Decided on March 19,1953

RAHIMA BI Appellant


Panchapakesa Ayyar, J. - (1.) This civil miscellaneous appeal raises an interesting question, namely, whether lands vested by Government in a municipality or other local authority will continue to be in the ownership of the Government or will be, like lands assigned by Government to private persons, in the ownership of the municipality or local authority, and whether the rules of prescription regarding the easements, ownership etc. claimed over such lands by private persons will be toe rules applicable to Government or only those applicable to the municipality and local authority, and whether in a suit, brought against the municipality for an injunction restraining them from putting up a wall on such land, vested in them, on the ground that it is affecting the rights of the plaintiffs (private parties) to light, air, access etc., the Government is a proper and necessary party and can be directed to be added under Order 1 Rule 10 C. P. C., as held by the lower appellate court.
(2.) The facts are simple. Certain land belonging to the Government was vested in the Vellore municipality for the purpose of having a city market. As long ago as at least 1874, it is alleged that a portion of this land, so vested in the municipality, was sold to certain persons, including the appellants' predecessors-in-title, and they put up certain shops and carried on their trade therein. The city market, at the spot we are now concerned with, did not have a wall, and there was ample frontage for these shops; but, as the municipality found that thieves were increasing in the city market and the market had to be protected by putting up a high wall, they wanted to put up a wall 8 ft. high, some 7 ft. 6 inches from the frontage of these shops, including the drain 1 ft. 4 inches broad, thus only leaving a frontage of 6 ft. 2 inches. The threatened wall, 8 ft. high, would naturally modify the old amenities, though whether any legal rights are affected thereby had to be determined. Three suits were filed against the municipality for an Injunction against the erection of such a wall on the ground that the right of access and free flow of light and air were interfered with by this high wall so short a distance away. The appellants filed O.S. No. 521 of 1948, objecting to the putting up of a wall within 25 feet of their shops, premises Nos. 15 to 20-A in New Sitting Street Bazar. The two other suits filed were O. S. Nos. 17 and 24 of 1949. The wall was completed in those two cases. Only the foundations were laid in this case.
(3.) The issues framed in O. S. No. 521 of 1948, which was vigorously contested by represented by its Commissioner (19.... Page 3 of 8 the Municipality, were those : "1. Whether the plaintiffs have got a natural right to have free access, by carriages, lorries etc., to get inside their shops and to have free and unobstructed light and air on all the sides, as alleged in paragraph 6 of the plaint; 2. Whether the plaintiffs have acquired the said rights by prescription for a period of 70 years; 3. Whether the plaintiffs are entitled to the said easements as claimed; 4. Whether the Government is a necessary party to the suit; 5. Whether the plaintiffs are entitled to the injunctions asked for; 6. To what relief, if any, are the parties entitled?" 3a. Similar issues were framed in the other two suits.;

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