Hukam, Singh vs Mangat Ram

G.C. Garg, J.

The plaintiffs filed a suit for mandatory injuction, directing the defendant to demolish or remove the obstructions caused by him on a public way bearing Khasra No. 9210, on the allegation that they had constructed mangers, verandah and by placing straw stock on the same. The plaintiffs had been using the said public way for access to their fields and by the action of the defendant an obstruction has been caused in the user of the path to which the defendant has no right. Plaintiffs also prayed for the issuance of a prohibitory injunction against the defendant restraining him not to obstruct the user of the path.

The suit was contested by the defendant. The allegations that he had made construction or encroached upon the site of the path were denied and pleaded that the plaint did not disclose any cause of action.

The learned trial Judge after considering the evidence on the record decreed the suit of the plaintiffs and directed the defendant to demolish or remove the encroachment/construction over the site measuring 4 Karams X 2 Karams on the path i.e. Khasra No. 9210 as is dear from the site plan C.2. The defendant was further restrained from making any encroachment and causing obstruction on the path way.

On appeal, the learned Additional District Judge reversed the finding of the trial Court under issue No. 1 to the effect that the plaintiffs could not succeed without proving special damage. The report of the Local Commissioner was also not accepted on the ground that no notice had been served on the appellant before making the inspection and that the measurements had not been taken from pacca points. Appeal was consequently accepted, the judgment and the decree of the trial Court was set aside. It is against this judgment and decree of the lower Appellate Court that the present appeal has been filed.

The learned counsel for the appellant has contended that it was not necessary for the plaintiff to prove special damage in respect of an encroachment on a thoroughfare and that the question of special damage would arise only in respect of a public nuisance. He further submits that there is an encroachment made by the defendant on the thoroughfare and thus the plaintiffs were entitled to succeed without showing that they had suffered some special damage entitling them to the relief. His submission is that the judgment in the case of Arya Prithinidhi Sabha v. Lal Chand and others 1964 PLR 670 is not applicable to the facts of the present case. In support of his submission, the learned counsel has referred to Ram Parkash Manchanda v. Amin Chand and others, 1983(2) All India Land Laws Reporter 130 for the proposition that suit can be filed for the removal of the obstruction over a street and that special damage need not be proved and that breach of individual right over a public street was enough to maintain a suit. He also relied upon Municipal Committee, Moga v. Indermal, 1982 All India Land Laws Reporter 60, wherein it was held that no special damage be shown when the other side is making projection on the common street. In Bani Singh v. Rattan Singh, 1986 RRR 2 (P&H) : 1986 PLJ 577, B. S. Yadav, J. even after noticing the judgment of the Division Bench in Arya Prithinidhi Sabha Punjab''s case (supra) held that in a case of encroachment on village pathway suit for mandatory injunction requiring the defendants to remove construction and not to make further encroachment was competent and that proof of special damage in a situation of this type was unnecessary. The learned Judge held that a village pathyway was not public highway and special damage is not required to be proved in a suit removal of obstruction on village pathway.

The learned counsel appearing for the respondent placed strong reliance on Arya Prithinidhi Sabha''s case (supra) to contend that suit will not lie unless the plaintiff proves some special damage entitling him to relief and that in the present case the plaintiffs failed to prove special damage and, therefore, lower Appellate Court was right in holding that in the absence of any special damage the plaintiffs were not entitled to succeed. He also relied upon Sada Sukh and others v. Sohan Lal and others, 1977 PLJ 342 for the aforesaid proposition.

In my view, the provisions of Section 91 of the Code of Civil Procedure are not applicable to the facts of the present case. It is in the case of public nuisance or other wrongful act affecting or likely to affect the public, in a suit for declaration and induction, permission of the Advocate General is necessary. The present is not a case of public nuisance but is only a suit for removal of encroachment on a pathway.

B.S. Yadav, J. in Bani Singh v. Rattan Singh (supra) has relied upon the following observations from Sri Ram Singh v. Patti, AIR 1968 ALL 18;

"A village pathway is not a pubic highway and no special damage need be proved in a suit; for removal of an obstruction to the former. Wrongful obstruction by unauthorised construction amounts to infringements of the rights which the residents of the village enjoyed, and these infringements cause them special damage.

