JUDGMENT Mushtaq Ahmad, J.
1. This is an appeal by the plaintiffs, who are residents of village Bhawanipur, Pargana Sambhal, District Moradabad, in a suit for injunction. The reliefs claimed were that the defendant be directed to remove certain constructions from plots 38 and 39 which form-ed part of a passage running through the Village and that he be prevented from interfering with the plaintiffs' right to take their carts and their processions on occasions of death and marriage along the route in future.
2. The allegations in the plaint were, that a passage ran through village Bhawanipur on plots 31, 38, 39 and 44, on either side of which there were residential houses, that on the western side of the passage there was plot 41, on which the defendant had his house, that the defendant by extending that house had occupied plot 38, forming part of the passage and thereby completely blocked the same, that the plaintiffs used to pass over the passage and also take their carts and processions, and that: (rain) water of the village also used to pass through the said passage, which too had been stopped on account of the defendant's acts.
3. There was also a further allegation that the passage in question was connected with other villages on either side of village Bhawanipur, so that people from outside Bhawanipur also used to pass through it from one end or the other.
4. In defence, it was pleaded that plot 38 had been in-possession of the defendant for over 12 years and that the suit was barred by limitation and estoppel.
5. The trial Court held that the defendant had not been in possession of the site for over 12 years, the same being a part of the way, that the suit was not barred by time or estoppel, but that it was barred by Section 91, Civil P.C., inasmuch as the plaintiffs had not obtained the consent of the Advocate-General for the suit, nor had proved any special damage to themselves as required by the said section, and on these findings, it dismissed the suit. The lower appellate Courts, affirming the finding on the last point, dismissed the appeal of the plaintiffs. The present appeal is against the latter decree.
6. The only point involved in the appeal and argued by the learned Counsel for the parties was with reference to the bar of Section 91, Civil P.C. The learned Counsel for the plaintiffs- appellants contended that the plaintiffs' case had been misappreciated by the Court below, inasmuch as they wrongly took into consideration the interests of the public outside village Bhawanipur find completely missed those of the residents of the village specifically in respect of the passage running from one end of it to the other. What the learned Counsel meant was that even if the passage running through the village was considered as a part of the longer route extending beyond its precincts and thus a part of the public highway, it was, so far as the village itself was concerned, only a village path in which the residents of the neighbourhood were directly interested and that the plaintiffs being among those residents were entitled to a decree, even if no special damage was proved. On the other hand, the contention on behalf of the defendant-respondent was that the plaintiffs having admitted in the plaint that people from outside the village also used the passage running through it, the proper basis of consideration was by taking the entire route as public thoroughfare and that the plaintiffs were not entitled to any relief unless they had proved special damage to them-selves or had obtained the consent of the Advocate-General, as required by Section 91 of the Code. Now this section lays down that:
(1) In the case of a public nuisance, the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
If Sub-section (1), as just quoted, is applicable to the present case, it is obvious that the suit was rightly dismissed. On the other hand, if the case came within the ambit of Sub-section (2), it is equally clear that the suit was wrongly dismissed. We have to see as to which of these two provisions is applicable to the facts of the present case.
7. The term "public nuisance" has not been defined in the Code. Section 3 (44), General Clauses Act, X [10] of 1897, no doubt, provides that the term "means a public nuisance as defined in the Penal Code", and Section 268 of the Code defines it as follows:
A person Is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or nuisance to the public on to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or nuisance to persons who may have occasion to use any public right.
8. While it is true that this section does not apply to acts or omissions calculated to offend the sentiments of a class or a person of particularly refined susceptibilities-les non favet vots delicatorum-it does, on its plain language, apply to the residents of a particular neighbour-hood, so that if they are all affected by the alleged act of the wrong doer, the act would be a "public nuisance" within the meaning of this section.
