S.A. Bobde, J.

1. 1. Heard Shri Paunikar, the learned counsel for the Petitioner, Shri Doifode, the learned A.G.P. for the State and Shri Dharmadhikari, the learned counsel for the respondent Nos. 2 and 3.

2. 2. This second appeal is preferred by the appellant-original plaintiff. His suit is for permanent and mandatory injunction directing the respondent Nos. 2 and 3 to remove the encroachment, which had been decreed by the Trial Court, and has been set aside by the lower Appellate Court. Hence, this second appeal.

.3. The substantial question of law is formulated as under:--

."Whether in absence of special damages; the plaintiff is entitled to maintain a suit for mandatory and permanent injunction for removal of encroachment?"

.4. The appellant and the respondents are the residents of

.Sindhi Colony, Desaiganj. This colony, which has been established for refugees, who migrated from Pakistan in the year 1948. The appellant claims to be an allottee of Plot No. 13, in that colony. The appellant Nos. 2 and 3 are brothers, who are in occupation of plot No. 9. The appellant filed a suit seeking a decree for permanent injunction restraining the defendants from making further construction by way of encroachment, and for mandatory injunction to remove the existing construction, which is an encroachment.

3. 5. According to appellant, the respondents have made an encroachment and constructed upon the public road, which is shown in red colour and demarcated by the alphabets A, B, C, D in the map filed along with the plaint. According to appellant, who is neighbour of the respondents, this encroachment made movement in the ward difficult. He therefore, sought mandatory injunction for removal of this encroachment. The Trial Court found that the appellant is not the owner of plot No. 13, as alleged by him. The learned Trial Judge however, found the appellant has proved that the defendant Nos. 2 and 3 have encroached upon the public road in carrying out the layout particularised by the alphabets A, B, C, D in the plaint map. The Trial Court however, found the appellant has not proved that the encroachment made his own movement difficult in the said ward. However, there is a clear finding on the basis of evidence on record that there is an encroachment. The evidence includes notices issued by the Naib Tahsildar, for removal of encroachment. The Trial Court found that the appellant is entitled to all the reliefs claimed by him.

4. 6. Having regard to the fact that the plaintiff is resident of plot No. 16, the Trial Court granted relief of permanent as well as a mandatory injunction.

5. 7. Aggrieved by the judgment and decree dated 7th March, 1983 of the Trial Court, respondent preferred an appeal before the Additional District Judge, Chandrapur. The learned lower Appellate Court agreed with the Trial Court that there was an encroachment by defendant Nos. 2 and 3 upon the public road in the colony layout particularised by alphabets by letters A, B, C, D. However, merely because the appellant has not proved any special damage to him, the appellate Court reversed the judgment and decree of the Trial Court granting permanent and mandatory injunction. The other reason as to why the appellate Court has reversed the judgment and decree of the Trial Court is that the plaintiff himself was found to have blocked the southern road by making construction thereon. Since the plaintiff himself was responsible for encroachment, the lower Appellate Court found him disentitled for injunction.

.8. Having heard the learned counsel appearing for the respective parties, I find that the judgment of the lower appellate Court is wholly unsustainable in law. Though the lower appellate Court has not said in so many words, it found that the plaintiff has no locus to maintain the suit for removal of encroachment on public road, because he has not suffered special damages. In doing so, it appears that the lower Appellate Court has strayed from the law. In fact, the