. Ch. 691. See also the judgment of Lord Morris in Municipal Council of Sydney v. Young (1898) App. Cas. 457 : 67 L.J.P.C. 40 : 71 L.T. 365 : 46 W.R. 561. Sundaram Iyer v. The Municipal Council of Madura and the Secretary of State for India in Council 25 M. 635; 12 M.L.J. 37, regards a Municipal Council as having a right both to the surface of the street and to a portion of the soil beneath and the space above so far as would be necessary for the discharge of its functions as the authority bound to maintain, protect and repair the road. If, then, the Municipality was the owner of the site occupied by the pial in 1883, it must be taken to have been dispossessed by the plaintiff when he constructed the pial. The