Somu Nagiroddy vs Gouru-gari Lingareddi and Others

Chandra Reddy, J.—This is Plaintiff''s Second Appeal. His suit for a declaration that the R marked rastha in the plaint plan is a public pathway and for a mandatory injunction directing the Defendants to remove the constructions S T U v. W and the roofing over the rastha, though decreed by the trial Court, Wcssrdismissed on appeal by the Subordinate Judge of Kufiiool. The Plaintiff owns a house marked A in the plaint plan while Defendants 1 to 3 are owners of a house marked 13.

Defendant 4''s house is opposite to that of Defendants 1 to 3, in the western direction. There is a road running north to south to the east of tine Plaintiff''s house. The houses of Defendants 1 to 3 and Defendant 4 are separated by open space which, according to the Plaintiff, is a part of the public road marked R while the Defendants claim it as their private property.

The suit was resisted by the Defendants on the ground that there is no public road at all running from north to south as shown in the plaint plan, .that the whole space belongs to them and that the Plaintiff has no cause of action against them.

The trial Judge decided that that part of the road marked R which is to the west of the Plaintiffs'' house is a public rastha and that the Defendants were not entitled to put up any structures or obstructions on any part of it. As regards the rest, it was his view that it was a site belonging to the Defendants over which the Plaintiff and the public have acquired a customary right of way.

On appeal, the Subordinate Judge reversed the decision of the District Munsif, expressing the opinion that it was not established that the public had any right of way over the plaint road lie also .thought that the trial Court ought not to have granted any relief in respect of the passage in dispute on the ground of customary right as no such right .was set up in the plaint.

Further it was the view of the Subordinate Judge that the suit was not maintainable for the reason that the consent of the Advpcate-General as required by Section 91, CPC was not obtained. This judgment of the Subordinate Judge is impugned in this Second Appeal on various grounds.

It is first urged that in reaching the conclusion that the Plaintiff has not proved that the public have acquired a right of way, tho Subordinate Judge had overlooked the admissions of D. Ws. 3 and 4 that the Plaintiff and others in the vicinity could pass along the R R rastha to get water from the well marked NNN. This contention of the , Appellant is well-founded.

Apart from the evidence of the Plaintiffs witnesses the admissions of D. Ws. 3 and 4 make out the case of the Plaintiff in regard to the customary right of way over the whole of the passage. The Subordinate Judge refused to give effect to these admissions on the supposition that these witnesses who resided in another part of the village had no means of knowing it. The lower Appellate Court erred in explaining away the admissions in this way, when no attempt was made by tho Defendants either to treat them as hostile witnesses or to elicit something in the re-examination which would indicate that those witnesses were really ignorant of it.

It is far-fctchod to think that merely because the Defendants did not live in the immediate vicinity of this place they had no scope to know whether the public exercised a right of way over this land for the purpose of getting water from the well. Apart j from these admissions, there is a document, Ex. B-l dated 7-6-1884 under which an ancestor of Defendants .1 to 3 purchased the B marked house.

The northern boundary of. this house was described as the public rastha leading to the well new shown as NNN in the plan. It is true that the western boundary given in the document is the house of the present Defendant 4. But the latter boundary f does not conclude the matter against the Plaintiff or in favour of Defendants in so far as the customary right over this plot of land is concerned.

It might be that it was not a part of the public road but it is suggestive of people coming hum the road RR passing along that way to reach the well NNN. The Subordinate Judge failed to give effect to these various considerations and this has vitiate his finding. It follows that the decision of the trial Court in this regard is correct.

The next question is whether failure to plead, customary right is fatal to the suit. It is true die case made in the plaint was that the w passage was a public rastha but it is recited in the plaint that ever sirce the village come into cxktenco the villagers were enjoying the said rastha unint terruptedly, it being an important rastha.

In my judgment, these facts are sufficient toll Mala enable a Court to grant the relief of customary of way if the material on record warrants it. It Is IS t Second A. not absolutely essential that a custom need be set. Against decre up. It is sufficient if the facts which could forward 1953. the foundation of such a claim are stated. As point-IJB (a) Hindu ed out by the Privy Council in - Misra v. Rangalal (1950) 1 Mad LJ 100, it is not necessary that the legal coactions flowing from facts should be pleaded.

If the Plaintiff succeeds in establishing the cause the omission to set it up will not be a bar to the granting of relief if the evidence on record justifies the interence of the existence of such a custom. See - Kommu Venkadu v. Subbaramaiah, 1954 2 mad LJ 24: AIR 1954 AP 54(B).

The last point that calls for consideration is whether Section 91, CPC is a bar to tire suit. The Section runs thus:

In the case of a public nuisance the Advocate-General, or two or more persons having obtained die ''consent in writing of Advocate- General, may institute a suit, though no special damage has been fcaused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.

It is plain that this section comes into play Only when a public nuisance is committed. Thus the operation of tire section should be limited only to a case where the wrong complained of constitutes nuisance I am of opinion that the in ligament of the right of the villagers in regard to pathways or rights of way cannot fall within the ambit of this section. The rule contained in that section is attracted only to the violation of rights of the public over high-roads.

This opinion of mine is supported by two rulings of the Madras High Court - ''Subbama v. Narayanamurthi 1949 1 Mad LJ 56: (AIR 1949 Tad 634) (C) and - Murugesa Mudaly v. Baruda arnagiri Mudaly 1950 2 Mad LJ. 770: (AIR 1951 d 498) (D), ''Bhuloganatham Prllai v. Raja-;opala Pillai 1941 2 Mad LJ 105: (AIR 1941 Mad ip) (E), relied on by the lower Appellate Court and:e Respondent here is not in point. The learned fudge, Leach C. J. and Somayya J, had not considered whether an obstruction caused to a pathway Could amount to a public nuisance within the mean of S. 91, CPC The problem posed there as whether to entitle the Plaintiff to bring an ac-Jon for the removal of obstruction to the road spelal damage should be alleged and proved. This question was not answered because in that Case it as stated that the wall put up by the Defendants Interfered with the enjoyment of the Plaintiff''s house id thus there was special damage. It is seen that case under citation does not express any view tarry to the one expressed by me. The reasons haven by the Subordinate Judge for dismissing the Plaintiffs suit are not valid.

The result is, the appeal is allowed; the Figment and decree under appeal are set aside those of the trial Court restored. The parties bear their own costs throughout. No leave.