MUNICIPAL BOARD OF BENARES Vs. RAM KRISHNA DAS

JUDGEMENT

(1.) This appeal arises out of a suit under the following circumstances: In the city of Benares there is a small lane closed at one end by a door. To the south of this lane is the house of the plaintiff. There was a projection of one of the, upper stories of the plaintiff's house on this lane. The plaintiff's allegation is that he re- constructed this part of his building but the defendant, the Municipal Board of Benares, gave him a notice to remove that part of the building on the ground that it had been built 1 over a public lane without the permission of the defendant; that thereupon, on the 16 of September 1918, the plaintiff gave's two months notice to the defendant, asking it to refrain from such an unlawful attitude. The defendant, the Municipal Board prosecuted the plaintiff criminally and he was fined Rs. 5 on the 20 November 1918. "The plaintiff thereupon gave the Board a second notice on the 10 of January 1019, claiming ownership of the lane and alleges that the defendant intends to have the constructions demolished through its labourers, and that the defendant took these unlawful proceedings at the instigation of "ore Bisheshar Nath a neighbour and enemy of the plaintiff; hence the present suit for a declaration that the lane belongs to the plaintiff and, in the alternative, for possession, if he is found to be out of possession.

(2.) The defendant contended that the plaintiff had no right to bring the suit, that the lane in dispute was a public lane and the people whose doors opened into the said lane had been using it as a passage for a long time, and that the Municipal drain underneath the lane and the lane itself are cleaned and preserved by the Board, and the present building over the lane has been unlawfully made by the plaintiff without obtaining permission from the Board, It further pleaded that notice issued by the Board was valid and effectual and the plaintiff had no right to thake an objection thereto.

(3.) I have not mentioned the relief for injunction against the Municipal Board which the plaintiff claimed at first, because the plaintiff-subsequently withdrew it.