Ramabrahma Sastri and Others vs Lakshmi Narasimham

Viswanatha Sastry, J.—There was a prolonged argument in this Second Appeal over a small dispute between brOrs. who live in a village and who have bending since 1927 about their rights over a blind lane, marked C and CI in the plan filed with the plaint. The houses of the brOrs. face this lane at one end.

In O. S. No. 287 of 1927 the Plaintiff obtained a permanent injunction restraining the Defendants from obstructing the passage of the Plaintiff, his men, carts and cattle through the lane ''C CI'' to his house, the gate of whose compound is A4 in the plan and a mandatory injunction directing the Defendants to remove the obstruction put up by them preventing the passage of the Plaintiff, his men, cattle and carts through the gate A4 into the lane (C CI).

The finding of the Courts in that case was, and in the present case is that the lane) is a village pathway though it is only the residents of the few houses that open into the lane ''G CI'' that have any need to use the pathway. According to the Plaintiff, Defendant 1 recently constructed the pials C-2 and C-3 in front of his house encroaching upon the lane ''C C1'' obstructing the free passage of bullock carts through the lane ''O 01'' to the Plaintiff''s house.

The Defendants'' plea was, that the pials had been in existence for a long time and were recently repaired and improved and that even if there was an encroachment on a portion of the lane, the Plaintiff did not suffer any special injury thereby. The Defendants also pleaded that the suit was not maintainable for want of sanction of the Advocate Gene-remedy of the Plaintiff was by way of execution of the decree in O. S, No. 287 of 1927.

The trial Court dismissed the suit holding that the lane was a public highway, that the Plaintiff''s complaint was that the Defendant''s action constituted a public nuisance, that there was no proof of special damage to the Plaintiff and that the suit was unsustainable in view of Section 91, Code of CPC The lower Appellate Court, found that the construction of the pials was repent, that the pials encroached upon the-lane and rendered it. difficult for double bullock carts to turn, into the compound of the Plaintiffs house.

Following the decision of the Madras High Court in - S.K. Murugesa Mudaly Vs. Baruda Arunagiri Mudaly and Others, the lower appellate Court found that the infringement of the right of way of the residents over the suit lane could be prevented at the instance of (lie villagers affected without proof of special damage and without complying with Section 91 Code of Code of Civil Procedure

Sri K.B. Krishna Murthy contended that the decision of the lower Appellate Court was erroneous and that S.K. Murugesa Mudaly Vs. Baruda Arunagiri Mudaly and Others, , - ''Subbamma v. Narayana Murti''. 1949-1 Mad LJ 956: (AIR 1949 Mad 634) (B), and - Munusami Chetti and Others Vs. Periya Kuppusami Chetti and Others, , all of them being decisions of single Judges, were wrongly given. lie argued that the lane was a highway that the fact that it was situated in a village did not make it any the; less a highway, that there was no special damage to the Plaintiff caused by the pials erected by the Defendants and that the suit was unsustainable. Reference was made to the decisions of the several High Courts in support of his contention.

The questions that call for an answer are whether the act complained of is a public nuisance and if it falls under the former category, whether the Plaintiff has suffered such damage as entitles him to sue without sanction u/s 91, Code of Civil Procedure.

Section 91, to quote its heading, deals with "suits relating to public matters. that is to say, suits brought to vindicate a public right. An obstruction to a public thoroughfare or public street by a construction raised on any part of it is a public nuisance. The fact that the encroachment still leaves a width equal to the narrowest portion of the road .or street as in the present case, does not make any the less a public nuisance.

If the lane in question is a highway as contended by the Appellant, the act of the Defendants in encroaching upon the lane by constructing pials over it would be a public nuisance and the only question then would be whether the Plaintiff has proved special damage, that is to say, damage beyond what is suffered by him in common with other persons affected by the nuisance.

In - ''Manzur Hasan v. Muhammad Zaman ILR 47 All 151: (AIR 1925 P. C. 30) (D), decided in 1924 the Judicial Committee held that in India there is right for any community to conduct a religious procession through a public street so as not to interfere with the ordinary use of the street by the public and a civil suit lies for a declaration of such right against those interfering with its exercise.

