JUDGMENT T.S. Misra, J.
1. This appeal by defendant No. 2 arises in the following circumstances. The plaintiff and one Mst. Bhurki purchased the southern half portion of premises No. D-3/36 situate in Mohalla Shivala, Bhelpur Ward, Varanasi on 26th of November, 1964. After some time the plaintiff and Smt. Bhurki partitioned the premises and thus the half northern portion thereof came to the share of the plaintiff and the southern portion fell to the share of Smt. Bhurki. A partition wall was raised between the two portions. The main door of the house for egress and ingress purposes abutted the settlement plot No. 1709 which is a public street. The plaintiff alleged that she and Smt. Bhurki and their predecessor in title had always enjoyed the right of passage to and from the said premises over the public street as of right without any hindrance and obstruction from anybody. Defendant No. 1 Nagar Mahapalika of the City of Varanasi, however, wrongly and illegally granted a lease of a portion of the said plot No. 1709 to defendant No. 2 on 9th November, 1964. This fact came to the knowledge of the plaintiff only when defendant No. 2 started encroaching upon the portion of said plot No. 1709 in such a way that the plaintiff's right for egress and ingress to her house was threatened to be completely affected. The plaintiff raised an objection to the same but to no avail-She approached the Nagar Mahapalika and the police authorities. The Nagar Mahapalika issued notice to defendant No. 2 for demolition of the wall which defendant No. 2 had constructed treating the same as unauthorised. The said wall virtually and practically blocked the only passage for egress and ingress to the plaintiff's house. Defendant No. 2 thereupon filed the suit against the Nagar Mahapalika for injunction restraining the Nagar Mahapalika from demolishing the wall and other constructions in question. The plaintiff filed an application in that suit for being impleaded as a party, but that application was opposed and the court disallowed it with the remark that she might agitate her right in a separate suit hence the plaintiff filed the suit which has given rise to this appeal against the Nagar Mahapalika and defendant No. 2 for an injunction ordering defendant No. 2 to remove all constructions which she had raised and which would be obstructing the passage for egress and ingress to the plaintiff's house and to restrain the defendant from doing any act over said plot No. 1709 which might prejudicially affect the plaintiff, in her enjoyment of free passage over said plot No. 1709.
2. The suit was resisted by defendant No. 2. She alleged that the land over which the constructions in question had been made formed part of the house which is adjacent to the house of the plaintiff. She further alleged that she had obtained a lease of the land in dispute from the Nagar Mahapalika and has had every right to make constructions on the same. She denied that the plaintiff had any right of passage over any portion of the land in question and that no door of house No. B-3/36 ever opened on that land. It was further alleged that even if there was any partition between the plaintiff and Smt. Bhurki, the plaintiff should have adjusted the equities and the rights of passage inter se and she could not create any fresh rights in her favour with regard to the passage on the land in dispute. The Nagar Mahapalika in its written statement pleaded that it was entitled to lease-out the portion of the public land vesting in it and the plaintiff had no right to complain against the same. Further, it was alleged that if the plaintiff had any right of passage over the portion leased out to defendant No. 2, the plaintiff was free to enjoy it and that the Nagar Mahapalika would not put any hindrance in the way of the plaintiff. The Nagar Mahapalika also contended that the constructions made by defendant No. 2 were unauthorised but on account of a temporary injunction granted by the court, the constructions could not be demolished. Khasra Bandobast and a sale-deed of 1933 and other documents were filed to prove that plot No. 1709 is a public lane. The trial court on a consideration of the evidence on record found that the said plot is a public lane and that the main door of the plaintiff's house always existed towards east and opened on the said public lane and that the said plot No. 1709 was used as a passage by the plaintiff for egress and ingress purposes to her house. It further held that the said plot No. 1709 never formed part of the house of defendant No. 2. The trial court, therefore, decreed the suit and directed defendant No. 2 to remove the constructions in dispute within one month failing which the same were ordered to be demolished through court. Against that decision defendant No. 2 preferred an appeal. The appellate court below on re-appraisal of the evidence found that the land of settlement plot No. 1709 which adjoined to the house of the plaintiff and defendant No. 2 was being used as Abadi Easta and it was a public way. It also found that the door of the plaintiff's house existed and opened on the disputed land before the objectionable constructions had been raised by defendant No. 2 and that the plaintiff had enjoyed the right of passage through her door of the house over said plot No. 1709 prior to the constructions raised by defendant No. 2. These findings are findings of fact and are conclusive. The appellate court below further held that the lease granted by the Nagar Mahapalika to defendant No. 2 was not valid. The lease-deed had not been executed by the Mukhya Nagar Adhikari but had been executed by the Sahayak Nagar Adhikari who had no power to do so. The said deed, therefore, did not confer any right on defendant No. 2 to raise any construction on the said land. The appellate court below, therefore, dismissed the appeal. Aggrieved, defendant No. 2 has come to this Court on second appeal.
