JUDGMENT R.N. Gurtu, J. - This second appeal arises under the following circumstances: The Plaintiff filed a suit for a perpetual injunction against the Defendant, the Provincial Government of Agra and Oudh, restraining it from getting any portion of the house of the Plaintiff demolished u/s 133 CrPC. 2. The Plaintiff alleged that he had a house situated in Mohalla Dwarkapuri, that the land of the Municipal Board, Aligarh, covered by the pucca drain immediately adjoined his house and a portion of the land situate on the north of the drain sustained a wall of the house, that the drain and the land under the house and under the wall was claimed by the Defendant but that the Defendant had no title to what it claimed and the Plaintiff's predecessors had been in proprietary and adverse possession thereof for more than 70 years and the Defendant had no right to challenge the constructions of the Plaintiff. The Plaintiff further alleged that the Defendant was threatening to get the house demolished u/s 133 of the CrPC. 3. The Defendant filed a written statement and admitted that the Plaintiff had got a house in Mohalla Dwarkapuri. It pleaded that the Plaintiff had encroached upon roadland without any right or title. It also pleaded that the suit was barred by limitation. 4. It would appear that the real contest between the Plaintiff and the Defendant was whether the constructions encroached upon roadland, (by which I understand is meant a public way) or whether the constructions stood on land which belonged to the Plaintiff. That is so far as the land itself is concerned. In regard to the alleged encroachment over the drain, the Plaintiff himself stated that the pucca drain was on the land of the Municipal Board, Aligarh. He did not seem to claim any proprietary right in the drain but he appears to have set up a right of the Municipal Board therein as against the right of the Provincial Government of Agra and Oudh. 5. The relief claimed by the Plaintiff was for a perpetual injunction to prevent the Defendant from getting the alleged encrochment demolished u/s 133, Code of Criminal Procedure on the ground that the Defendant was contemplating action. 5. The relief claimed by the Plaintiff was for a perpetual injunction to prevent the Defendant from getting the alleged encrochment demolished u/s 133, Code of Criminal Procedure on the ground that the Defendant was contemplating action. The apprehension under the Code was right because an application was made and at first a preliminary order and then a final order was passed under the Code whereunder the Plaintiff became liable to remove the constructions in dispute. 6. The trial court refused the prayer for injunction, but it granted a declaration that the Plaintiff was the owner of the site of the house in suit, and that the building of the said house did not constitute any encroachment upon the Defendant's land and that the slabs on the public drain did not amount to an encroachment. 7. Upon appeal, the court below has decreed the Plaintiff's suit fully and thus modified the decree of the trial court. The injunction prayed for by the Plaintiff thus stands decreed. 8. The present appeal is by the Defendant and Mr. Dhavan has argued that no injunction can be granted preventing the carrying out of an order of a criminal court. It is certainly correct that no suit can lie to set aside a Magistrate's order passed u/s 133, Code of Criminal Procedure and made absolute u/s 137 of the said Code But while that order cannot be set aside, a declaration could still be given to the Plaintiff in this case in regard to his right in respect of the land over which the house or the wall stands, though no declaration could be given to him in respect of the drain because no right in himself in respect of it is claimed by the Plaintiff. In Chuni Lal v. Ram Kishen Sahu ILR 15 Cal 460 it has been held that an owner of land has a right to bring a suit u/s 42 of the Specific Relief Act against anyone who formally claims the right to use such land as a public road and who thereby has endangered the title of the owner The assertion of the Defendant in respect of the alleged encroached land is clearly that it is a roadland i.e. it is a public way On the other hand, the plintiff has asserted that he is the proprietor of that land. This dispute could be adjudicated upon by a civil court and the fact that an application u/s 136 of the Code of Criminal Procedure was made for the removal of construction over this land would not bar the right of the civil court, as laid down in the case mentioned above, to determine whether the plaintfff's case, that the land which he claims as his own, of whether the Defendant's case, namely, that the land is not the Plaintiff's land but is a public road, is correct. 9. The court below, in my view, however in granting the injunction, as prayed for, has clearly gone wrong. No injunction can be granted to prevent the exercise of powers under the Code of Criminal Procedure or the carrying out of an order of a criminal court passed either u/s 133 or u/s 137 of the CrPC. The proceedings u/s 133 Code of Criminal Procedure in a criminal court are independent proceedings. Their basis is that there has been an unlawful obstruction or a nuisance which requires to be removed in respect of any way, river or channel which is, or which may be, lawfully used by the public. A criminal court has jurisdiction to find whether there is such an obstruction or whether it should be removed or whether the way, river or channel is lawfully used by the public. Its order cannot be interfered with except by way of revision under the Code itself. But a person whose rights are affected can still go to the civil court and claim that the way, river or channel is his private property and is not being used by the public lawfully or does not belong to the public and get a declaration of his rights. Presumably, thereafter he can take that judgment to the Magistrate who would no doubt consider whether in view of that judgment he would still proceed to execute his order u/s 140 of the CrPC. It would be for the Magistrate to make up his mind whether he would give effect to the evil court decree or would still execute the order, passed u/s 137, under the provisions of S. 140 of the Code. It would be for the Magistrate to make up his mind whether he would give effect to the evil court decree or would still execute the order, passed u/s 137, under the provisions of S. 140 of the Code. If he still decides to execute that order u/s 140 of the CrPC, no suit could lie in respect of anything done in good faith under that section and the only remedy which the party would, have, in these circumstances, would be to prove bad faith and file a suit and get damages if he can. In my view, there can be no direct injunction issued by a civil court to prevent the operation of an order passed u/s 133 or u/s 137 of the CrPC. 10. I want to make it perfectly clear that the question of the encroachment of the drain can not be decided in this suit for the Plaintiff does not even allege his ownership thereof and it does not call for a decision in this appeal, noe is this decree to be taken, in any way, to involve the setting aside of the Magistrate's order passed u/s 133 or S. 137, CrPC. 11. In view of what I have said, the orders of the court below, in this case, have got to be modified and, in lieu thereof, a decree in the following terms has to be passed:- The Plaintiff is declared to be the owner of the site over which the house stands as also the owner of the site lying to the north of the Municipal drain on which the Plaintiffs's southern wall stands. The Plaintiff is not entitled to any declaration as to the ownership of the drain, nor is he entitled to any type of injunction. 12. This appeal is, accordingly, allowed in part in the terms indicated above and the parties are directed to bear their own costs of this Court. 13. Both parties are granted leave to file a a special appeal, if they so choose.