Anantakrishna Aiyar, J - (1.)The plaintiff instituted the original suit for a perpetual injunction restraining the Municipal Council of Calicut from interfering with the thodu (channel) on the western side of the plaintiff's property.
(2.)The case of the plaintiff was that the channel was his and that he was entitled to do what be liked with the same, and that for the convenient enjoyment of his land which is on the east of the channel he (the plaintiff) constructed what has been described as a "gate" across the channel. The Municipal Council having by its proceedings dated 12 January 1924 passed a resolution prejudicial to the rights of the plaintiff in the lawful exercise of his legal ownership of the property, he instituted the original suit for the relief of injunction claimed by him. The case of the municipal council in para 3 of the written statement was that the footpath running north to south just to the west of the channel in question as well as the channel were public properties and as such under the control of the Municipality. The learned District Munsif who tried the suit framed two issues in the case; (1) whether the water channel in question belonged to the plaintiff and (2) whether the plaintiff is entitled to the injunction claimed. He held that the site of the channel B belonged to the plaintiff and, whether the path just to the west of the channel be regarded as a public street or a private street, he was of opinion that the channel in question should be taken to be the property of the municipality as part of the street. He accordingly dismissed the plaintiff's suit. On appeal preferred by the plaintiff the learned Subordinate Judge concurred with the finding arrived at by the trial Court on the question of the ownership of the site covered by the channel BB. He however, was of opinion that the lane or the path just to the west of BB could not be held to be either a public or a private street. He reversed the decision of the trial Court and granted the injunction prayed for in the plaint. The defendant has accordingly preferred the present second appeal.
(3.)On behalf of the appellant the learned advocate argued that the lower appellate Court was not justified, in the circumstances, in recording any finding on the question whether the lane or the path to the west of BB was a public street or a private street within the definitions contained in the District Municipalities Act and that the way in which the lower appellate Court disposed of this part of the case was not satisfactory. On the other hand, the learned advocate for the plaintiff-respondent sought to support the decision of the lower appellate Court by drawing my attention to various passages in its judgment where it is mentioned that the channel was really not a definite one and that the same was used by the plaintiff for his convenience only. As I propose to ask the lower appellate Court to frame a fresh issue on the question whether the lane or the path called A in the proceedings is a public street or a private street within the definition contained in the District Municipalities Act, I am anxious not to say anything which might in any way cause any embarrassment to the lower appellate Court in the ultimate discussion and decision of that question.