Even if the plaintiff loosely described the passage as public pathway and even if the passage running through the village was considered as a part of the longer route extending beyond its precincts it is so far as the village itself is concerned, only a village path, in which residents of the village and neighbored are directly interested. The residents of the village can claim special amenities not open to those others in respect of that part of the passage which ran from one end of the village to the other."

The learned Judge then concluded that Section 91 of the Code of Civil Procedure is not attracted as it was not a public road and that the village pathway cannot be said to be public highway and it was not necessary for the plaintiff to prove any special damage caused to him. I am in respectful agreement with the observation of Yadav, J. in the aforesaid case. I thus hold that in the facts and circumstances of this case, the plaintiffs were not required to prove special damage for seeking the relief of removal of obstruction from a village path. The judgment of the Division Bench in Arya Prithinidhi Sabha''s case (supra), in my view is not applicable to the facts of the present case, as even in that case, it was held that it was open to the plaintiff to maintain his suit if he could prove that there was hindrance or obstruction to his right to use the thoroughfare or he could show that be has suffered some special damage entitling him to the relief. Thus special damage was not required to be proved in all cases before getting the relief.

The learned counsel for the appellant next contended that the learned Additional District Judge has again erred in rejecting the report of the Local Commissioner on the ground that a notice had not been served on the defendant and secondly, that there is no mention that measurement had been taken from G.T. Road which was a pacca point. The learned counsel further submitted that notice had been issued by the Local Commissioner but the defendant refused to sign the same. He further submitted that while appearing as a witness he stated that his son was working in the fields and was present when the Local Commissioner went for site inspection and thus it could not be said that the defendant had no notice of the visit of the Local Commissioner. Regarding pacca point, the learned counsel submitted that the Local Commissioner clearly stated that there was no pacca point except the G.T. Road within a range of 3 to 4 miles and under these circumstances, the report could not be rejected on that ground when the Local Commissioner stated that he took G.T Road as the pacca point.

I have gone through the report of the Local Commissioner as also the evidence produced on the record in that behalf. It is true that the Local Commissioner has not referred to the fact in the report that he took measurement by keeping in view the G.T. Road as a pacca point though in his statement while appearing as a witness, he stated so, but that fact alone is not enough to ignore the report of the Local Commissioner, especially when the Local Commissioner has been examined as a witness and he has stated that G.T. Road was taken as the pacca point for measurements. It is admitted that there was no other pacca point available for taking measurements. The Local Commissioner has given detail in his report for taking the measurement and no fault can be found therewith.

As regards service of notice, I find force in the contention of the counsel for the appellant. In case the defendant had not been served with a notice or he had not refused to accept notice, he would have immediately requested the Court to ask the Local Commissioner to visit the spot again in his presence which he failed to do so. I, therefore, conclude that the defendant was fully aware about the time and date of the visit of the Local Commissioner and the report of the Local Commissioner could not be set aside on that ground and a ground seems to have been coined to get rid of the report which was not favourable to him. The son of the defendant was present when the Local Commissioner took measurements and did not object to the same.

The learned counsel for the respondent has not been able to satisfy me that the report of the Local Commissioner deserves to be set aside only on the grounds indicated above. He has not been able to bring out anything else for setting aside the report of the Local Commissioner. He only contended that even after the suit of the plaintiffs had been dismissed for removal of the encroachment on the path, the Gram Panchayat would have certainly taken proceedings for removal of the encroachment in case there had been any path and since the Panchayat has not taken the proceedings for removal of the encroachment, it apparently shows that there was no encroachment and the report of the Local Commissioner was wrong. I do not agree with this contention of learned counsel for the respondent.

In view of the findings recorded above that the plaintiffs were not required to prove special damage for removal of encroachment on a village path which they had a right to use and that the report of the Local Commissioner was illegally rejected I allow the appeal, set aside the judgment and decree of the lower Appellate Court and restore that of the trial Court. In the facts of this case, there will be no order as to costs.