JUDGEMENT :- This is a defendants' appeal, and arises out of a suit for injunction and removal of constructions.

2. The parties are the residents of village Datt Nagar Bisan. Pargana and District Unnao Dhurpat Singh and Bahrain Singh filed the suit alleging that there existed a pathway in village abadi plots Nos. 102 and 111, and it had been used by the inhabitants of the village and the public, from times immemorial. On 15th, September, 1955, the defendants wrongfully blocked the passage by making certain unauthorised constructions. On these grounds, they claimed a decree for removal of the complained of constructions, and perpetual injunction restraining the defendants from causing any obstruction in the use of the passage.

3. The defendants contested the suit on a variety of grounds. On the pleadings of the parties, the learned Munsif framed the following issues.

1. Whether there exists any public way as alleged by the plaintiffs ?

2. Whether the defendants have caused any obstructions as alleged ?

3. Whether the plaintiffs have suffered any substantial and particular damage ?

4. Whether the suit is within time ?

4. The Munsif found that there existed a public pathway in the village, and the defendants had obstructed it, by making certain new constructions He further held that the plaintiffs were not entitled to any relief till they proved any special or substantial damage, which in the instant case they had miserably failed. On these findings, he refused to grant any relief. Being aggrieved with that order, the plaintiffs went up in appeal. The learned Civil Judge disagreed with the view of the trial court, and found that there existed an old village pathway and the plaintiffs were fully entitled to get the relief, without proving any special or substantial injury. In this view, he decreed the plaintiffs suit in toto. Against that order, the present appeal is directed.

5. I have heard the learned counsel for the appellants. Nobody, however, appeared from the side of the respondents in spite of sufficient notice.

6. The only question raised on behalf of the appellants is that the lower appellate court erred in building up a new case that the passage was really a village pathway, when the plaintiffs themselves had claimed it a public way. This contention of the appellants, has little substance.

7. It was specifically set out in the plaint that the parties were the old residents of the village, and before the abolition of the zamindari they were also the zamindars. It was specifically alleged that there existed an old passage over the village abadi plots Nos. 102 and 111 and it was used by the inhabitants of the village and the public, for taking their bullock carts and cattle from times immemorial. It was said that the plaintiffs as the inhabitants of the village had a right to use the passage which had been wrongfully obstructed by the defendants, by making certain unauthorised constructions. From all these allegations, the clear intention of the plaintiffs was that they are resident of the village, claimed its user as a village pathway. Even if they loosely described the passage as public pathway, that would not alter its real character. It could not be disputed that the passage existed in the village where the parties resided. Even if the passage running through the village was considered as a part of the longer route extending beyond its precincts and thus a part of the public highway, it was, so far as the village itself was concerned, only a village path, in which residents of the village and neighbourhood were directly interested. The residents of the village could claim special amenities not open to those others in respect of that part of the passage which ran from one end of the village to the other.

The courts below have recorded a concurrent finding that the passage was used by the residents of the village for taking their carts and cattle from times immemorial. Naturally, the outsiders would not use the village pathway so

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