Gokul Prasad, J.
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 16th 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 20th November 1918. 'The plaintiff thereupon gave the Board a second notice on the 10th 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.
4. The suit as it was fought out in the Courts below was on the question whether the lane if dispute was the private properly to the plaintiff or a public lane. The learned Munsif found that, although the lane was closed at one end, the plaintiff was not the owner thereof. In the result he dismissed the suit. The learned Judge, after considering the very old title-deeds (one of them is nearly 150 years old) produced by the plaintiff came to the conclusion that the plaintiff was the owner of the lane. He further came to the conclusion that the defendant Municipal Beard had failed to prove that this alley or lane had been levelled, paved, metalled or repaired by the Board. The mere fact that it has been cleaned by the Municipal Board would not constitute it a public street. After discussing the meaning of the words 'public street' as used in the Act lie held in favour of 1ihe plaintiff and granted the declaration asked for. The learned Judge has also found that 'except for the plaintiff no member of the public can have any occasion to use the alley except those going to that house.' As regards the own of the only Other house Which has a door opening on to this the judge, after finding that the lane belongs to the plaintiff, goes on to say, 'this being so, would conclude that the owners of the house beyond had or might be able to substantiate a fight of easement over this alley. I would not consider that this was a public street or one over which the Municipal Board could exercise the authority given to it under Section 116 of the Municipal Act.' This being so, the plaintiff has, in my opinion, established his claim. The Municipal Board; Comes here in second appeal. The first plea urged on its be shall by the learned Vakil is, that this lane comes within the meaning of the words ' public street' as denned in Section 2 of Local Act II of 1916. His first contention was that as there was underground sewer under this lane, the lane was one which wares sewered by the Municipality and hence it does fall within the meaning of public street. I cannot accede to this contention. The underground sewer is one of the drains of the times of the Muhamma San Emperors. The mere fact that it does exist under the street could not in any way make the street one sewered out of Municipal funds. A public street includes the drains and gutters on either side; but, in my opinion, it does not and cannot include any underground sewers. Such sewers are very common in Benares and of then even go under houses. If the mere existence of sewers would make a public street, the majority of houses in Benares would conle under that category. On the findings of the lower Appellate Court, which are findings of fact, this appears to be a lane over which the public as such have no right to pass along, arid, therefore, it would not come within the meaning of ''public street' as is contained in Section 2 of Local Act II of 1916. Section 116 of the same Act cannot help the appellant, because Clause (g) Of that section deals with only-public streets, the pavements, stones and other materials which vest in the Municipality, and as this is not shown to be a public street it did not vest in the Municipality. The Municipality had no right to resist the plaintiff's claim: The plaintiff-respondent's claim has been rightly decreed. I, therefore, dismiss this appeal with costs, including in this Court-fees on the higher scale.