Sanction of Advocate General necessary.

This second appeal arises out of a suit for a declaration of the plaintiff’s right of way across a public street, for a direction to the defendants to remove the obstructions put up by them on the street, and for a permanent injunction to restrain the defendants from obstructing the plaintiff in using the public street as such. The only answer to the suit which requires consideration in this second appeal is that it was not maintainable without the consent of the Advocate-General in the absence of any special damage sustained by the plaintiff. The defence was rejected by the District Munsif of Sholinghur and the suit decreed on his finding that the plaintiff had suffered special damage. This finding was reversed on appeal by the learned Subordinate Judge of Chittoor who accordingly dismissed the suit. The plaintiff appeals.

The plaintiff and certain others are residents of the Big Street in Narasinga-puram, Arkonam taluk. The backyards of their houses reach up to the Othavadai street of the same place marked A B C D in the plan attached to the plaint. Some owners have doorways leading to Othavadai street from their backyards and some others have not. likewise, some of them have pits in that street for their back,yard drainage water. The defendants who are owners of houses situate to the south of and facing Othavadai street happened to have constructed mud walls and put up fences and caused obstruction to the plaintiff and others owning houses with their backyards reaching up to Othavadai street in the matter of their taking cattle, manure, hay, etc., from their backyards to their fields. The plaintiff on these allegations filed the suit for the reliefs mentioned above without obtaining the sanction of the Advocate-General or framing a suit as one in a representative capacity under Order 1, rule 8, Civil Procedure Code. The learned District Munsif took the view that the action complained of against the defendants caused special damage to the plaintiff for the reasons which he gives in paragraph 8 of his judgment. Says the learned District Munsif:

".....I am satisfied that the plaintiff has been using this street to take hay and manure from his backyard and that he has also used the same to take his cart, and for other purposes spoken to by him and his witnesses. There is little doubt that similarly other persons in the plaintiff’s row-have used the suit street and plaintiff has undoubtedly suffered by the obstruction caused by the defendants in as much as he is prevented from using the suit street to go from his backyard towards east to his lands. To take manure from his backyard to the land to the east of the suit street, plaintiff must take a detour, which certainly would justify him in saying that he has suffered special damage. The defendants’ case is that the plaintiff can still use his backyard through Ediga street, but it depends upon how far 1st defendant is going to remain without enclosing that portion of the street into his backyard and it must put the plaintiff to a lot of inconvenience, I have no hesitation in coming to the conclusion that by defendants’ action, plaintiff has suffered something that is special to him and not shared by others or common to all. It is well known that in the villages, if their backyards abut a street, the owners use their backyards freely only from that street, and it is a very valuable right which is curtailed by the defendants’ action. Further if the plaintiff wants to construct a small building in the backyard with frontage along the suit street, he cannot do so and it would be very serious loss to him. I therefore hold that the plaintiff has proved special damage."

In the result, the learned District Munsif decreed the suit as above stated.

On appeal taken by the defendants to the Subordinate Judge of Chittoor, it was held by him that on the facts found by the learned District Munsif the plaintiff must be taken to have suffered no more or further damage than the other residents