( 1. ) THIS second appeal arises out of a suit instituted by the respondent for possession of a piece of land, situated at Bina. The plaintiffs case is that the suit land is a part of Survey No. 648/1, belonging to him. It was alleged that in the month of October 1954 the defendant Municipality collected some stones on the land and threatened to take wrongful possession of it. The defendant resisted the suit on the ground that the disputed piece of land had become a public street as it bad been for more than 50 years as a passage without any interruption. Title was also claimed on the ground of adverse possession. Section 48 of the C. P. and Berar Municipalities Act, 1922 (hereinafter called the Act) was further pleaded as a bar to the suit.

( 2. ) THE trial Judge found that Khasra No. 648/ 1 was the absolute occupancy holding of the plaintiff. This finding has been affirmed by the first appellate Court. It has not been, and could not be, challenged before me. The trial Judge, however, non-suited the plaintiff as he found that the suit land became a public street within the meaning of the Act. He also held that the suit was barred by time under Section 48 of the Act.

( 3. ) THE first appellate Court reversed both these findings and came to the conclusion that the Municipality failed to prove that it was a public street. The learned Judge held that the user by a section of the public was only permissive and it did not create any title in the public or the Municipality, nor was it sufficient to divest the plaintiff of his title. He held that Section 48 of the Act was not applicable to the suit. In the result, a decree for possession was passed in favour of the plaintiff.

( 4. ) IN its written statement the defendant pleaded adverse possession. But adverse posession implies that the person claiming it is in actual possession, at the time, with a notorious hostile claim of exclusive title to repel which the true owner would then be in a position to maintain an action. In Ussam Kasim Salt v. Secy, of State, AIR 1923 Mad 624 it is held that there can be no adverse possession by public and the use of land by them cannot affect plaintiffs title or possession and that no rule can be laid down that acquisition of a right by the public will be equivalent to its acquisition by the Secretary of State, as the public or a portion of it sometimes prescribes or attempts to prescribe against Government. Moreover, it is settled law that with regard to a vacant plot of land, possession must be deemed to be of the title-holder unless somebody can prove his possession. Tukaram Bajirao v. Tukaram Yeshwant, AIR 1927 Nag 37; Krishnaji v. Madhusa AIR 1934 Bom 207 (FB) and Aziz Uddin v. Maqbul Hussain AIR 1939 All 257. The defendant Municipality could not prove any acts of adverse possession to justify the plea. In that situation, I must mention in fairness to the learned counsel appearing for the appellant that he did not canvass the point with any vigour.

( 5. ) IT is contended by Shri Jain that the land in question became a public street within the meaning of Section 3 (m) of the Act. In my opinion, this contention has no substance. The word "street" is defined in sub-clause (1), and "public street" in Sub-clause (2), of Section 3 (m ).

" public street means any street: (i) over which the public have a right of way, or (ii) heretofore levelled, paved, metalled, sewered or repaired out of municipal or other public funds, or (iii) which, under the provisions of this Act, becomes a public street.

Stress is laid on the fact that the public had been using the land in question for a large number of years. But I am clear in my mind that a mere user, even though it is unobstructed, does not mean "a right of way. " Unless it is established that the public used the disputed portion of Khasra No. 648/1 as of right, it does not become a public street under Section 3 (m ). Even in the written statement, the defendant did not plead that the land was used as o