B.N.Nigam, J. - (1.) Ram Swarup Gupta filed civil suit No. 588 of 1949-50 against the Cantonment Board, Lucknow, He stated that he had been given a notice regarding certain constructions made by him. The transgressions alleged were: (1) Changing of roof of one room on the second storey by replacing wooden beams by terrace and brick work. (2) Constructing brick wall by removing temporary tin sheets on the east side of the kitchen overhanging the public street. (3) Constructing pardah wall, 5 Ft. in height on the third storey of the building with two openings therein, (4) Constructing Chhajja on south, and east side of the house measuring 4'-6" width (the former Chhajja was 2 1/2') supported on iron poles and thus encroaching on Government land comprising S. No. 111/822, Class B-4 land. The plaintiff claimed the relief that the defendant he restrained from taking any steps for the demolition of any structures whatsoever of the building known as No. 7, Napier Road, Sadar Bazar Cantonments, Lucknow. After hearing the parties, the learned Munsif dismissed the plaintiff's suit for permanent injunction but directed the defendant not to demolish the purdah, wall on the second floor in the plaintiff's house at No. 7, Napier Road, Luck-now. Against that judgment and decree, i.e., dismissal of the plaintiff's suit in the main but allowing him a decree only in respect of one of the four alleged transgressions, Ram Swarup Gupta preferred an appeal. The Cantonment Board submitted to the decree granted by the learned Munsif This appeal No. 234 of 1951/11 of 1952 came up for hearing before the learned Civil Judge, Maliha-bad and was dismissed by judgment dated 30th May, 1952. Now Ram Swarup Gupta, the plaintiff, has come up in second appeal. I have heard the learned counsel for the parties.
(2.) The provision of law, that falls for my interpretation, is Section 179 of the Cantonments Act (Act II of 1924). The section so far as it is relevant for our purposes reads : "179(1) Whoever intends to erect or re-erect any building in a cantonment shall apply for sanction by giving notice in writing of his intention to the Board. (2) For the purposes of this Act, a person shall be deemed to erect or re-erect a building who( a) makes any material alteration or enlargement of any building, or (b) ................ (c) ................ (d) ................ (e) .............. (f) ................ (g) makes any alteration to any building which increases or diminishes the height of, or area covered by, or the cubic capacity of, the building, or which reduces the cubic capacity of any room in the building below the minimum prescribed by any bye-law made under this Act." Four transgressions, were alleged against the plaintiff. It was alleged that he bad changed the roof of the room on the first floor by replacing wooden beams by terrace and brick work. (Now the allegation is that reinforced cement concrete slab has been put instead of a roof supported on wooden beams). It was further stated that he had constructed a wall on the second storey mentioned as the purdah, wall. In respect of this the Cantonment Board has already submitted to the decree granted by the first court. The third allegation was that the plaintiff had replaced one of the tin sheet walls of a kitchen overhanging the public street by a brick wall, and the last allegation was that he had extended his Chhajja by a further two feet.
(3.) Two questions arise for my consideration. One is a question of fact as to whether the Chhajja has been extended and the other is a question of law as to whether these allegations. If proved, amount to erection or re-erection within the terms of Section 179 of the Cantonments Act. As regards the first question, I am of opinion that the finding of fact recorded by the learned Civil Judge is binding on me. At one stage the learned counsel urged that the learned Civil Judge had relied on an inadmissible plan. I am of opinion that there is no force in that suggestion. The learned Civil Judge has clearly stated : "Moreover the statement of a person who had Seen the house before the repairs were carried out and who saw it again after the repairs will be good piece of evidence to show as to what changes had been made. The Overseer was such a person and he has deposed on the point." A few lines later the learned Civil Judge stated : "The second transgression, viz., constructing brick wall by removing temporary tin sheets on the east side and the kitchen over-hanging on the street also stands proved by the testimonies of D. W. 2 and D. W. 1." From these extracts, it as clear to me that the learned Civil Judge was accepting the testimony of D. W. 1 Mirza Ahmad Ali. He was quite within his rights in doing so. This finding' of fact has not been shown to be vitiated for any reason. It is, therefore, binding on me.;