The first defendant is the appellant in this second appeal. The suit was for a declaration that the portion marked KLMN in the plaint plan is a public pathway and for possession of a portion out of the same after ejecting the first defendant and for a mandatory injunction directing the first defendant to remove a wall which was constructed on the pathway and for other reliefs. The plaintiffs five in number, instituted the suit not only in their individual capacity but also on behalf of the other residents of the village of Kota in their representative capacity and obtained leave of the Court under Order 1, rule 8 of the Civil Procedure Code to institute the suit in that form.

The main contesting defendant in this suit was the first defendant. The second defendant remained ex parte. The first defendant contended that the pathway was not a “public” pathway, that there was no encroachment and that the suit was not maintainable without the sanction of the Advocate-General under section 91 of the Civil Procedure Code or at any rate without proof of special damage. The learned District Munsiff who tried the suit found that the pathway was set apart by two adjacent owners but that