JUDGMENT Jenkins, C.J. - This case comes before us by way of second appeal, and the suit out of which it arises is one brought by a house-owner within the town and suburbs of Calcutta against the Municipal Corporation to restrain the Corporation in effect from proceeding under a notice given under sec. 341 of the Calcutta Municipal Act of 1899. The facts are very briefly these. The alleged projection in respect of which an action is said to have been taken under sec.341 is an integral part of a house and for the Corporation it is said that this projection is over a public street. The Plaintiff maintains that, whether the land which this projection overhangs is or is not at the present time a public street, at the time when the projection came into being and a considerable time afterwards, it was his own private land. He further maintains that this projection is not such structure as comes within the operation of sec. 341. The Munsif decided both points in the. Plaintiffs favour, and granted the relief sought, but on appeal the District Judge who viewed the premises came to a different conclusion, though he says his visit to the spot satisfied him that the Corporation was somewhat unreasonable. In the view I take of the facts of the case, the particular projection of which complaint is made cannot, on the facts found, be said to be a fixture attached to a building, so as to form a part of the building, and therefore, it does not, in my opinion come within sec. 341 of the Act, and on this ground, without negative the other contention of the Plaintiff, I think the Plaintiff is entitled to succeed. It is true that an objection has been urged before us that the suit is misconceived in so far as it was brought against the Corporation, and it was contended that it should have been brought against the General Committee. That point is not noticed by either of the lower Courts, and it is not a view to which I am disposed to give effect. The proper decree in the circumstances appears to me to be that we should reverse the decree of the lower Appellate Court and grant an injunction restraining the Corporation from taking any proceedings under sec. That point is not noticed by either of the lower Courts, and it is not a view to which I am disposed to give effect. The proper decree in the circumstances appears to me to be that we should reverse the decree of the lower Appellate Court and grant an injunction restraining the Corporation from taking any proceedings under sec. 341 and under the order of the Magistrate passed on the 4th December 1908. 2. The Defendant must pay the costs of the Plaintiff in all the Courts including the costs of this appeal. Coxe, J. I agree.