JUDGMENT

Walmsley, J.

The suit from which this appeal arises was instituted by two Hindu gentlemen with the permission of the Advocate. General in regard to a piece of land which they described as a public highway, and the relief for which they asked is in the terms of form No. 31 in Appendix A of the Civil Procedure Code. The defendant, now appellant, is a Marwari who has built a temple on land immediately adjoining the strip which the plaintiffs say is a public highway.

2. The learned Subordinate Judge in the first Court found that the plaintiffs had proved their case, and granted them a decree, and this decision was confirmed by the learned District Judge in appeal.

3. The first argument pressed in support of the appeal is that the plaintiffs could not sue u/s 91, Civil Procedure Code, because the land lies within the area of the Calcutta Municipality and reference is made, to Section 336 of the Calcutta Municipal Act which declares that: "All public streets * * * including the soil * * * shall rest in and belong to the Corporation."

4. The defendant has no authority to quote in support of this argument and we have to read the two sections together, and consider whether Section 336 o