Nasim Ali, J.
1. The defendants (the Municipal Commissioners of Dacca) in the suit out of which these two appeals arise made an application under Section 241(3), Bengal Municipal Act (Act 15 of 1932), to the Sub-divisional Officer of Dacca for an order upon the plaintiffs to remove one shade attached to the ground-floor and four shades attached to the four windows in the first floor of their house alleging that they were projections over a public street in the town of Dacca. This application was allowed. Thereupon the plaintiffs instituted the present suit in the Court of the Munsif at Dacca for an injunction restraining the defendants from carrying into effect the order of the Magistrate. There are four steps in front of the four doors of the ground-floor of the plaintiffs' house under the shade attached to the ground-floor. Although no proceedings were taken by the municipality to have these steps removed, the plaintiffs included these steps also in their plaint. The Munsif decreed the suit. The defendants thereupon preferred an appeal to the lower appellate Court. This appeal was dismissed. The defendants preferred a second appeal to this Court. This appeal was heard by Ghose J. and was allowed in part. The injunction upon the defendants restraining them from removing the shades was set aside but the injunction restraining them from removing the four steps was maintained. These two appeals are against this decree of Ghose J. one (L.P. No. 10 of 1939) is by the defendants and the other (L.P. No. 11 of 1939) by the plaintiffs. The material portion of Section 241, Bengal Municipal Act, is in these terms:
(1) When any verandah, platform or other similar structure or any fixture attached to a building so as to form part of the building, whether erected before or after the commencement of this Act, causes a projection, encroachment or obstruction over or on any house, gully or public street or any land vested in the Commissioners they may, by written notice, require the owner or occupier of the building to remove or alter such structure or fixture.
* * * *(3) If the person on whom a notice is issued under Sub-section (1) fails to comply with the requisition within the period specified therein, the Magistrate may, on the application of the Commissioners, order that such structure or fixture be removed or altered, and thereupon the Commissioners may carry into effect the order of the Magistrate, and recover from the owner or occupier of the building the cost thereby incurred:
Provided that if the owner or occupier proves that any such structure or fixture was erected before the District Municipal Improvement Act, 1864, or the District Towns Act, 1868, or the Bengal Municipal Act, 1876, as the case may be, took effect in the municipality or in the case of a municipality, constituted under the Bengal Municipal Act, 1884, in which none of the aforesaid Acts was in force prior to the commencement of that Act, before the date of the constitution of that municipality, or in the case of a municipality constituted after the commencement of this Act, before the date of the constitution of that municipality, the Magistrate shall order reasonable compensation to be paid to any person who suffers damage by the removal or alteration thereof.
In determining the amount of compensation, the value of the land shall not be taken into consideration.
2. Public street as defined in the Act means any street over which the public have a right of way. The case of the plaintiffs is that they have acquired by adverse possession title to the land over which the disputed shades project and hence this land is not a part of a public street and consequently the provisions of Section 241 of the Act are not applicable. On the facts found by the Courts below it cannot be disputed that the plaintiffs have not acquired any title to the land under the shades by adverse possession. At the time when proceedings under Section 241 were instituted, the disputed shades were, therefore, projections over a portion of a public street. The contention of the learned advocate for the plaintiffs is that the plaintiffs had acquired a right to retain the shades by prescription. It appears from the proviso to Section 241 that if a structure or fixture causing projection or encroachment was erected before the dates mentioned therein the owner or occupier is entitled to get some compensation if he suffers any damage by the removal of such structure or fixture. If, however, the structure or fixture causing projection or encroachment was constructed after the dates specified in the proviso there is no provision in the Act for any compensation for the removal of such projection or encroachments. The reason for making this distinction appears to me to be this : if any structure or fixture was constructed over a land before it became a public street within the meaning of the Act, obviously the erection of the structure or fixture was not a public nuisance at the time when it was erected and consequently the owner or occupier is entitled to get damages. If the structure or fixture was erected over the land after it became a part of a public street it would become a public nuisance and by prescription such nuisance cannot be legalised. The shades in question were constructed either before or after the material dates. If they were constructed before the plaintiffs would get compensation. If they were constructed after the material dates they are not entitled to get any compensation. In any view of the case, in view of the facts found and in view of the provisions of Section 241 of the Act, plaintiffs have no right to retain these disputed shades and these shades are liable to be removed under Section 241 of the Act. The decision in this appeal will not in any way affect the right of the plaintiffs if any to get compensation for the removal of the disputed shades under the proviso to Section 241. The appeal of the plaintiffs is, therefore, dismissed with costs.
3. As regards the appeal of the defendants, it appears that the municipality has not yet taken any proceeding under Section 241 to remove the four steps in question. I do not find any reasonable apprehension of any injury to the plaintiffs' alleged right to these steps at the present moment. The plaintiffs' prayer for declaration of their right to maintain these steps and for an injunction to restrain the defendants from taking proceedings for removal of these steps is, therefore, premature. The appeal of the defendants is, therefore, allowed and this suit so far as it relates to these steps is dismissed for want of cause of action. There will be no order as to costs in this appeal.
4. I agree.