RAJ CHANDRA HALDAR Vs. MAHIM CHANDRA MALLICK

JUDGEMENT

(1.) This is an appeal by plaintiff No. 1 against a decision of the Subordinate Judge of Faridpur reversing a decision of the Munsif, First Court at Bhanga. The plaintiff and two other persons sued together for a declaration of the existence of a public right of passage for boats in the rainy season over a certain channel and they also claimed that there was aright in the villagers of certain villages to, pass this channel. In addition the plaintiff claimed an easement over the channel in question. The suit was not appropriately constituted for the declaration, of the public right of way for such a suit it would be necessary to frame the proceedings under the provisions of Section 91 of the C.P.C. Accordingly, it was necessary for the plaintiff if he desired to succeed under this head to allege and prove that he had suffered special damage as a member of the public by reason of the obstruction caused by the defendants in the right of passage for boats alleged in the plaint. The First Court held that there was a public right of passage during the rainy season over the way in question and that it was only plaintiff No. 1 who established special damage and that he was the only person who was entitled to a decree. Accordingly, the First Court passed a decree on this ground against defendants Nos. 1 to 3 and no relief was given to the other plaintiffs in the suit. Both sides appealed to the lower Appellate Court, the defendants on the ground that there was no averment in the plaint of special damage having accrued to plaintiff No. 1 whereas the plaintiff in his cross-appeal contended that there should have been a decree on the facts in favour not only of himself but also of his co-plaintiffs, plaintiffs Nos. 2 and 3. Before this Court the only question that has been raised by the appellant is that there was a sufficient allegation in the plaint of special damage which had accrued to plaintiff No. 1. So far as the question of the right of the villagers is concerned and of the claim for easement this was not pressed before us having regard to the fact that one of the defendants had died pending the appeal and no substitution bad been effected in his place. In para 6 of the plaint it is alleged that there is no other passage for going out towards the east and west from the plaintiffs houses except the one marked "A". We are told that there was some evidence given on behalf of the plaintiffs that they had to pass by a more circuitous road for the purpose of harvesting their crops and that they also had incurred additional expense from being compelled to go by this circuitous way. But what we have got to decide is whether the lower Appellate Court was wrong in saying that the allegation in the plaint to which we have referred, was riot sufficient. In my opinion, the lower Appellate Court was right. We think, if, as here, the plaintiff relies on special damage he must allege special damage in the plaint giving particulars and details Of special damage Which has accrued to him. The mere general allegation such as is contained in para. (b) of the plaint is, in my opinion, not sufficient and the plaintiff in a case of this nature Is hot entitled to say, as the learned Vakil urged before us, that the other side could have got the necessary information if they had chosen to ask for particulars of the special damage said to have accrued to the plaintiff by reason of the obstruction.

(2.) In this view of the case we think the decision of the lower Appellate Court is right and this appeal fails and is dismissed with costs. Cuming, J.

(3.) I agree.