9. There is no doubt that the plaintiffs in paras. 2 and 3 of the plaint had alleged that people of other villages also passed through the passage in question, None-the-less, the residents of the village could claim special amenities not open to those others in respect of that part of the passage which ran from one end of the village Bhawanipore to the other; for instance, while these residents required to take their carts and their processions over the passage in the village, the outsiders may never have any occasion to do so or at least as frequently as those residents. Besides, the plaintiffs had also alleged that the water of the village flowed over the passage running through the village and had been stopped by the defendant's act, that being a matter causing inconvenience to the residents of the village alone, without in any way affecting the interest of the outsiders on that score. The Courts below treated the passage in the village only as a part of the longer highway and brought the incidents appertaining to such highway to bear on their decision on the question of the plaintiffs' right in respect of the passage in dispute. This, in my opinion, was a faulty approach, as different considerations would arise in connection with a public highway as distinguished from a village pathway, though the latter may form part of the former. In Jotendra Mullick v. Satya Kinkar Sain A.I.R. (25) 1938 Cal. 366, the facts showed that the village-pathway was connected with other routes at one end of the village, and yet Mukherjea J. emphasising the distinction between a public highway and a village path and pointing put the difference between the incidents applicable to both held the Same only to be a village path.
10. Again, Bajpai J. in Lok Nath Tewari v. Jadunandan Tewari A.I.R. (20) 1933 ALL. 919, observed that, although a public pathway was alleged in that case to have been infringed by the defendant, it was more or less "a village path, wherein the residents on either side and round about might be considered to have a right acquired by long user of passing to and for and that it was not necessary to prove any special damage before an action for the avoidance of the obstruction was raised. The learned Judge pointed out that the obstruction there was to the free passage of bullock carts, loaded animals, horses and elephants on festive occasions and farther that if a proof of special damage were necessary, it is clear that a very small amount of inconvenience would entitle the plaintiff to the relief claimed.
11. In the Full Bench case of Chuni Lall v. Ram kishen Sahu 15 Cal. 460 (F.B.), Wilson J. made the following observation which has now become almost classical:
By the common law of England there are three distinct classes of right of way and other similar rights. First, there are private rights in the strict sense of the term vested in particular individuals or the owners of particular tenements and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as freemen of a city, the tenants of a manor or the inhabitants of a parish or village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exist for the benefit of all the Queen's subjects, and the source of these is ordinarily dedication.
12. The above passage has been the foundation of a large number of cases decided in India, and so far as this Court is concerned, it was adopted in a Bench decision of this Court in Ram Kali v. Munna Lal A.I.R. (26) 1939 ALL. 586. The learned Judges further relied on the case of Brocklebank v. Thompson (1903) 2 Ch. 344, in which it had been observed that:
Where there is the intention to allow not the public generally but merely visitors to or traders with the people of the village or ways allowed to be used by villagers to go to church or market or the common fields of the village, such ways are not regarded as public ways, but private ways.
It is important to keep in view this distinction between a public highway and a village pathway as it has a significant bearing on the right of the complaining party to obtain relief, inasmuch as the conditions for the enforcement of such a right widely differ, as we pass from the one to the other. In the latter class of cases the requirement of the plaintiff proving special damage has never been insisted upon, nor has the fact that the plaintiff suffered inconvenience or damage in common with the other residents of the locality been held as a ground to confine him only to a remedy under C. 1, Rule 8, Civil P.C. The provisions in that rule are merely of an? enabling and not of an imperative nature and only signify one of the three ways in which relief against a public nuisance may be claimed, these being the following: (1) a suit by two or more persons with the consent of the Advocate-General without proving special damage, (2) a suit by a single individual alleging special damage, and (3) a suit by one or more persons, commonly interested, with the permission of the Court.
13. That a village pathway is not a public highway and that no special damage need be proved in a suit for removal of an obstruction to the former have been further held in the cases of Harish Chandra Saha v. Harish Chandra Chuckerbatty A.I.R. (10) 1923 Cal. 622 and Pran Nath Kundu v. Emperor A.I.R. (17) 1930 Cal. 286. The latter case is important, as the road in that case was used not only by the residents of a particular village, but also by those of two or three other villages. I have already pointed out that the matter should in each case be considered from the point of view of the particular claimant as a member of the village community, all the members of which, no doubt, having a common interest and a common grievance, where an encroachment has been made, such grievance, not necessarily accruing to the people outside the village or, at least, not to the same degree.
