1. This is a plaintiffs second appeal in a suit for removal of a construction made on 8 sq. yards of land of the ‘patri’ of the road in front of the plaintiffs' house. The Municipal Board, Bilandshahr, is the first defendant and the second defendant is the person who has raised the constructions sought to be removed. The suit has been dismissed by bath the courts below. Hence, the second appeal.

2. The plaintiffs came to court with the allegations that they have a single storeyed ‘Pacca’ house on plot No. 285 abutting on the police-line road at Bulandshahr; that the second defendant had also filed a suit No. 543 of 1964 in the court of 1st Additional Munsif, Bulandshahr, against the present plaintiffs in which she had obtained an interim injunction against them and under the cover of that injunction, she had erected the two storeyed house on some 8 sq. yards of land belonging to the plaintiffs and some 27.7/9 sq. yds. of land in front thereof on the road patri which the defendant Municipal Board had purported to let out to the second defendant under a resolution dated 29th Nov. 1961. It was pleaded that the defendant Municipal Board had no right to let out the land forming part of road patri to the second defendant and the second defendant had by raising a construction thereon narrowed the road by which the plaintiffs were specially aggrieved inasmuch as they had their house at that very place abutting on the road. It was pleaded that the plaintiffs had suffered special damages. They even claimed a decree for damages in the sum of Rs. 100/- for the loss suffered by them. It appears that the ‘Patta’ granted by the defendant-Municipal Board to the second defendant was later on cancelled. The plaintiffs claimed the relief of demolition of the construction on the road patri as also on the 8 sq. yards of land claimed by them to be theirs, and for possession over that 8 sq. yards of land along with the damages in the sum of Rs. 100. Both the defendants contested the suit. The defendant-Municipal Board pleaded that 27.7/9 sq. yards of land had validly been let out to the second defendant by a registered ‘Patta’ dated 5th August, 1964, under the Board's resolution dated 29th Nov., 1961, with the permission of the District Magistrate which was obtained on 28th April, 1964. The second defendant also claimed on the basis of the said ‘Patta’ and pleaded that no part of the land occupied by her belonged to the plaintiff and further that she did not remove any flooring; that there was no door of the plaintiffs' house opening on the road in question and it was only out of enmity that the plaintiffs had filed the suit. The trial Court framed as many as seven issues. On issue No. 2, it held that the plaintiffs are not the owners of the 8 sq. yards of land shown by the letters ‘ABLG’ on the plaint map; on issue No. 6 that the land in suit is ‘nazul’ land; on issues Nos. 1, 3 and 7 that the defendant Municipal Board had a right to grant ‘Patta’ of the land; that there was no evidence to show that the ‘Patta’ had been cancelled, and at any rate, the ‘Patta’ having been cancelled, according to the plaintiffs, after the completion of the constructions, they could not be demolished because of the doctrine of factum valet; and that the plaintiffs did not suffer any special damage by reason of the disputed constructions and had, therefore, no right to maintain the suit. No arguments were addressed before the trial Court on issue No. 4. Even so, the trial Court decided the issue which was whether the plaintiffs had any cause of action against the defendants in the negative. In the result as already noticed above, the trial Court dismissed the suit.

