Siddeswara Mudaliar vs Kalmangi Krista Charlu

Muthusami Aiyar, J.—This was a suit to remove an obstruction in a public street at Bellary. There is a main street in that town called.

Kamsala street and a lane runs from at. north to south. Both the appellant and the respondent reside in that lane and there is a well in it near the

house of the former. The respondent and others living in the lane are found to have been using it and getting water from the well at all times, both

day and night, for more than 25 years. In May 1888 the appellant obtained permission; from the Municipal Council at Bellary, the first defendant in

this suit, to build a wall and a gate across a portion of the lane and accordingly erected a wall and a gate so as to obstruct the respondent and

others. from freely using the lane and taking water from the well. The respondent then instituted the present suit to establish his right to use the lane

and to pass to and from the well for the purpose of drawing water and to compel the appellant to remove the wall and the gate recently erected by

him. His case was that the lane was a public street, that the inhabitants of the town who live in it and in the neighbouring streets had a prescriptive

right to use the lane and to draw water from the well at the pleasure, and that the obstruction caused by the appellant in violation of that right put

them to considerable trouble and inconvenience. The. appellant contended on the other hand that the well was situated in his own compound, that

the lane was not a public street, that the well was his own property, and that he erected the wall and the gate on his own ground. He took also the

preliminary objection that the respondent who asserted that the lane was a public street was not entitled to maintain this suit on his own behalf.

Three issues were recorded for decision by the Court of First Instance, and the first was whether the ground enclosed by the appellant was

public property or his private property. The finding is that it belongs to the appellant. The second issue was whether the respondent was entitled to

walk on the ground on his way to draw water from the well enclosed by the Appellant. Both the Courts find from the evidence of user for a period

of 25 or 30 years that the respondent and others have a prescriptive right to do so. The third issue was whether the respondent was entitled to

maintain this suit. The District Munsiff held that the respondent sought to establish his own prescriptive right and not that of [323] any other parties,

and that it was not necessary for him to obtain the permission prescribed by Section 30 of the Code of Civil Procedure, and the Judge concurred

in that opinion. In coming to a finding on the 2nd issue, the District Munsiff observed that the plaintiff (respondent) must go on the ground

mentioned above to get to the said well and to repair the wall and windows, &c, of his house.

With reference to the 2nd issue, the District Judge remarked that he was satisfied upon the evidence that the plaintiff (respondent) established his

right by prescription to the use of the lane at. all times of day and night, at least as far as the plaint well? and that the appellant had no right to block

the lane by a gate or door. He accordingly directed that the new gate"" or door put up by the appellant be removed, and confirmed the decree of

the District Munsiff so far as it allowed the wall to stand on the ground that ;it was substituted for an old mud wall which had long stood there, and

upheld the plaintiff''s right to use the lane as far as the well and to take water from it at his pleasure.

The question argued before us is as to the maintainability of the suit. It is urged, that the lane, at least as far as the well being found to be a public

street and no special damage being alleged and proved, it is not competent to the respondent to maintain this suit on his own behalf, and in support

of the contention, our attention is drawn to the decision of this Court in Adamson v. Arumugam ILR (1886) M. 463 which followed the leading

case on the subject viz., Satkuvalad Kadir v. Ibrahim Agavalad Mirya (1877) ILR 2 B. 457 wherein the question was fully discussed and several

English decisions were cited. There is no doubt that the English rule, viz., no action can be maintained by one person against another for

obstruction to a highway unless special damage is proved, is applicable in India. As observed by my learned colleague, the principle on which this

rule is founded is that of protecting the person causing the obstruction against being harassed by a multiplicity of suits and of providing at the same

time a remedy for the common injury by indictment. 1 only desire to add that the special damage which it is necessary to plead and prove in order

to take a case out of the rule does not necessarily consist in actual pecuniary loss and in a claim to compensation for the same. It is sufficient to

show'' that the party suing has sustained special injury beyond what is sustained by the [324] general public. In Dobson v. Blackmore (1847) 115

