Section 91 CPC is not applicable to a suit for removal of obstruction to a village pathway, as it is not a public nuisance or wrongful act affecting the public.

( 1 ) THIS is an appeal against the judgment and decree passed by the Additional district Judge, Guna in Civil Appeal No. 100-A/70, confirming the judgment and decree passed by Shri N. K. Jain, Civil Judge Class II, Guna in Civil Suit No. 62a/65.

( 2 ) THE facts of the case, briefly stated, are that the plaintiff-respondent filed a suit for permanent injunction and demolition of a wall against the defendant/appellants. The plaintiff alleged that there was a partition between him and his brother Puran and in the share which fell to his brother, there was a door opening towards the eastern side which was used by him as a passage, but after partition, plaintiff opened a door on the northern side which opens towards the village pathway. It was alleged that on 12-9-1965, the defendants constructed in front of the door a Chabutara and thereby obstructed the way. The plaintiff also alleges that the door was used for taking his cattle as well as this was an access for him to the village pathway and as it was closed, he is suffering inconvenience.

( 3 ) THE defendants contested the suit. The fact of partition between the plaintiff and his brother was denied. It was also said that the opening of the door on the northern side was illegal and that the land in front of the door was not a public path, but it belonged to the defendants. The defendants also asserted that the construction is already completed and that construction is on their own land and as such, the plaintiff has no right to demolish it. It was also submitted that section 91 of the Code of Civil Procedure is applicable to the present case and unless and until the permission of the Advocate General is taken for filing the suit, the suit itself is not competent.

( 4 ) AFTER taking evidence, the trial Court decreed the suit. There was an appeal. The appeal also met the same fate. This is a second appeal.

( 5 ) THE first submission made before me was that the case is covered under section 91 CP. C. and as no permission was taken by the plaintiff from the advocate General, the suit is incompetent. I do not accept this proposition of the learned counsel. If the case is with respect to public nuisance or wrongful act affecting or likely to affect the public, then in a suit for declaration and injunction permission from the Advocate General is necessary. It is not a case of public nuisance or other wrongful acts affecting the public. In Sri Ram Singh v. Patti, AIR 1968 All 18, it was held as under:--

"a village pathway is not a public highway and no special damage need be proved in a suit for removal of an obstruction to the former. Wrongful obstruction by unauthorised construction amounts to infringements of the rights which the residents of the village enjoyed, and these infringements cause them special damage. Even if the plaintiff loosely described the passage as public pathway and even if the passage running through the village was considered as a part of the longer route extending beyond its precincts it is so far as the village itself is concerned, only a village path, in which residents of the village and neighbourhood are directly interested. The residents of the village can 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. "

Similarly, I may refer to Ramabrahma Sastri v. Lakshminarasimham, AIR 1957 andh Pra 44. It also deals with a case of public nuisance. It is held in that case as under:--"a road is either public or private. A road or a street whose user is limited to the inhabitants of a particular village or people who visit them on business or otherwise is not a public road. A public highway is dedicated not to a limited section of the public but for all subjects, that is to say, the public at large. A road running through a village is in one sense a village road but it may nevertheless be a highway if it has been dedicated to the public at large as in the case of