DASRATH MAHTO Vs. NARAIN MAHTO

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of Wort J., reversing the decisions of the lower Courts and decreeing the plaintiffs suit for removal of a certain obstruction erected by the defendants in a roadway. The roadway in question is referred to as plot No. 610. This roadway passed the houses of plaintiffs 1 to 7 and passed the house of the defendants. The latter proceeded to make certain constructions on their land and encroached upon this thoroughfare. A commissioner was appointed, and it is now clear that on the western side of the defendants house there had been an encroachment on this thoroughfare varying from 28 links on the northern side to 15 links on the southern side. The thorough, fare, as it now is, is said to be only 12 links wide-in other words, the defendants have encroached on, roughly, two-thirds of the highway on the north of their property and roughly half on the southern side of their property. The present suit was brought by plaintiffs 1 to 7 who were inhabitants of the vicinity of this thoroughfare and by plaintiffs 8 to 11 who were residents of the village. According to the plaintiffs, they had suffered inconvenience as the result of this encroachment and they prayed for an order for the removal of the same and for restoration of the thoroughfare to its original state.

(2.) The defendants pleaded that they had made no encroachment, but that plea has been found to be false. As I have stated, there was a very serious encroachment in this case. The defendant further pleaded that the suit not having been framed under Section 91 or Order l, Rule 8, Civil P.C., it was not maintainable. Further, it was alleged that as the plaintiffs had suffered no inconvenience whatsoever they had no cause of action. The lower appellate Court affirmed the decision of the learned Munsif and held that there had been an encroachment but that the encroachment had caused no inconvenience whatsoever.

(3.) It further held that as the suit was not brought under the provisions of Section 91 or Order 1, Rule 8 it was bound to fail as no special damage had been proved. Accordingly, the learned Additional District Judge dismissed the claim in its entirety. In second appeal Wort J., held that it was not necessary to prove a special damage and that the suit was maintainable by persons living in the immediate vicinity, and after considering the matter fully he reversed the decision of the learned Additional District Judge and decreed the suit. In this appeal it has been strenuously contended that the decision of Wort J., cannot be sustained. It is urged that it is essential where the suit is not framed under Section 91 or Order 1, Rule 8, Civil P.C., to prove special damage, that is some pecuniary or particular loss over and above what has been suffered by the public generally.