3. Before the lower appellate Court, the first point which was raised for its determination was whether the plaintiffs are owners of any part of the land in suit, the reference being to the 8 sq. yards of land, shown by the letters ‘ABLG’ on the plaint map, claimed by the plaintiffs to be theirs. This point was decided against the plaintiffs and that finding has not been challenged before me as it is a finding of fact based on appraisal of the evidence on record. The second point raised for determination before the lower appellate Court was whether the plaintiffs can seek demolition of the construction even if they are net owners of any part of the land in dispute. It was contended for the plaintiffs that they had suffered special damages and are entitled to an opening on the road side and the constructions had been raised by a person who had no right to do so. The lower appellate Court observed that the Municipal Board was entrusted with the management of the land and had in exercise of that right let it out to the second defendant and that it was not a case in which the demolition might be sought on the basis that the constructions were a public nuisance. It observed that if the case would have been of construction on a public road be person who had no right then the question would have arisen whether an individual can seek the removal of the nuisance. However, since the constructions were raised with the permission of the defendant-Municipal Board, they could not be regarded a nuisance inasmuch as the rights of the defendant-Municipal Board to use the land lying on the side of the road could not be challenged. The lower appellate Court then proceeded to find that the plaintiffs did not have a door opening on the side of the road in question. It was urged for the plaintiffs that there was no convincing evidence to show that the land was ‘nazul’ land but in the opinion of the lower appellate Court, the point was not material because the plaintiffs had failed to prove their own title and that being so, the title of the defendant was not relevant.

4. Learned counsel for the plaintiff-appellants urged that the defendant-Municipal Board had no right to raise the constructions on any part of the road which was a public street; that the road patris are included within the area of the road and no part of the road patris could be obstructed by the Municipal Board or by anyone claiming under it by raising constructions thereon. In support of his submission, the learned counsel relied on the decision of the Supreme Court in Municipal Board, Mangalore v. Mahadeo Maharaj, 1965 All LJ 335. It was also urged that the plaintiffs' house abutted on the road at the very place where the constructions in dispute were raised by the second defendant and the plaintiffs had, accordingly, suffered special damages and were entitled to have the constructions removed.

5. In the case of Municipal Board, Mangalore (supra) the Supreme Court held that inference of dedication of a highway to the public may be drawn from long user of a highway by the public and the width of the highway depends upon the extent of the user, the side lands being ordinarily included in the road, for they are necessary for the proper maintenance of the road. In that case, the plaintiff owned a plot of land and the public road ran through the said plot. There was vacant land on both the sides of the metalled road. There were ‘nalies’ at the end of both the sides (of the) land. The Municipal Board was seeking to erect a structure on the vacant land on the side of the metalled portion of the road. It intended to instal a statue of Mahatma Gandhi and also to construct two rooms on either side for a ‘piyo’ and library. On the facts, the Supreme Court held that it was not disputed that the metalled road was dedicated to the public. The inference that the side lands are included in the public way is drawn much more easily as the said lands are between the metalled road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and “so such of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street.” It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers subject to the rights of the Municipality and of the public to pass and re-pass on the highway, the owner of the soil in general remains occupier of it, and therefore, he could maintain an action for trespass against any member of the public who acts in excess of his right. The Supreme Court concluded by holding that the Municipality cannot put any such structures on the public pathway as are not necessary for maintenance or user of it as a pathway and that the putting up of the structures for installing the statue of Mahatma Gandhi or for ‘piyo’ or library was not necessary for the maintenance or the user of the road as a public highway; and that, therefore, the plaintiff who is the owner of the soil, would be entitled to ask for injunction restraining the Municipality from acting in excess of its right; although he could not ask for possession of any part of the public pathway as it continues to vest in Municipality.

6. The distinction between the case of Municipal Board, Mangalore (supra) and the present case lies in the fact that the plaintiff is not the owner of any part of the land of the road Patri on which the constructions in dispute have been raised by the second defendant under a ‘patta’ granted to her by the defendant-Municipal Board. The question is whether that fact is sufficient to disentitle the plaintiffs to relief. Now, in that case although the plaintiffs were the owners of the land it was held by the Supreme Court that they were not entitled to possession; that the surface of the land vested in the Municipal Board and the plaintiffs could restrain the Municipal Board from raising any constructions not warranted by the purpose of the use of the land as a public pathway for which it was dedicated to the public and the management of which vested in the Municipal Board. In the present case, it has been found that the land is ‘nazul’ land. However it is clear that being part of the road patri, it was included within the area of public street. The Government as owner could not have resumed possession over any part of the road patris, nor could the Municipal Board do so, as the person entitled to manage the ‘nazul’ land on behalf of the Government. Being included in the public street it was dedicated to the public for the purposes of use as such, and the Municipal Board was bound and entitled to use the land only for the purposes of maintaining the public street. The act of the Municipal Board in letting out a part of the road patri to the second defendant was, therefore, clearly wrongful and could be restrained by injunction.

