JUDGMENT

John Edge, Kt., C.J. - In this case the plaintiff brought an action claiming to have a chabutra or building which had been erected by the defendant on one of the village roads removed. The plaintiff is the zemindar. The road in question is a katcha road used by the village and over which the public have a right-of-way. The Lower Appellate Court found that the road passed through and on the land which belonged to the plaintiff, zemindar, and that it had been dedicated as a road for the use and convenience of the general public. The Lower Appellate Court gave a decree for the removal of the chabutra, and the defendant has appealed.

2. Pecuniarily the plaintiff has not suffered any greater damage than anyone of the public, as has been found. It is contended here, on the authority of two cases decided in Calcutta and one case decided in this Court, that the action is not maintainable without proof of special damage. In the first case, Baroda Per shad Mustafi v. Gora Chand Mustafi 12 WRCR 160 Sir Barnes Peacock held that the person who had dedicated the road could not, any more than any other member of the public, maintain an action for the obstruction of the highway without showing special damage. It is quite plain that according to the law of England and the law here, as laid down in these cases, a member of the public cannot maintain an action of the kind without proving a special injury to himself beyond that suffered by the public. I do not think that this rule of law applies to the case of a zemindar, who, or whose predecessor in title, had dedicated to the public the road over the zemindar's land. When a land-holder in England or zemindar here gives the public a right of road or way over his land, he only dedicates or gives the public a right to use the road for the purposes of a road. He does not give the public or any one else a right to interfere with the soil of the road, as for instance, by building a house upon it or turning the road into a garden. In the case decided by Sir Barnes Peacock that learned Judge seemed to think that if the plaintiff in that case were allowed to maintain his action, all the public would have a general right to maintain an action against the defendant. I think that learned Judge overlooked the distinction between the rights of the public and the rights of the zemindar. The right of the public to go along the road and use the road as a road was a right which the zemindar also had. The zemindar beyond the public had a right to the soil in the road which he had never given to the public, so that, in an action of this kind, the zemindar is suing not as a guardian of the public as was suggested by Sir Barnes Peacock, but in respect of an interference of his own rights of property.

3. The Other Calcutta case, Bhugeeruth Dass Koyburto V; Chundee Churn Koyburto 22 WRCR 462 is merely an authority because it follows the rule laid down by Sir Barnes Peacock. In the case of Karim Baksh v. Budha ILR 1 All 249 this Court merely applied the rule of English law, that is, that an ordinary member of the public could not maintain an action for the obstruction of a highway unless he has sustained some damage peculiar to himself. The rule of English law is one founded on common sense. It is that when a road is dedicated to the public, the public have only got a right to Use the road for the purposes for which it has been dedicated, let it be a cart road, or a road for riding on, or a road for walking on.

4. I asked Mr. Madho Prasad who appears for the appellant whether, if in this case the defendant had built a row of houses on the site of the road, the zemindar could not maintain his action. He was compelled to say that he could not. I asked him whether if the defendant bad ploughed up the road and converted it into a grove, or a market-garden, the zemindar could not maintain the action, and he said that he could not. The authorities which would apply in England in a case of this kind are to be found in th