This decision of the Judicial Committee was interpreted by Wadsworth J. in Munusami Chetti and Others Vs. Periya Kuppusami Chetti and Others, , as establishing that the rule requiring proof of special damage where a member of the public sues for removal of an obstruction to a public way does not apply to India and that the earlier decisions of the Indian High Courts to the contrary were not good law.

A similar opinion was expressed by Jack J., though obiter, in - Mandakinee Debee Vs. Basantakumaree Dabee, and by the Chief Justice and Din Mohammad J., in - "Municipal Committee Delhi v. Mohammed Ibrahim, ILR 16 Lah 517: (AIR 1935 Lah 196) (F) Horwill, J., in Kella Peda Appayya and Others Vs. Lanka Narasimhalu and Others, following the earlier Madras decisions decided that unless special damage was proved the only manner in which a common nuisance could be abated was by a suit u/s 91 Code of Civil Procedure.

Wadsworth J., observed that Ilorwill J., had not noticed the decision of the Judicial Committee or of the other cases cited above. In - Bhuloganatham Pillai and Others Vs. Rajagopala Pillai and Another, , a Division Bench of the Madras High Court (Leach C. J. and Somayya J.) without overruling Wadsworth J., assumed or implietlly decided mat special damage was necessary to entitle a person to sue in respect of a public nuisance without conforming to 8. 91, CPC and directed an amendment of the plaint so as to include a plea of special damage. In 1949 1 Mad LJ 56: (AIR 1949 Mad 634) (B), Satyanarayana Bao J, followed the decision of Wadsworth J., and the Calcutta and Lahore cases cited above and dissented from - Surendra Kumar Basu Vs. District Board and Another, , and - Choudhury Bibhuti Narayan Singh and Others Vs. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur, . Satyanarayana Rao J. held that it was open to an individual member of tire public to maintain a suit for removal of obstruction to a public-highway which constituted a public nuisance without? proof of special damage and without the sanction of the Advocate General u/s 91, Code of civil Procedure.

Relying on the observations of Wilson J., in -- ''Chunilnl v. Ramkrishen Sabu'', ILR 15 Cal 460 (FB) (K) the learned Judge was further of the opinion that a village pathway ''cannot be treated and raised to the dignity of a public highway'', that an obstruction to such a pathway was not a public nuisance, and that it was open to some of the residents of the village to sue on behalf of themselves and the other villagers with the permission of the Court under Order 1 Rule 8, CPC even though no special damage has been caused.

Reference was also made to several decisions of the Patna High Court, four of. them being those of wort J. Raghavarao J., in S.K. Murugesa Mudaly Vs. Baruda Arunagiri Mudaly and Others, followed the opinion of Satyanarayana Rao J., and decided that infringement of the rights of the Respondents of a village in respect of a public street did not constitute a public nuisance and could be sued upon by any member of the public who suffers from the wrong complained of without the sanction of the Advocate General u/s 91, CPC or the permission of the Court under Order 1 Rule 8, Code of Civil Procedure.

I do not propose to refer individually to. the several decisions of the Calcutta and Patna High Courts which were cited by the Appellant''s learned Advocate The discussion has, to some extent, been obscured by a classification of roadways or pathways into urban and rural, private, quasi-public and public, and by treating village roads and pathways as standing on a separate footing from roads and street in urban areas and by assuming that there may be more easy civil remedies with respect to infringement of rights in respect of village roads than in respect of highways.

A road is either public or private. A road or a street whose user is limited to the inhabitants of a particular village or people who visit them on business or other wise is not a public road. A public highway is dedicated not to a limited section of the public but for all subjects, that is to say, the public at large. A road running through a village is in one sense a village road but it may nevertheless be a highway if it has been dedicated to the public at large as in the case of trunk roads.

I am humbly of the opinion that apart from Section 91, CPC and in conformity with its provisions, no action can be maintained by an individual against Anr. for obstruction to a public highway without proof of special damage. This rule is found-led on adequate reasons of public policy that a man who may have committed some public injury shall not be harassed by innumerable actions by persons who have not sustained any damage or injury peculiar to themselves. It had been enforced by Indian Courts as a rule of justice, equity and good conscience till 1924 and in my judgment has not been abrogated by the decision of the Privy Council in AIR 1925 36 (Privy Council) .

