1. This is a Letters Patent appeal by the defendants against a judgment of a learned single Judge of this Court, finding in favour of the plaintiff in regard to the claim of the plaintiff for the removal of a drain made by defendant across a courtyard on which the houses of the parties abut. The drain was made with permission from the Municipal Board of Meerut. The courtyard is connected with a road, and the finding of the lower appellate Court is:
Once this courtyard belonged to the plaintiff, but in 1910 the Municipal Board of Meerut paved it out of Municipal funds and since then it became a public street,
I hold that the plaintiff is not now the owner of this lane, but its proprietorship is now vested at least since 1910 with the Municipal Board of Meerut.
2. Both the lower Courts dismissed the suit of the plaintiffs, but the learned single Judge of this Court has found in favour of the plaintiff in regard to this drain. He has arrived at that finding on a consideration of the definition of street. In the Municipalities Act (Act 2 of 1916) the definition of public street is as follows:
Public street means a street (a) which is declared a public street by the Board under the provisions of Section 221, or (b) which with the consent, express or implied, of the owner, of the land comprising the street has been leveled, paved, metalled, channelled, sewered or repaired out of the Municipal or other public funds.
3. The facts found in the present case are that in 1910, the Municipal Board paved this yard. There is an admission of a mukhtariam of the plaintiff in an application which states that the lane was paved by the municipality and that in his belief it was municipal property. There is also oral evidence which was accepted by the lower appellate Court that from 1914 the courtyard was swept by the municipal sweepers. We consider that these circumstances show the implied consent of the owner of the land to the paving of this courtyard in 1910 by the Municipal Board. Accordingly it would come within the definition of public street. It was argued that the definition 'of street is different in Section 3(4), Act 1 of 1900. It is true that the criteria as regards paving, etc., contained in Section 2(19)(b), Act 2 of 1916, do not find a place in the earlier definition, but even if that is so, we consider that when the plaintiff brought his suit in 1923 we must have regard to the definition contained in the Act then in force, Act 2 of 1916. That Act defines a public street as a street which has been paved out of municipal funds with the consent, express or implied, of the owner. Accordingly, at the time the plaintiff bought this courtyard, it was a public street within the meaning of the Municipalities Act then in force.
4. A further question was raised in appeal, that the plaintiff had suffered special damage. This is no doubt contained in ground 6 of the second appeal, but the plaintiff did not claim that the drain was especially injurious to him in his plaint or in his grounds of appeal in the lower appellate Court. In the grounds of appeal to the lower appellate Court it was stated that it caused a serious obstacle to the plaintiff and the case for the plaintiff before the Court of first instance on which issue 2 was framed was:
Does the defendants' drain cause any inconvenience to the plaintiff in taking out their carriage over the disputed land on the case of their house
5. The finding of fact of the lower appellate Court on this point was:
The nala which was made by the respondent, is, I am told, a covered one and no difficulty can be experienced by the plaintiff in getting his carriage pass over it.
6. We therefore consider that the matter of special damage is concluded in favour of the defendant by this finding of fact. We may also add that even if the land were the land of the plaintiff, the Municipal Board under Section 193(1) Act 2 of 1916 has power to enable the defendant to make a drain across the land of the plaintiff. The rights of the plaintiff under that section are limited to making an objection to the Board. If the Board neglected to give the plaintiff a notice, that does not give him the right to bring a suit against the defendant, but his rights are merely limited to the appeal allowed by the Municipalities Act.
7. Accordingly, for the reasons given above, we allow this Letters Patent appeal and we dismiss the suit of the plaintiff with costs in all Courts.