MANDAKINEE DEBEE Vs. BASANTAKUMAREE DABEE

JUDGEMENT

(1.) This appeal has arisen out of a suit for the removal of an alleged encroachment made by defendant 1 and defendant 2 on a passage leading_to the plaintiff s_house. The suit was decreed by the Munsif against defendant 1 and dismissed against defendant 2. The Court of appeal below dismissed the suit. The learned District Judge found, first, that defendant 1 had reduced the passage in question by encroachment from 3 feet 6 inches to 2 feet 8 inches 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.

(2.) 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, inasmuch as sufficient roadway, i.e., 2 feet 8 inches has been left 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 roadway 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 C. 1, 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/s. Muhammad Zaman , in which their Lordships of the Privy Council overruled the contrary view held in the case of Satku Kadir V/s. Ibrahim Aga (1877) 2 Bom 457. The Bombay case was followed later in the case of Muhammad Din Mian v. Atirajo Kuer AIR 1931 Pat 418, in which no reference is made to the Privy Council case. In the latter (1), Lord Dunedin says: The judgment Sitku Kadir V/s. Ibrahim Aga (1877) 2 Bom 457 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.

(3.) His Lordship then referred to the case of Baslingappa V/s. Dharmappa (1910) 34 Bom 571, of which he says that the learned Judges without saying so overruled Satku Kadir V/s. Ibrahim Aga (1877) 2 Bom 457. 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/s. Chinnakrishna Ayyangar (1982) 5 Mad 304, Sundram Chetti V/s. the Queen (1883) 6 Mad 203 (FB) and Sadagopachariar V/s. A. Rama Rao (1902) 26 Mad 376, 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.