A suit for removal of obstruction to a public road constituting a nuisance can be maintained by an individual member of the public without the sanction of the Advocate-General and even without proof of special damage.

JUDGMENT :

1. The main point argued in this case is that the suit instituted by the respondent for removal of obstruction caused by the appellant by a wall G.K. is not maintainable by reason of the failure to obtain consent in writing of the Advocate General.

2. The facts leading up to this appeal may be briefly stated. The plaintiff is the owner of land shown as A B C D E F in the plan annexed to the plaint while the defendant-appellant owns an adjoining land marked as N F L M in the plan. According to the plaintiff, the defendant encroached on a road poromboke marked as E G K L and constructed thereon the wall described above and thereby caused obstruction to the plaintiff in the enjoyment of the land belonging to him.

3. The defence was that he had not encroached upon road poromboke, that the wall in question had been in existence for several years and that in any event it did not cause any obstruction to the plaintiff as he could reach the road from his land through a path shown as E D C F.

4. The trial court dismissed the suit on the ground that the plaintiff had not acquired any easementary right to the land in question and that as the land belonged to the Government the Government was a necessary party and failure to do so was fatal to the suit. On appeal the judgment of the trial court was reversed by the Subordinate Judge. In his view, the Government was not a necessary party as the road in question was vested in the District Board which is impleaded as a party to the suit and that though the plaintiff had not established a right by way of easement he was entitled to the use of this road as a member of the public. In his opinion, the consent of the Advocate General was not necessary. The defendant being dissatisfied with this judgment has come up by way of a second appeal.

5. It is argued by Mr. Sripathirao that as the suit offends against the provisions of Sec. 92, it ought to have been dismissed and that in any event the suit was not sustainable without the Government being made a party thereto. In support of his first contention, reliance is placed on a judgment of Justice Viswanadha Sastry in Rambrahma Sastry v. Lakshminarasimha Sastry1. The passage in that judgment called in aid by the learned counsel is this:—

“A public highway is dedicated not to a limited section of the public but for all subjects, that is to say, the public at large. A road running through a village is in one sense a village road but it may nevertheless be a highway if it has been dedicated to the public, at large as in the case of trunk roads. I am humbly of opinion that apart from section 91 Civil Procedure Code and in conformity with its provisions, no action can be maintained by an individual against another for obstruction to a public highway without proof of special damage. This rule is founded on adequate reasons of public policy that a man who may have committed some public injury shall not be harassed by innumerable actions by persons who have not sustained any damage or injury peculiar to themselves”.

6. In that case, the learned Judge found that the land in which the houses of the defendant and the plaintiff were situated and over a portion of which the defendant put up a pial and caused obstruction to the plaintiff was not a public road and that in any event it was proved that an injury special to the plaintiff was caused by the action of the defendant.

7. It is argued that the observations extracted above govern the present case as the lower appellate court found that the road in dispute was a public road dedicated for the use of the public. In my opinion, the case cited does not help the appellant. The finding of the Subordinate Judge that it was a public road does not conclude the matter. In order to attract the provisions of S. 91 C.P.C. it should also be proved that the obstruction caused by the defendant constituted a public nuisance. It cannot be predicated that every obstruction on a road could be regarded as a public nuisa