BHAGWAN DAS Vs. TOWN MAGBUDAUN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for abatement of a public nuisance. The plaintiff owns a house numbered 151. Defendants 2 to 4 are the owners of a house numbered 143. Between these houses is a public thoroughfare, the exact width of which is not known. The defendants constructed a chabutra or platform on the public thoroughfare measuring six yards in length and two and a half feet in breadth. The plaintiff complains in para. 3 of the plaint that owing to this improper act on the part of defendants 2 to 4, the way has become narrow. The plaintiff's cart cannot be turned round after passing along it. On account of this, the plaintiff's right of easement is much jeopardized. The plaintiff has to unload his cart at a distance and to turn it back.

(2.) No relief has been claimed against Town Area of Gunnore which ranks as defendant 1 in the present action. There can be no doubt that a portion of the public thoroughfare has been encroached upon by defendants 2 to 4. It is remarkable that the Town Area of Gunnore have taken no steps to have the obstruction removed. This case is illustrative of the general slackness of local bodies in the proper administration and control of public rights.

(3.) Defendants 2 to 4 contested the suit on the ground that the platform had been in existence for more than 20 years and that the plaintiff's suit was liable to dismissal because he had not suffered any special damage beyond what he did in common with all other members of the public affected by the nuisance. The Court of first instance held that the platform had been recently built but dismissed the plaintiff's suit on the ground that he had failed to prove special damage. The lower appellate Court affirmed the decree on the ground that the platform had not been recently built and that the plaintiff had failed to prove special damage. Public nuisance is not by itself an actionable wrong but a public nuisance may under certain conditions become a private wrong. A person founding a cause of action upon a public nuisance has to establish a particular injury to himself beyond what is suffered by the rest of the public.