JUDGMENT

Barlee, A J C - It is recited in the plaint (i) that the three plaintiffs who are brothers, own plot 21-A, sheet E-7 in Eambaugh Quarter, (ii) that they had left a portion of 34 square yards vacant, (iii) that the defendant municipality had taken possession of it to build a road; and had refused to pay compensation. Accordingly they claimed Rs. 1,700-0-0.

2. The defendant had pleaded inter alia that the land in dispute had formed a part of a private street; that they had not taken possession of it; but that in the exercise of their statutory powers under Section 90(3), Bombay District Municipal Act 3 of 1901, they had metalled and paved it, after the residents of the houses abutting on the street had failed to do so when required to do so. Lastly they pleaded that the suit was time barred.

3. On these pleadings the following issues were framed:

1. Have the plaintiffs left a portion of survey No. 21-A, survey sheet B-7, Rambaugh Quarter in front of the said plot unbuilt? If so, what is the area of the said portion?

2. Is the said land a portion of the private street?

3. Did the defendants take possession of an acquire the said land for the purpose of constructing a road? (Covers paras. 3 and 4 of the plaint and paras. 2 to 5 of the W.S.).

4. Did the defendants exercise the powers under Section 90, Clause (3), Municipal Act?

5. Are the defendants liable to pay compensation to the plaintiffs for the land? If so, what amount? (Covers para. 4 of the plaint and paras. 4 and 5 of the W.S.).

6. Is the suit barred by limitation under Section 167, Municipal Act?

7. General.

4. Findings are given below at the end of the judgment.

5. As has been shown in the pleadings, the plaintiffs' case is, that the defendant municipality, has taken possession of a plot of land belonging to him, and have incorporated it in a new road which they have built, but have refused to pay compensation. The defence is that the area in dispute was already a part of a street and that they have merely metalled and paved it as they were entitled to do by Section 90, District Municipal Act, which I shall henceforth call the Act.

6. There is little dispute about the facts. The area in dispute is a part of survey No. 21-A and belonged to the plaintiffs. Survey No. 21-A is part of only survey No. 21, which was sub-divided into building plots at some date before 1909. This date is given by Mr. Assudomal who went in that year to reside in the house of Rewachand which adjoins the plaintiff's on the north. The plaintiff's father purchased this plot in 1910 and at that time Rewachand's house was in existence, and a passage had been left to the west side of it by which pedestrians could reach the Bunder Road. This is proved by the plaintiff's sale deed and admitted by plaintiff Gurmukhsing. He has admitted that at the time the owners of the plots to the north of his house had left vacant an irregularly shaped strip of land to the west of and in front of their houses, which on one side met Bunder Road and on the other the area in dispute, and formed with that area a passage from the Bunder Road to the Bava Road. It was the only passage available at the time and for many years after; and the houses faced it and had their doors opening on to it. All the houses including the plaintiffs' were built as flats, and the tenants of all, including theirs, used this passage as a passage to the Bava Road or the Bunder Road as they wished. The only obstruction was a wall between the plaintiffs' land and Rewachand's. But there was a door in the wall and no one, not even the plaintiff himself, ever saw the door shut. The wall fell down, and the plaintiffs then put up a post to prevent wheeled traffic using the lane; but that also was removed. The only question of fact in dispute appears to be how long the wall and post were there; but it is not a very material point, as the defendant municipality has not pleaded that house-holder ever intended to dedicate the land as a public road. I need only s