3. For the appellant it was urged at the outset that the trial court had framed an issue as to whether the plaintiff had acquired an easementary right of way over the plots in suit and the parties adduced evidence on the same. The trial court recorded a finding on that issue in favour of the plaintiff. The appellate court below observed that the trial court had erred in framing an issue with regard to the easementary right of way, inasmuch as the plaintiff did not allege end claim any easementary right of passage but merely claimed a right of passage for egress and ingress of said premises No. D-3/36 through the settlement plot No. 1709 which was a rasta land. The appellate court below, therefore, did not uphold the finding of the learned Munsif, on the question of easementary right of passage. However, on a careful scrutiny of the evidence on record, the appellate court below found that a door of the plaintiff's house existed and it opened upon the disputed land, that the said settlement plot No. 1709 was being used as Abadi Rasta and it was a public way and that the plaintiff had a right to use that land as a passage to her premises. Learned counsel for the appellant, urged that as no issue has been framed on the point by the trial court, the appellate court below should have remanded the case instead of deciding the point itself. I find no merits in this contention. I do not think that defendant No. 2, appellant, was taken by surprise. The case of the plaintiff as set up in the plaint was that her house abutted on the settlement plot No. 1709 and that she and her predecessor in title were always enjoying the right of passage to the said premises over the said plot as of right end without any hindrance or obstruction from anybody. She was thus asserting her right of passage. This right was disputed by defendant No. 2, appellant. The parties went to trial fully understanding that the central fact involved in the case was whether the plaintiff had any right of passage through said land No. 1709, on a portion of which defendant No. 2 had raised certain constructions. In these circumstances, the absence of an issue would not be sufficient to vitiate the decision. Where the evidence on the record is sufficient to enable the appellate court below to pronounce a judgment, the appellate court may after re-settling the issues, if necessary, finally determine the suit notwithstanding that the judgment of the trial court had proceeded wholly upon some ground other than that on which the appellate court proceeds. That being so, the, appellate court below was, in my view, justified in deciding the said question and had committed no error in not remanding the case to the trial court.
4. It was next urged that the appellate court below had erred in holding that the lease granted by the Nagar Mahapalika was invalid. It was established from the evidence on the record that settlement plot No. 1709 is a public pathway. It is one of the duties of the Nagar Mahapalika to construct, maintain or repair public roads and streets. It cannot grant any lease of any portion of the public street or public road to the prejudice of any person whose house abuts on the same. The lease in the instant case was found to be invalid. The lease deed was admittedly executed by Sahayak Nagar Adhikari and not by the Mukhya Nagar Adhikari. It was urged on behalf of the appellant that the Mukhya Nagar Adhikari had delegated his powers to the Sahayak Nagar Adhikari to execute lease deeds on behalf of Nagar Mahapalika. Clause B of Sub-section (1) of Section 119 of the Nagar Mahapalika Adhiniyam provides that:
"Subject to the other provisions of this Act and the rules thereunder and subject to such conditions and restrictions as may be specified by the Mahapalika.........
(b) the Executive Committee may delegate to the Mukhya Nagar Adhikari any of its functions under this Act other than those specified in Part B of Schedule I."
Under Section 128 of the said Act, the Mahapalika shall, for the purposes of the Act, and subject to the provisions thereof and rules made thereunder have power to sell, let on hire, lease, exchange, mortgage, grant or otherwise dispose of any property or any interest therein acquired by or vested in the Mahapalika under the Act.
5. Section 12-8 of the Act provides that:
"(1) Every disposal of property belonging to the Mahapalika shall be made by the Mukhya Nagar Adhikari on behalf of the Mahapalika."
Part B of Schedule I stipulates that the functions of the Mukhya Nagar Adhikari under Section 129 cannot be delegated to the other officers or servants of the Nagar Mahapalika. That being so, the Mukhya Nagar Adhikari could not delegate his power to the Sahayak Nagar Adhikari to execute a lease-deed with regard to any property or any interest therein acquired by no vested (sic) in the Mahapalika. The lease-deed in the instant case having been executed by the Sahayak Nagar Adhikari was, therefore, rightly held to be invalid.
6. It was next urged that the plaintiff had failed to establish that any partition had taken place between her and her sister as a result of which the portion claimed by her fell to her share. It has been found as a fact that the partition did take place between the said two parties. This finding, not being perverse or illegal, cannot be assailed in second appeal.
7. It was further urged that the sister of the plaintiff had not been impleaded in the suit and, therefore, the suit was not maintainable. This plea was not taken by defendant No. 2 at the initial stage. The said sister of the plaintiff was neither a necessary nor a proper party and the suit was maintainable even in the absence of the sister of the plaintiff.
8. Lastly it was urged that the plaintiff had failed to make out a case of special damages and, therefore, the suit was not maintainable. There is no merit in this contention. The plaintiff had claimed in the suit that her house abutted on the settlement plot No. 1709 which is a public 'Rasta' and that her access to the same was being obstructed by defendant No. 2 who had raised the construction in question on a portion thereof. It is not disputed that defendant No. 2 has made a construction on a portion of the said plot No. 1709 and that by the said construction, the door of the house of the plaintiff has been completely blocked. It cannot, therefore, be denied that the plaintiff had suffered the inconvenience and, therefore, special damages in the circumstances of the case must be presumed. By means of this public nuisance special damage was caused to the plaintiff and she was, therefore, entitled to the reliefs claimed for in the suit. Any person who has a house abutting on a public road or lane is entitled to access to the road or lane from the house and no person or authority can destroy that right. This right does not emanate from prescription or long user but from the fact that the house abuts on the public way. Hence, if an obstruction is made by any person or authority of such public way which affects the ingress and egress, special damage to the owner of the property must be presumed. Defendant No. 2 by raising the construction on the portion of settlement plot No. 1709 has obstructed the plaintiff's passage thereon. The plaintiff, having thereby suffered special damage was. therefore, entitled to maintain the suit for demolition of the construction in question and for the injunction prayed for.
9. Lastly, it was urged that since the construction has now been in existence for more than a decade it would be expedient and proper to grant token damages instead of ordering the demolition of the construction. There is no substance in this contention. The suit was filed on 10th April, 1967. Defendant No. 2 had made the construction knowing it that the land was a public Rasta and that the construction would block the passage of the plaintiff.
10. No other point was urged.
11. There is no merit in this appeal. It is accordingly dismissed with costs. The interim order dated 6th of March, 1972, subsequently confirmed by the order dated 14th of March, 1973, is vacated.