Judgment 1. The Commissioners of Bhagalpur Municipality are the appellants in this appeal. The suit in question had been filed on behalf of the plaintiff-respondent for declaration that Plot No. 9873 was not a municipal property and as such the aforesaid municipality had no right to interfere with the possession of the plaintiff over the said plot which is a lane. According to the plaintiff he was the owner and in possession of holdings Nos. 3,4,5, and 6 of Ward No. V within the Bhagalpur municipality and there was private passage running from east to west which was being used for coming and going over the aforesaid holdings since long. It was asserted on behalf of the plaintiff that he and his family members "were using the lane since the time of grand- father of the plaintiff but in spite of that the appellant-municipality served a notice u/s. 196 of the Bihar and Orissa Municipal Act (hereinafter referred to as "the Act") directing the plaintiff to remove the alleged encroachment from the lane in question. It was alleged on behalf of the plaintiff that the aforesaid notice was without any authority in law because the lane was not the property of the municipality. 2. On behalf of the defendant-appellants the claim made by the plaintiff was denied and it was asserted that the lane in question will be deemed to be a municipal holding within the meaning of the Act and as such the Commissioners of the Municipality were within their rights in issuing notice to the plaintiff to remove an encroachment over the said lane. The learned Munsif on consideration of the materials on record came to the conclusion that passage in question was private property of the plaintiff and he was in exclusive possession over the same and the general public or public of the locality did not use the passage. On that finding he held that the passage was not a municipal property so as to vest right in the Commissioners of the Municipality to issue notice under Sec.196 of the Act to the plaintiff. On the aforesaid findings the suit of the plaintiff was decreed. On appeal being filed on behalf of the defendant-appellants the findings recorded by the trial court were affirmed by the learned Additional Subordinate Judge. 3. On the aforesaid findings the suit of the plaintiff was decreed. On appeal being filed on behalf of the defendant-appellants the findings recorded by the trial court were affirmed by the learned Additional Subordinate Judge. 3. Learned counsel appearing for the appellants submitted that no sooner a passage or lane is used by public in general or a section of public it automatically becomes a municipal property within the meaning of the Act and the concerned municipality has authority to issue necessary directions for maintenance and clearance of encroachment, if any, S.3 (24) of the Act defines road as follows: " road means any road, bridge, foot-way, lane, square, court, ally, or passage which the public, or any portion of the public, has a right to pass along and includes, on both sides, the drains or gutters and the land up to the defined boundary of any abutting property, not- withstanding the projection over such land of any platform, Verandah or other superstructure;" What is municipal property has been mentioned in Sec. 58 of the Act. The relevant portion is as follows "All property within the municipality of the nature hereinafter in this section specified, other than private property or property maintained by any Government or another local authority, shall vest in and belong to the Commissioners, and shall, with all other property of what nature or kind soever which may become vested in the Commissioners, be under their direction, management and control, that is to say- (a) all roads, including the soil, the payments, stones, and other materials thereof, and all drains, bridges, trees, erections, materials, implements and other things provided for such roads." On a plain reading of Sec. 58 of the Act it will appear that all property within the municipality detailed in that section vests in the Commissioners and shall he under their direction, management and control except the property which is private property or property maintained by other local authority. 4. Sec. 61 of the Act contains provision as to how any private road, bridge, channel or drain etc. can be transferred to the Commissioners. The details of "road" as mentioned in Sections 58 and 61 of the Act makes it clear that within the municipality there may be private road, channel, drain which cannot be held to be municipal property. Sec. 61 of the Act contains provision as to how any private road, bridge, channel or drain etc. can be transferred to the Commissioners. The details of "road" as mentioned in Sections 58 and 61 of the Act makes it clear that within the municipality there may be private road, channel, drain which cannot be held to be municipal property. Whether such road, channel or drain is a municipal property or not has to be determined on the facts and circumstances of each case. If a road which is being used by public or any portion of the public as a matter of right then it will be deemed to be a road within the meaning of the Act and it will be a municipal property. On the other hand, if such road is being used exclusively by the owner or the person in occupation thereof and public or a section of public has no right to pass through the same, it cannot be held to be a road within the meaning of Sec.3 (24) of the Act. 5. Learned Counsel appearing for the appellants placed reliance on a Full Bench decision of Calcutta High Court in Nirode Chandra Mukherjee V/s. Chairman of Commissioners of Kamarhati Municipality (AIR 1936 Cal 506) where a question had arisen under the Bengal Municipal Act as to whether the road in question was a municipal road or a private road. In that case the courts below had recorded a finding that public in general had a right of way over the strip of Land in question. On that finding it was held that it will be deemed to be a municipal road, and the provisions of the aforesaid Act were applicable. I have already pointed out that the two courts below in the instant case have held that the passage which is said to be a road within the meaning of Sec.3 (24) of the Act was in exclusive possession of the plaintiff and his ancestors and public or section of public never used the passage. In my view the courts below have rightly come to the conclusion that in such a situation it will not be deemed to be a municipal property or a municipal road so as to vest power in the defendant-appellants to issue notice under Sec.196 of the Bihar and Orissa Municipal Act. In my view the courts below have rightly come to the conclusion that in such a situation it will not be deemed to be a municipal property or a municipal road so as to vest power in the defendant-appellants to issue notice under Sec.196 of the Bihar and Orissa Municipal Act. It need not be impressed that the Municipal Commissioners have no right to issue notice under Sec.196 of the Act unless the property in question has vested in them. 6. In this connection reference may be made to a Full (Div.) Bench decision of this Court in the case of Commissioner of Jamalpur Municipality V/s. Ram Lal Sahu (1962 BLJR 395) wherein it was pointed out that unless the property is vested in the Municipality, Commissioners of the Municipality had no authority to issue notice under Sec.196 of the Act. 7. In the result the appeal fails and it is dismissed but in the circumstances of the case there will be no order as to costs.