An obstruction to a village pathway which only affects the residents of a particular locality is not a public nuisance and a suit for removal of such obstruction is maintainable without the sanction of the Advocate-General under Section 91 of the Civil Procedure Code, provided that the plaintiff has suffered special damage.

VISWANATHA SASTRY, J.

( 1 ) THERE was a prolonged argument in this Second Appeal over a small dispute between brothers who live in a village and who have been fighting since 1927 about their rights over a blind lane marked C and C in the plaint plan filed with the plaint. The houses of the brothers face this land at one end. In O. S. No 287 of 1927 the plaintiff obtained a permanent injunction restraining the defendants from obstructing the passage of the plaintiff, his men, carts and cattle through the lane C C to his house the gate of whose compound is A-4 in the plan and a mandatory injunction directing the defendants to remove the obstruction put up by them preventing the passage of the plaintiff, his men, cattle and carts through the gate A-4 into the lane C C . The finding of the courts in that case was and in the present case is that the lane is a village pathway though it is only the residents of the few houses that open into the lane C C that have any need to use the pathway. According to the plaintiff, the first defendant recently constructed the pials c-2 and C-3 in front of his house encroaching upon the lane C C obstructing the free passage of bullock carts through the lane C C to the plaintiff s house. The defendants plea was that the pials had been in existence for a long time and were recently repaired and improved and that even if there was an encroachment on a portion of the lane, the plaintiff did not suffer any special injury thereby. The defendants also pleaded that the suit was not maintainable for want of sanction of the Advocate-General under sec. 91 Civil Procedure Code and also because the remedy of the plaintiff was by way of execution of the decree in O. S. No. 287 of 1927. The trial court dismissed the suit holding that the lane was a public highway, that the plaintiff s complaint was that the defendants action constituted a public nuisance, that there was no proof of special damage to the plaintiff and that the suit was unsustainable in view of Sec. 91 Civil Procedure Code. The lower Appellate Court found that the construction of the pials was recent, that the pials encroached upon the lane and rendered it difficult for double bullock carts to run into the compound of the plaintiff s house. Following the decision of the Madras High Court in Murugesa Mudali v. Arunagirimudali the lower appellate court found that the infringement of the right of way of the residents over the suit lane could be prevented at the instance of the villagers affected without proof of special damage and without complying with Sec. 91 Civil Procedure Code. Sri K. B. Krishnamurthy contended that the decision of the lower appellate court was erroneous and that Murugesa Mudali v. Arunagiri Mudali, subbamma v. Narayanamurthi and Muniswami v. Kuppuswami, all of them being decisions of single judges, were wrongly given. He argued that the lane was a highway, that the fact it was situated in a village did not make it any the less a highway, that there was no special damage to the plaintiff caused by the pials erected by the defendants and that the suit was unsustainable. Reference was made to the decisions of the several High Courts in support of his contention.

( 2 ) THE questions that call for an answer are whether the act complained of is a public or private nuisance and if it falls under the former category, whether the plaintiff has suffered such damage as entitles him to sue without sanction under Sec. 91 Civil Procedure Code. Sec. 91, to quote its heading, deals with "suits relating to public matters" that is to say, suits brought to vindicate a public right. An obstruction to a public thoroughfare or public street by a construction raised on any part of it is a public nuisance. The fact that the encroachment still leaves a width equal to the narrowest portion of the road or street as in the present case, does not make it any the less a public nuisance. If the lane in question is a higvvay as contended by th

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