Jack, J.:— This appeal has arisen out of a suit for the removal of an alleged encroachment made by the defendant No. 1 and defendant No. 2 on a passage leading to the plaintiff's house. The suit was decreed by the Munsif against defendant No. 1 and dismissed against defendant No. 2. The court of appeal below dismissed the suit.
The learned District Judge found, first, that defendant No. 1 had reduced the passage in question by encroachment from 3 ft. 6 in to 2 ft. 8 in width by the erection of a wall and privy; second, that the passage is a public way which had vested in the Howrah municipality; third, that the encroachment of 10 inches does not interfere with the plaintiff's right of way.
On the facts, as he has found them, the learned judge states that the suit must fail as the municipality has not complained and no right of the plaintiff has been violated, in as much as sufficient road way, i.e, 2 ft. 8 in has been left it to pass to and from her house, and this is the only right she had over the road. That this is the only right she had over the road is not, however, correct. The plaintiff complains that she has actually been put to much inconvenience, as no large article can be brought into her house, now that the passage has been narrowed by 10 inches. The plaintiff was certainly entitled to bring such articles into her house along this public road way which is the only means of entry into the house. The court of first instance rightly found that the plaintiff's right had been affected by the encroachment, as a member of the public she is entitled to the use of the full width of the passage way and owing to the situation of her house she is peculiarly affected by the encroachment. Therefore, though this is not a case in which Order I, rule 8 is applicable, the plaintiff has every right to claim relief, even if it be held (and this has been strenuously urged for the respondent) that no action can be maintained by a member of the public for obstruction of a highway without proof of special damage. That no proof of special damage is necessary appears to be established on the authority of the case of Manzur Hasan v. Muhammad Zaman, in which their Lordships of the Privy Council overruled the contrary view held in, the case of Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga. The Bombay case was followed later in the case of Muhammad Din Mian v. Mussammat Atirajo Kuer*, in which no reference is made to the Privy Council case. In the latter, Lord Dunedin says:
The judgment [Satku v. Ibrahim(3)] really proceeds entirely on English authorities, which lay down the difference between proceedings by indictment and by civil action. In their Lordships' opinion such a way of deciding the case was inadmissible. The distinction between indictment and action in regard to what is done on the highway is a distinction peculiar to English law and ought not to be applied in India.
His Lordship then referred to the case of Baslingappa Parappa v. Dharmappa Basappa(4), of which he says that the learned Judges without saying so overruled Satku v. Ibrahim. Their Lordships were dealing with a suit for damages for preventing the plaintiffs from conducting a religious procession along a highway and for a permanent injunction against the defendants, but it seems clear that the same rule is applicable to all cases of obstruction of a highway and, just as in that case and certain Madras cases referred to by their Lordships [Parthasaradi Ayyangar v. Chinnakrishna Ayyangar(5), Sundram Chetti v. The Queen(6), Sadagopachariar v. A. Rama Rao(7)] it was held that no special damage, other than the obstruction of the procession, was needed, so here I would hold that no special damage is required further than the plaintiff's inability to carry large articles into her house owing to the obstruction. It is, however, urged for the respondent, that the learned judge's finding that this is a public passage is contrary to the pleadings, inasmuch as though, at the end of her plaint, the plaintiff prays to be allowed to conduct the suit on behalf of the public, she says the public have no right of egress and ingress over this passage. According to the learned judge, the plaintiff has all along alleged that it is a public road and the case has proceeded throughout on this basis. It seems that the, plaintiff was not sure whether it could be called a public road and pleaded alternatively that, whether it was public or private, her rights had been infringed. The learned judge definitely finds that it has been claimed by the plaintiff to be and is part of a public road. In these circumstances, I think the finding that it is a public road should be accepted.
On the findings of the courts below, it is clear that the rights of the plaintiff as a member of the public have been infringed and that she is entitled to the relief granted by the court of first instance, viz., that the wall and privy of the respondent should be removed to the extent they have encroached on the 3 ft. 6 in wide passage as shown by the commissioner's map, the red line in which is the boundary of the passage and the respondents' holding on the north.
An injunction appears to be justified in the circumstances of the case, as held by the court of first instance and I do not think it necessary to send back the case to the appellate court for a decision of this point, the facts found by the Munsif not having been seriously disputed. It seems clear that the plaintiff had no opportunity of preventing the construction of the wall and privy to which the respondents must have known she would object. The Howrah municipality was not a necessary party and it has been found that their sanction to the erection of the wall and privy on this encroachment on the public way has not been established.
The appeal is, therefore, allowed and the decree of the Munsif is restored. The defendant No. 1 must pay half the costs of the plaintiff throughout.
Mallik, J.:— I agree with my learned brother in the order that he has made in this case. The finding was that the passage was a public pathway and that the obstruction resulted in plaintiff's inability to carry large articles into her house. Regard being had to the peculiar situation of her house, this inability to carry large article into her house, was ‘special damage’—damage beyond what is suffered by her in common with other persons affected by the nuisance, viz., inconvenience in passing along the pathway.
A.A
Appeal allowed.