14. The question may be considered from a yet another stand-point, and this would bring in the application of subs. (2) of Section 91, Civil P.C., which I have already quoted. A person in the immediate neighbourhood entitled to use a the roughfare, even a public thoroughfare, has special Cause of action, and he need not prove special damage to obtain relief. It is obvious that the inconvenience complained of in such a case would be common to all the residents in the neighbourhood, and yet such a circumstance alone would not make it obligatory on him either to join another individual and obtain the consent of the Advocate-General to file a suit or in case he chooses to file the suit alone, to prove special damage to obtain a decree. This principle was affirmed by the decisions in Dasrath Mahto v. Narain Mahto A.I.R. (28) 1941 Pat. 249 and Pahlad Maharaj v. Gauri Dutt Marwari A.I.R. (24) 1937 Pat. 620. In the latter case it was pointed out that the real principle is that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss.
15. The degree of inconvenience resulting from an alleged obstruction to a village path will obviously vary in different cases. In Muhammad Raza Khan v. Mohammad Askari Khan A.I.R. (11) 1924 ALL. 599, the fact that the plaintiff had to reach a particular spot by a different way than what he had previously followed was held sufficient to amount to special damage. In Ram Chandra v. Joti Prasad 33 ALL. 287, the fact of the plaintiff having to make a detour by reason of the nuisance was also taken as special damage for the purposes of Section 91, Civil P.C.
16. The inconvenience alleged in the present case, as I have already pointed out, was of a much more serious nature. As alleged in the plaint, not only the plaintiffs' right of passage but also their right to take carts and processions on occasions of marriage and death over the route had been obstructed by the constructions I in dispute. Also the water flowing through the 1 village over the path had been obstructed in consequence thereof. These were infringements of rights which the plaintiffs, as residents of the village, essentially enjoyed, the infringements certainly causing them special damage. The position would not be in any way affected by the mere fact that the other residents of the village also had equally suffered by reason of the defendant's act, for the simple reason that the obstruction was on a village path, in which though the residents of that particular locality were commonly interested, each had a special right which was protected by Sub-section (2) of Section 91 of the Code, irrespective of the class of cases covered by Sub-section (1).
17. The learned Counsel for the respondent relied on three oases of this Court: (1) Bhawan Singh v. Narottam Singh 6 A.L.J. 499, (2) Mahant Ram Chandra v. Joti Prasad 8 A.L.J. 19 and (3) Hanuman Prasad v. Raghunath Prasad A.I.R. (11) 1924 ALL. 715. The first was a case of an admitted public thoroughfare without any allegation of a particular damage, the seceded was also a case of public road, in which the fact of the plaintiff having to make a detour was held to constitute special damage, and the third and last was a case of the plaintiff having acquired a prescriptive right of immediate access from his private house to a public highway by virtue of long use and was held to assert such right as a private right distinct from his rights to use the highway itself. It was pointed out that an interference with such a right which prevented the house owner to bring up carts and carriages up to his house also caused particular damage entitling him to maintain a suit. None of these cases touch the point which I have had to consider in the present case. The Courts below, as I have already indicated, decided the case on the mere assumption that the passage in question was a public thoroughfare. In disregard of the nature and scope of the real subject-matter of the dispute on that assumption, they relied on certain rulings relating to public thoroughfares, and holding that the plaintiffs had failed to prove special damage, they had no difficulty in dismissing the suit. As a have held, such an assumption was not justified on the facts of this case. The passage in question from the point of view of the plaintiffs and their co-residents of the village was essentially a village path raising entirely different considerations bearing on the plaintiffs' right to claim a relief. I think that in the circumstances of the case, they were entitled to a decree, and the suit was wrongly dismissed,
18. I, therefore, set aside the decrees of the Courts below and grant the plaintiffs a decree in the terms prayed for with costs throughout.
19. Leave to appeal under the Letters Patent is granted.