A member of the public has a right to pass over public streets maintained out of municipal or public funds and can file a suit for establishing his rights over a public street without proving special damage.

Rajendra Nath Mittal, J.

1. This second appeal has been filed by the plaintiff against the judgment and decree of the Senior Subordinate Judge, Hoshiarpur, dated 3rd December, 1974.

2. Briefly, the case of the plaintiff is that the site marked ABCD shown in red colour in the plan Exhibit P.W.11/1 was not owned by any individual. It vested in the Municipal Committee and was being used by the public as a passage. His house was near it and he was also using it as such. It was under the management and control of the municipality and was, therefore, a public street. It is further pleaded that defendant No. 1 obstructed the plaintiff from using it, which he has a right to use. Consequently, the plaintiff filed a suit for permanent injunction restraining the defendants from obstructing him from using the street.

3. The suit was contested by the defendants who controverted the allegations of the plaintiff. Defendant No. 1 inter alia pleaded that the property in dispute was not a public street and that it was owned by him. He also took same other pleas but they do not survive now. The other defendants also took the same pleas.

4. Mr. H.S. Khushdil, Subordinate Judge, held that the property was a public street and that it was not owned by defendant No. 1. Consequently, he decreed the suit. Amin Chand defendant went up in appeal before the Senior Subordinate judge, who affirmed the finding of the trial Court that the property was a public street but reversed it with regard to the other matter and held that it was owned by defendant No. 1. He found that the following issue had not been decided by the trial Court :-

Has the plaintiff no locus standi to sue even if the road is proved to be public street ?

Consequently, be remanded the case to the trial Court for deciding the said issue. The learned trial Court after remand, held that the plaintiff had locus standi to file the suit. In view of that finding, the suit of the plaintiff was again decreed. Amin Chand defendant filed an appeal against the judgment and decree of the trial Court before the Senior Subordinate Judge, Hoshiarpur that the plaintiff failed to prove special damage and thus had no locus standi to institute the suit. In view of that finding, he allowed the appeal and dismissed the suit. Ram Parkash has come up in second appeal to this Court.

5. The only question that arises for determination is as to whether the plaintiff has got a right to institute the suit. It is not disputed that the property is a public street. The word `public street has been defined in sub-clause (b) of clause (13) of Section 3 of the Punjab Municipal Act, 1911, as follows :-

"Public Street, shall mean any street - (i) heretofore levelled, paved, metalled, channelled, sewered, or repaired out of municipal or other public funds, unless before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor; or

(ii) which, under the provisions of section 171, is declared by the committee to be or under any other provision of this Act becomes a public street."

From a reading of the sub-clause, it is evident that the public streets are maintained out the municipal or public funds. Therefore, the members of the public have a right to pass over such streets and if any member is obstructed to do so, he can bring a suit for establishing his rights.

6. Now, it is to be seen whether a member can file a suit without proving special damage. The counsel for the respondents submits that in view of section 91 of the Code of Civil Procedure, the suit cannot be filed by the plaintiff unless special damage is proved. In order to determine the matter, it will be advantageous to read section 91 which is as follows :-

"91. Public nuisances and other wrongful acts affecting the public. - (1) In the case of a public nuisance or other wrongful act affecting, or likely t