JUDGMENT

Ziaul Hasan, J - This is a plaintiff's second appeal against an appellate decree of the learned Sessions and Civil Judge, Lucknow upholding the dismissal of the appellant's suit against the Municipal Board, Lucknow, and Bishambhar Nath, respondent 1. The facts are that on 19th September 1934, the Municipal Board of Lucknow issued a notice to the appellant under Section 267, U.P. Municipalities Act, requiring him to comply with certain directions in regard to the latrine of his house. One of the directions was that the external wall of the latrine should have for purposes of ventilation an opening up to three square feet. The appellant carried out certain alterations in the latrine and also opened a door in the latrine towards the public road. Thereupon a notice under Section 186 of the Act was served on him requiring him to close the unauthorized door of the latrine. The appellant objected to this notice and the Building Committee of the Municipal Board first disallowed those objections but later on, on 9th August 1935, accepted them and cancelled the notice. It was then that respondent 1, who is a neighbour of the plaintiff-appellant, came on the scene and appealed to the District Magistrate against the decision of the Board. His case was that the door in the latrine of the appellant's house was a public nuisance. The District Magistrate made a local inspection and came to the conclusion that the door must be closed in consideration of public health. He therefore set aside the Board's order and directed that the door of the latrine constructed by the present appellant must be bricked up.

2. The suit which has given rise to this appeal was brought by the plaintiff against respondent 1 as well as the Municipal Board for a declaration that the appeal of respondent 1 before the District Magistrate was incompetent and the orders passed by the District Magistrate were ultra vires and also prayed for a permanent injunction restraining both the defendants from interfering with the latrine of his house as it existed. The suit was contested by both the defendants but the learned trial Court framed and decided the following as a preliminary issue in the case: "Is the suit not maintainable as alleged by the defendants' counsel in the oral pleadings ?" The learned Munsif held that the suit was barred under the provisions of Sections 318 and 321, Municipalities Act, and dismissed it. The plaintiff appealed and the learned Sessions and Civil Judge dismissed the appeal concurring in the view that the suit was barred by Section 321 of the Act.

3. The learned Counsel for the appellant argues in the first place that the notice under Section 186 issued by the Municipal Board was illegal and in the second place that the suit is not barred by the provisions of Section 321. With regard to the first portion of his argument he contends that the door having been made for purposes of ventilation in compliance with the Board's notice under Section 267 cannot be deemed to be an unauthorized construction and that therefore the Municipal Board could not legally issue to him a notice under Section 186. I am unable to accept this argument. In the first place this position does not appear to have been taken up ever before and there is nothing to show that in his objections ad dressed to the Municipal Board he contested the Board's right to issue the notice of 24th September 1934, under Section 186. In the second place the door in question which opens on to the public street cannot be taken to have been made in compliance with the Board's requisition for providing the latrine with a ventilator of three square feet. For the second part of his argument, the learned Counsel relies on the cases in Municipal Board, Moradabad v. Habib Ullah (1939) 26 AIR All 383, Mahadeo Prasad v. Jamila Khatoon (1930) 17 AIR Oudh 204 and Abdul Qayum Khan v. City Board Mussoorie AIR 1931 All 147. The principle laid down in the first of these cases does not in my opinion app