R.N. Gurtu, J. - (1.) THIS second appeal arises under the following circumstances: The Plaintiff filed a suit for a perpetual injunction against the Defendant, the Provincial Government of Agra and Oudh, restraining it from getting any portion of the house of the Plaintiff demolished Under Section 133 CrPC.
(2.) THE Plaintiff alleged that he had a house situated in Mohalla Dwarkapuri, that the land of the Municipal Board, Aligarh, covered by the pucca drain immediately adjoined his house and a portion of the land situate on the north of the drain sustained a wall of the house, that the drain and the land under the house and under the wall was claimed by the Defendant but that the Defendant had no title to what it claimed and the Plaintiff's predecessors had been in proprietary and adverse possession thereof for more than 70 years and the Defendant had no right to challenge the constructions of the Plaintiff. The Plaintiff further alleged that the Defendant was threatening to get the house demolished Under Section 133 of the CrPC. The Defendant filed a written statement and admitted that the Plaintiff had got a house in Mohalla Dwarkapuri. It pleaded that the Plaintiff had encroached upon road land without any right or title. It also pleaded that the suit was barred by limitation.
(3.) IT would appear that the real contest between the Plaintiff and the Defendant was whether the constructions encroached upon road land , (by which I understand is meant a public way) or whether the constructions stood on land which belonged to the Plaintiff. That is so far as the land itself is concerned. In regard to the alleged encroachment over the drain, the Plaintiff himself stated that the pucca drain was on the land of the Municipal Board, Aligarh. He did not seem to claim any proprietary right in the drain but he appears to have set up a right of the Municipal Board therein as against the right of the Provincial Government of Agra and Oudh.;