RAMABRAHMA SASTRY Vs. LAKSHMINARASIMHAM

JUDGEMENT

(1.) There was a prolonged argument in this Second Appeal over a small dispute between brothers who live in a village and who have been fighting since 1927 about their rights over a blind lane marked C and C in the plaint plan filed with the plaint. The houses of the brothers face this land 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 C ' to his house the gate of whose compound is A-4 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 A-4 into the lane ' C C'. 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 ' C C' that have any need to use the pathway. According to the plaintiff, the first defendant recently constructed the pials C-2 and C-3 in front of his house encroaching upon the lane ' C C' obstructing the free passage of bullock carts through the lane ' C C' 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-General under Sec. 91 Civil Procedure Code and also because the 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 defendants' 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 Sec. 91 Civil Procedure Code. The lower Appellate Court found that the construction of the pials was recent, that the pials encroached upon the lane and rendered it difficult for double bullock carts to run into the compound of the plaintiff's house. Following the decision of the Madras High Court in Murugesa Mudali v. Arunagirimudali 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 the villagers affected without proof of special damage and without complying with Sec. 91 Civil Procedure Code. Sri K. B. Krishnamurthy contended that the decision of the lower appellate court was erroneous and that Murugesa Mudali v. Arunagiri Mudali, Subbamma v. Narayanamurthi and Muniswami v. Kuppuswami, all of them being decisions of single judges, were wrongly given. He argued that the lane was a highway, that the fact 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.

(2.) The questions that call for an answer are whether the act complained of is a public or private nuisance and if it falls under the former category, whether the plaintiff has suffered such damage as entitles him to sue without sanction under Sec. 91 Civil Procedure Code. Sec. 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 it any the less a public nuisance. If the lane in question is a higvvay as contended by the appellant, the act of the defendants in encroaching upon tht 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 decided in 1924 the Judicial Committee held that in India there is a 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 Muniswamy Chetti v. Kuppuswami Chetty 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 v. Basantkumare, Debi and by the Chief Justice and Din Mohmed, J., in Municipal Committee Delhi v. Mohammed Ibrahim Horwill, J., in Appayya v. Narasimhulu 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 under Sec. 91 Civil Procedure Code. Wadsworth, J., observed that Horwill J., had not noticed the decision of the Judicial Committee or of the other cases cited above. In Bhulogantham Pillai v. Rajagopala Pillai a Division Bench of the Madras High Court (Leach C. J., and SomayyaJ.), without overruling Wadsworth J., assumed or impliedly decided that special damage was necessary to entitle a person to sue in respect of a public nuisance without conforming to Sec. 91 Civil Procedure Code and directed an amendment of the plaint so as to include a plea of special damage. In Subbamma v. Narayanamurthi, Satyanarayana Rao J., followed the decision of Wadsworth J., and the Calcutta and Lahore cases cited above and dissented from Surendra Kumar Basu v. District Board of Nadia and Chowdhry Behuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad. Satyanarayana Rao, J., held that it was open to an individual member of the 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 under Sec. 91 Civil Procedure Code. Relying on the observations of Wilson, J., in Chunilal v. Ramakishen Sahu , 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 premission of the court under Order 1 Rule 8 Civil Procedure Code 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 Murugesa v. Arunagiri followed the opinion of Satyanarayana Rao J., and decided that infringement of the residents 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 under Sec. 91, Civil Procedure Code or the permission of the Court under Or. 1 Rule 8 Civil Procedure Code.

(3.) 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 streets 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 otherwise 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 Sec. 91, Civil Procedure Code and in conformity with its provisions, no action can be maintained by an individual against another for obstruction to a public highway without proof of special damage. This rule is founded 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 Munzur Hasan v. Muhammad zaman . The ratio decidendi of the case before the Judicial Committee as well as of the cases in Baslingappa v. Dharmappa and Velan Pakkiri v. Subbayan' was that the defendants, the 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 another 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 higway amounted to a public nuisance. I am in respectful agreement with the decision of B. K. Mukherjea and Sen JJ. in Surendra Kumar v. District Board, Madia ., which considers the earlier decisions on the question. See also Bibhuti Narayan v. Mahadev Asram .