E.R. 1554. 9 Q.B. 13 1003 Lord Denman, C.J. explains it as "" a damage brought on the individual complaining, which might perhaps be more

properly styled particular damage, or a special damage more than the rest of Her Majesty''s subjects ordinarily sustain in consequence of the

obstruction, and not that sort of damage only which may or may not ensue from the acts done, but which entitles the plaintiff when it does arise to

specific reparation in the form of damages."" The special injury, however, should not be merely conser quential nor remote as in Bicket v. The,

Metropolitan Railway Co. (1867) L.R. 2 E. and Ir. App. 175 nor should it consist in mere delay in getting to a place as in Winter-bottom v. Derby

(1867) L.R. 2 Ex. Ch. 316. It should be an injury quite distinct from that of the public in general and when such is the case a Court of Equity will

grant an injunction and such relief as may compel the wrong-doer to take active measures to discontinue the nuisance. Satku valad Kadir Satisare

v. Ibrahim Agavalad Mirza Ago ILR (1877) 2 B. 457.

The substantial question then for determination is whether upon the facts found, this case falls under the general rule or forms an exception to it.

The finding that the lane obstructed is a public street as far as the well discloses only a common injury. The finding that the obstruction in the lane

obstructs also the exercise of the right of those living in the lane and near it to take water from the well suggests an injury not special to the

respondent but common to him and to the general public, though the inconvenience arising from it may be felt more by those living near the well

than those living at a distance. There is no averment in the plaint that by deprivation of the use of the well, the beneficial enjoyment of the

respondent''s house is materially interfered with or its value is lowered. There is, however, the observation of the District Munsif that in paragraph

10 of his judgment that the plaintiff must enter and go upon the ground enclosed by the appellant to repair the wall, the windows, &c, of his house,

but there is no averment in the plaint that any right of easement has been disturbed, nor is any relief claimed in respect of such easement. I thought

at first that further enquiry was perhaps desirable to ascertain whether the obstruction in any way interfered with the beneficial enjoyment of the

respondent''s house, but upon further [325] consideration I agree with my learned colleague that we might thereby vary the case disclosed by the

plaint and go beyond the averments in it. The conclusion I come to is that upon the facts found by the Judge there is no special injury such as the

law; requires to sustain the suit. I concur, therefore, in the decree proposed by my learned colleague.

Best, J.

It is contended on behalf of appellant that the suit by plaintiff is not maintainable as the right to use the plaint lane and well is according to his

own showing a public right. In support of this contention reference is made to the ruling of this Court in Adamson v. Arwmugam ILR (1886) M

463 in which it was held that the rule of English law that no action can be maintained by one person against another for obstruction to a highway

without proof of special damage would be enforced in India as a rule of ""equity and good conscience.

A further contention is that if plaintiff claims the right to the use of the well in question as an easement to which he is entitled as occupant of the

house in which he is now living, his suit must fail by reason of his failure to prove that the well has been used by the occupants of this house for a

period of twenty years.

So far as plaintiff claims the right to use the well as occupant of his present house, this claim must be held to be invalid as admittedly he has

resided in this house only for a period of about twelve years and there is no proof or even allegation that the right '' claimed is an easement attached

to this particular house. On the contrary, plaintiff makes up the prescriptive period of 20 years by adding to the period during which he has

occupied his present house the time for which he was the occupant of a neighbouring house. He does this on the ground that the right of using the

well and the lane leading to it belongs to the public of that particular neighbourhood. Such being the case, plaintiff''s suit even though it purports to

be a personal one intended to establish his. individual right is not maintainable in the absence of proof or even allegation of special damage to

himself, over and above the general inconvenience occasioned to the public. The rule in question is applicable to any public right, the reason of the

rule being the avoidance of multiplicity of suits, for, to use the words of Lord [326] Coke, ""if any one man might have action, all men might have

the like.

The Appeals must therefore be allowed, and, both the lower Court''s decisions being set aside, the suit dismissed, but under the circumstances

each party is directed to bear his own costs throughout.