( 1 ) THE short but interesting question of law that arises in this Second Appeal is whether a member of the public is entitled without proof of special damage to maintain an action for removal of an encroachment on a public street without obtaining the consent of the Advocate General under section 91 of the Code of Civil Procedure. The plaintiffs are Patidars residing in the town of Umreth and are Managers of a Dharamshala belonging to the Patidar community, which abuts on a public street situate in what is known as Bordi Falia in Umreth. According to the plaintiffs since times immemorial the Patidars of the town of Umreth have been taking their carts along the said public street and using the said public street for passing and repassing. On 6th September 1954 however defendant No. 2 who owns a house with its back abutting on the said public street obtained the permission of defendant No. 1 being the Municipality for the town of Umreth and after obtaining such permission plastered the back wall of the house thereby encroaching about 3 on the said public street and also constructed an over-hanging step which constituted a further encroachment on the said public street to the extent of about 9. The plaintiffs alleged that as a result of this act on the part of defendant No. 2 irreparable injury was caused to them to the user of the Dharamshala by the Patidars and to the right of way of bullocks carts etc. along the said public street. The plaintiffs therefore filed a suit against the defendants for a mandatory injunction directing defendant No. 2 to remove the encroachment caused by the plastering of the wall as also the over-hanging step constructed by him at the back of the house and also for a prohibitory injunction restraining defendant No. 2 from putting up any construction or over-hanging step which would cause obstruction to the exercise of the right of way of the plaintiffs. Though the reliefs sought were against defendant No. 2 defendant No. 1 was also impleaded as party defendant to the suit since the plastering of the wall and the putting up of the over-hanging step had been done by defendant No 2 after securing the requisite permission of defendant No. 1. The suit was resisted by both the defendants. Various contentions of a preliminary nature were taken on behalf of defendant No. 1 but they do not survive for consideration in view of the fact that the suit as against defendant No. 1 has been dismissed as a result of the decree passed by the learned trial Judge and confirmed by the learned Assistant Judge in appeal and no second appeal has been filed against that part of the decree on behalf of the plaintiffs. Defendant No. 2 also raised various points in answer to the suit one of which was that the suit was not maintainable by the plaintiffs inasmuch as it was filed by them without obtaining the consent of the Advocate General under sec. 91 of the Code of Civil Procedure. The issue arising on this point was along with other issues tried as a preliminary issue. The learned trial Judge came to the conclusion that the encroachment complained of by the plaintiffs being a public nuisance and no special damage being proved the plaintiffs were not entitled to maintain the suit complaining of the encroachment without the consent of the Advocate General under section 91 of the Code of Civil Procedure. The learned trial Judge in this view of the matter dismissed the suit with costs. The plaintiffs thereupon preferred an appeal in the Court of the District Judge Nadiad. The learned Assistant Judge agreed with the learned trial Judge to this extent namely that no special damage was alleged or proved by the plaintiffs but he differed from the learned trial Judge on the main question involved in the determination of the preliminary issue and held following a decision of the Madras High Court in Munusami v. Kuppusami ( A. I. R. 1939 Madras 691 ) that an individual member of the public was entitled to maintain a