The ratio decidendi of the case before the Judicial Committee as well as of the cases in - ''Raslingappa v. Dharmappa ILU 34 Bom 571 (L) and - ''Velan Pakkiri v. Subbavmi ILR 42 Mad 271: (AIR 1919 Mad 674) (FB) (M) was that the Defendants die members of a particular section of the community had no right to obstruct the legitimate user of a public street or road by the members of Anr. section of the community and that such obstruction which aimed at preventing only a particular class of persons from using the highway in a particular manner legitimately open to them did not amount to a public nuisance that is to say to a wrong which caused damage, annoyance or injury to the public at large.

The Judicial Committee approved of the Madras cases which had applied the rule of special damage where the obstruction on the highway amounted to a public nuisance. I am in respectful Agreement with the decision of B.K. Mukerjea and Sen JT.. in Surendra Kumar Basu Vs. District Board and Another, which considers the earlier decisions on the question. See also Choudhury Bibhuti Narayan Singh and Others Vs. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur, .

In the present case the lane, ''C-C1'' is, as already stated, a short and blind lane on which abut a few houses not more than three, on which the Plaintiff''s house is the last. The house of the Defendants is next to die Plaintiff''s and the two houses form a rectangular block. The obstruction by the construction of a pail on the lane in front of the Defendant''s house interferes with the free passage of double bullock carts through the lane into die compound of the Plaintiff''s house.

It might be possible the bulls are unyoked and the cart is drawn by men carefully and with mathematical precision, to lead the cart into the compound of the Plaintiff''s house. To compel the Plaintiff to do so would be putting him to trouble and risk and is an injury which is special to the Plaintiff, not shared by the other owners of houses abutting on, the lane.

Special damage does not mean serious damage in the sense of irreparable loss but damage affecting the Plaintiff individually or Plaintiff to the Plaintiff or damage beyond what is suffered by him in common with the owners of other houses opening into the lane. Regard being had to the peculiar situation of the Plaintiff''s house at die end of the land and at right angles to did house of the Defendants the extreme difficulty if not impossibility of taking bullock carts into the Plaintiff''s compound by reason of the encroachment and construction of pials by the Defendant constitutes special damage.

I am also of the opinion that the lane is not a public highway but serves as a passage only for the residents of the few houses opening into the lane, ''C-C1,'' and the obstruction caused by the Defendants is not a public nuisance within the meaning of Section 91, CPC See - Mt. Ram Kali and Another Vs. Munna Lal and Others, - Dalgobinda Mahatha and Others Vs. Khatu Mahatha and Others, , - ''Dashrathi Mahto v. Narain Mahto'', AIR 1941 Fat 249 (P).

The public in general do not use the lane as a pathway but only die residents of a small portion of the village of whom Plaintiff is one. The lane Small along been used not only by pedestrians but as-a passage for bullock carts of the residents of the locality.

The last objection that the suit is not maintainable and that the remedy of the Plaintiff was only by way of execution was not raised in the grounds of appeal and is also untenable. The obstruction to the right of way complained of in the present suit was not in existence at die time of die prior suit O. S. No. 287 of 1927 and was a new one which was put up shortly before the present suit.

Order 21 Rule 32 (5), CPC is applicable to the execution of decrees for mandatory injunctions. If, as in die present case, a prohibitory injunction is disobeyed by a fresh construction causing ob striation to a right of way a fresh cause of action arises for which the remedy has to be sought in a suit for removal of the obstruction. See - Nari Chinnabba Chetty Vs. E. Chengalroya Chetty and Others, , - Hem Chandra Naskar and Another Vs. Narendra Nath Bose and Others, , - Angad and Others Vs. Madho Ram and Others, .

I do not consider it necessary to refer to die earlier cases. The present suit is one for a mandatory injunction for removal of die new obstruction and is therefore maintainable.

For these reasons, I hold that the Second Appeal fails and should be dismissed with costs. No leave.