Wadsworth, J.

1. The plaintiffs sued for a declaration that there was a public path running between the house belonging to the third plaintiff and the house belonging to the defendants and for an injunction requiring the defendants to remove the wall obstructing this alleged path. The trial Court found that, though there was no proof of a public path, there was a path common to the third plaintiff and the defendants measuring 3i feet in width and granted a declaration and injunction accordingly. The learned District Judge on an appeal by the plaintiffs held that there was a public path, that it was 8 feet in width and that there was no objection to the frame of the suit. Defendants therefore appeal.

2. The main question in appeal is whether the plaintiffs can maintain the suit for establishing a public right of way and removal of an obstruction which constituted a public nuisance, without the sanction of the Advocate-General under Section 91 of the Code of Civil Procedure and without proof of special damage. Undoubtedly, according to the view held by this Court in the past, such a suit would not lie. I have been referred to the rulings in Hussain Sahib v. Narasimhappa (1912)2