7. The question which, however, remains is whether the plaintiffs had a right to sue. The two Courts below have held that the plaintiffs could not be said to have suffered any special damage inasmuch as it was found that no door of their house opened on that side. That may be so. The plaintiffs may, therefore, be held to have no right of easement on the land but surely they had their right of free passage over any part of the public street. The land in suit was a part of the public street. The plaintiff's right to pass freely over that land was infringed. Their house abutted on the public street at the very place where the constructions in suit were raised. It cannot, therefore, be said that the plaintiffs did not suffer any special damage by reason of the constructions in suit on the road patri along the side of their house.

8. The above discussion is sufficient to show that the plaintiffs are entitled to an injunction restraining the defendants from using the road patri in any such manner as may obstruct their right to free passage thereon. The question, which still remains is whether they are entitled to have the constructions in suit demolished. It may be here noticed that the constructions in suit were raised by the second defendant at her own risk under cover of an interim injunction granted in the earlier suit. The constructions could, therefore, be said to have been raised lis pendens. Moreover, public interest must prevail over private rights. If a person deliberately builds a house on a public street, the house has to be demolished, however valuable it may be in order to keep intact the public right of free passage over the whole of the public street. Hence, it is a fit case where the constructions should be demolished.

9. In the result, the appeal succeeds and is allowed with costs. The judgements and decrees of the two Courts below are set aside. The plaintiffs' suit for demolition of the constructions shown by the letters ‘ABCD’ on the plaint map raised by the second defendant on the patri of the police line road at Bulandshahr by the side of the plaintiffs' house is decreed with costs throughout. The said constructions shall be demolished and the ‘malba’ thereof removed by the defendants within a period of three months, ‘failing which the plaintiff shall be entitled to have the constructions demolished by the process of Court and to have the “malba” sold and removed for meeting the expenses of demolition and the costs awarded to them hereby, the balance, if any, being payable to the second defendant.

10. Before this judgement could be pronounced. I, was persuaded by Shri B.B.P Singh the learned counsel for the Municipal Board, Bulandshahr, to hear him also on behalf of the respondent Municipal Board on the ground that he was not present at the hearing on account of reasons beyond his control. However, having heard him, I do not find any sufficient reason to alter the judgement already prepared. Mr. B.B.P Singh argued firstly that the land did not form part of the road patri and, therefore, the ruling of the Supreme Court in the Mangalore Municipality's case (supra) could not be applied to the facts of the present case. The argument is untenable. The land does undoubtedly lie between the plaintiff's house and the metalled portion of the road. It has been found to be ‘nazul’ land. In the circumstances, if must be presumed to form part of the road as its patri. The lower appellate Court was, in my opinion, not right in observing that if vacant land belonging to the Municipal Board is lying on the side of the road, the right of the Municipality to use it cannot be challenged. The observation is too wide and cannot be applied to the facts of the present case inasmuch as the fact that it is nazul land, the area of the land, its situation and the alignment of the road, all lead to the inference that the land in suit forms part of the road patri and was, thus, a part of the road.

11. Mr. B.B.P Singh then alleged that S. 91 as it stood before the amendment of the Code of Civil Procedure by the 1976 Amendment Act, bars the suit. This contention is also not correct inasmuch as S. 91 only confers an additional right to file a suit or a person who may not have suffered special damage by the public nuisance complained of.

12. In the present case, I have found that the plaintiff's house abuts on the road at the very place where the obstruction complained of was raised and that, therefore, the plaintiff did suffer special damage by the wrongful use by the defendants of the land forming part of the road at that place.

13. Appeal allowed.