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 it was not a public pathway, that it was intended to enable the people of the village to reach the well W in the plaint plan for getting fresh water. His view was that notwithstanding the right possessed by the residents of the village the property continued to be the property of the original owners and that therefore the plaintiffs had no right of action. He, however, found that there was an encroachment. Following the decision of this Court in Munisami v. Kuppuswami1, the learned District Munsiff held that it was unnecessary for the plaintiffs to prove any special damage in order to maintain the suit as after the decision of the Privy Council in Manzur Hasan v. Mohamed Zaman2, the rule of English common law that one member of the public cannot maintain an action for removal of obstruction of a highway without proof of special damage over and above the damage suffered by others did not apply to India. In the result the suit was dismissed on the ground that the right of action to remove the wall and the encroachment vested in the original owner and that the plaintiffs had no locus standi to institute the suit.

Against this decision the plaintiffs preferred an appeal to the Subordinate Judge of Nellore who reversed the decree of the learned District Munsiff and decreed the suit. He found agreeing with the District Munsiff that there was an encroachment on the pathway. He differed from the District Munsiff in his view that the pathway was not a public pathway. According to the learned Subordinate Judge the plaintiffs were entitled to sue because they also sustained special damage along with the other residents of the village.

Against this decision the first defendant preferred this second appeal. It was contended on behalf of the appellant that the finding of the learned Subordinate Judge that there was an encroachment was not correct; that on the finding of the learned Subordinate Judge that the pathway was a public pathway the suit was not maintainable without the sanction of the Advocate-General under section 91 of the Civil Procedure Code or in any event without proof of special damage by the plaintiffs. According to the appellant the finding of the learned Subordinate Judge on the question of special damage amounted to no more than that the plaintiff also suffered damage along with others and not a damage suffered by the plaintiffs over and above the damage suffered by others.

The finding of the Court below regarding encroachment by first defendant in my opinion is correct and is supported by the oral and documentary evidence on record. The recital in Ex. D 3 under which the first defendant acquired title refers to the pathway which was left for the benefit of the public for fetching water from the well. On the evidence the pathway was clearly intend