MUVVA BUTCHAMMA Vs. MOVVA VENKAES WARARAO

JUDGEMENT

(1.) (The Judgment of the Court was delivered by Chmnappa Reddy; J.) The appellant in this appeal under clause 15 of the Letters Patent filed the suit out of which the appeal arises for a mandatory injunction for removal of certain obstructions placed on plots marked 2 (a) and 3 (a) in the plan and for a permanent injunction restraining the defendants from interfering in any manner with the right oi the plaintiff to use the street A, B, C, D, for the paslag of men, cattle and carts for reaching plot No. 1 belonging to her. The suit was based on the allegations that A,B,C,D, was a public street,that the plots marked 2 (a) and 3 (a) were part of the public street, and that tho dcfendents had encroached upon plots 2 (a) and 3 (a) and caused ce tain obs ructions to be placed therein which interfered with the right of the plaintiff to the free use of the street for the passage of men, cattle and cans. Both the lower Court found the facts substantially as alleged by the plaintiff, namely that A,B,C,D, was a public street, that plots 2(a) & 3(a) were part of the public street and that the plaintiff had a right to use the street for the passage of her men, cattle and carts. On those findings, both the lower Courts as well as our learned bfother Kumarayya. J., were clearly of the opinion that the plaintiff was entitled to a permanent injunction restraining the defendant from interfering with her right to use the street for the passage cf men, cattle and carts. The prayer of the plaintiff for a mandatory injunction for removal of the obstructions placed upon plots 2 (a) and 3 (a), though granted by the trial Court, was rejected by the lower appellate Court on the ground that notwithstanding the obstructions placed in plots 2 (a), and 3 (a) the street was wide enough to afford a passage to men, cattle and carts and the plaintiff had not established any special damage entitling her to relief by way of a mandatory injunction. Our learned brother Kumarayya, J., agreed with the view of the lower appellate Court that the plaintiff was not entitled to the relief of mandatory injunction.

(2.) Mr. K Suryanarayana the learned Counsel for the appellant contended the on the findings arrived at by the lower Courts a mandatory injunction directing the defendan s to remove the obstructions should have been granted and the refusal to give this relief of mandatory injunction is inconsistent witb the grant of the relief of permanent injunction granted by all the Courts. We find fore* * in the contentions of Mr. Suryanarayana.

(3.) Before dealing with the contentions of Mr. Suryanarayana we may observa that our learned brother Kumarayya, J., repelled a contention that the suit was not mamtainable for non-compliance with provisions of Order 1, rule & and section 91, Civil Proceedurc Code. Kumarayya, J., observed: 'The English rule requiring such proof (i. t., proof of special damage) is not applicable to India. Herce a person can maintain a suit for establishing a public right and for removal of an obstruction which constituted a public nuisance without the sanction of the Adoxocate-Gencral under section 91, Civil Procedure Code and without proof of special damage."