KALI NATH HAKRABARTTY Vs. NAIMUDD

JUDGEMENT

(1.) This is an appeal, under Clause 15 of the Letters Patent from, the judgment of Mr. Justice Newbould in a suit for declaration of a right of way, and for an injunction to compel the defendants to remove an obstruction which they have erected across it.

(2.) The Courts below have found in favour of the plaintiffs upon the existence of the way as alleged by them. But they have dismissed the suit on the technical ground that the plaintiffs had not described the way as a public pathway, a established by the evidence. That decree of dismissal has been affirmed by Mr. Justice Newbould on the ground that the plaintiffs have not suffered special damage as they would have to establish if the way was a public path, because the obstruction to the road had been placed at some distance from their house. In our opinion, the suit should not have been dismissed on a technical ground as has been done by all the Courts.

(3.) The judgment makes it plain that there is a way as alleged by the plaintiffs and that the defendants have unlawfully obstructed it. We shall assume for the purpose of our decision that it was a public village path and that the plaintiffs can succeed only upon proof that they have suffered special damage inasmuch as they have not instituted the suit on behalf of the members to the public in accordance with the provisions of the Civil Procedure Code. But upon the facts it is abundantly clear that they have suffered special damage. No doubt, the obstruction has been placed not in immediate front of the outer door of their house but at some distance; but it is clear that, while every member of the public has been prevented from using the pathway, the plaintiffs have suffered special in-convenience because they have been prevented from using the way as a convenient accuse to their house. They have thus complied with the requirement of the rule that where a wrongful act has been done a He outing the public at large, as well as causing inconvenience and damage to the individual, if the inconvenience and damage caused to the individual be the same as the public at large are exposed to, the individual has no right of action, unless he can show that he has suffered some special and particular damage See the judgment of Westropp, C.J., in Satku v. Ibrahim Aga 2 B. 457 : 2 Ind. Jur. 828 : 1 Ind. Dec. (N.S.) 726, where numerous instances are given of special damage]. In the circumstances of this case, we are clearly of opinion that the suit should have been held maintainable.