JUDGMENT :- This is a plaintiff's second appeal arising out of a suit for injunction.

2. The plaintiff has his house in Mohalla Aliganj in the city of Banda, abutting the land in suit which according to plaintiff is a lane or public thoroughfare. The defendant No. 2, namely, the Municipal Board, Banda made constructions adjoining the eastern wall of the plaintiff's house. Hence, the appellant prayed for the removal of the wall made by the Municipal Board and also for a prohibitory injunction restraining the Board, for making constructions on the 10 feet land towards the last of the plaintiff's house. The suit was dismissed by both courts. The trial court recorded a finding that the plaintiff had failed to establish that there was a lane to the east of his house. This finding was reversed by the lower appellate court which came to the conclusion that the plaintiff had proved the existence of a lane to the east of his house but it agreed with the court of first instance on the point that the plaintiff had not been able to prove any special damage and hence the suit was barred under Section 91 of the Civil Procedure Code. Aggrieved by that decree the plaintiff has come in Second appeal to this Court.

3. The contention of the appellant was that on the facts of this case special damage should have been presumed. The learned counsel for the respondents submitted that the rights claimed by the plaintiff were wholly unfounded inasmuch as the land in question had not been proved to be a lane or a public thoroughfare. He referred to the concluding portion of the judgment of the lower appellate Court and said that on an erroneous impression that the trial Court had recorded a finding that the existence of the lane had been proved the lower appellate Court made an observation that the said land was a lane. According to his submission this was merely an ipse dixit of the appellate Court and was not based on an appraisal of evidence. It was, therefore, not binding on this Court in second appeal. On the other hand, he placed reliance on the categorical finding recorded by the trial Court that the plaintiff had failed to prove the existence of the lane to the east of his house. It was further argued on behalf of the respondents that since the plaintiff was unable to prove that his house abutted lane or a public thoroughfare, no right accrued to him of complaining against the proposed construction of structures already made by the Municipal Board.

4. The first question, therefore, which arises is as to whether the plaintiff had succeeded in proving the existence of a lane or public thoroughfare to the east of his house which was admittedly constructed afresh in the year 1964. I am unable to accede to the submission of the learned counsel for the respondents that the lower appellate Court omitted to record a finding after evaluating the evidence on the question of existence of a lane. The observation contained in the concluding part of the judgment of the lower appellate Court was made in connection with the finding of the trial Court with regard to the suit being barred by Section 91 C. P. C. Since the trial Court had held that the suit was barred by Section 91, C. P. C. it necessarily implied that the land in question had been held to be a public thoroughfare and the plaintiff's case be treated as one of public nuisance. It was in connection with this aspect of the case that the lower appellate Court made the observation that according to the trial Court the land had been proved to be a lane. I find that the lower appellate Court applied its mind to this question and after evaluating the evidence of the parties came to a definite conclusion that there was a lane towards the east of the plaintiff's house. Of course, the lower appellate Court held that the plaintiff had failed to prove that he had any doors or windows towards the east of his house meaning thereby that prior to the year 1964, in which year the plaintiff purchased the house and bui

Click Here to Read the rest of this document