Norman Macleod, Kt., C.J.
1. The plaintiff filed this action to have a declaration that the land described in the plaint was street land and to obtain a mandatory order directing defendant No. 1 to remove an otla made by him on the land. The Municipality of Nadiad city, in which the property was situated, was made a party defendant. Defendant No. 1 asserted that his otla existed since a long timti; that plaintiff had no interest in the land; that the land wan held to be of his ownership by the City Survey Officers and that no damage was caused to the plaintiff.
2. The trial Court held that the suit land was a public street and that plaintiff was entitled to sue to have the encroachment made by defendant No. 1 thereon removed.
3. The first defendant appealed. In his judgment, the Judge said:-
Assuming that the otla land forms part of a public street land, the question is whether defendant No. 1's act amounts to a public nuisance. I think, it does, vide I. L, R, Mad. p. 433 and 24 Bom. L. R. 807 which lay down that appropriation of a part of n public road or building on it), amounts to a public nuiaanoe. Plaintiff is, therefore, not competent to sue without complying with the provisions of Section 81 of the Civil Procedure Code.
4. Accordingly he allowed the appeal and reversed the decree of the trial Court.
5. The appellant contends that although the otla, was a public nuisance, the plaintiff was entitled to an injunction restraining the defendant from using that part of the road occupied by the otla, without proving special damage. He relies upon the decision of this Court in Baslingappa Parappa, v. Dharmappn Basappa I.L.R. (1910) 34 Bom. 571 : 12 Bom. L.R. 586 .
Plaintiffs sued on behalf of themselves and of other members of a religious community to have a declaration of their right of marching in procession with a oar along it particular public road to certain temples and for an in -junction restraining the defendants from interfering with the plaintiffs. The defendants contended that the plaintiffs had no right to march along the road. The lower Courts dismissed the suit on the ground that the road being public the plaintiffs could not sue unless special damage were shown and proved.
On second appeal by the plaintiffs it was held, reversing the decree and allowing the claim, that the suit was not for removal of a public nuisance but for a declaration of the right of an individual community to use the public road. Every member of the public and every sect has a right to use the public streets in a lawful manner and it lies on those who would restrain him or it be show some law or custom having the force of law abrogating the privilege
6. The question here is an entirely different one. The plaintiff does not seek for a declaration that he has a right to use a public road, nor can he say that such a right has in any way been obstructed. But he wishes to make a claim to a right to pass over the particular portion of the road occupied by the otla, though his right to use the rest of the road has not been interfered with. He cannot sustain the suit, as he has not been able to show that he is unable to use the road, nor can he seek the assistance of the Court to get the otla removed, merely because he wants to walk over that portion of the street occupied by the otla, unless he proves special damage,
7. The appeal is, therefore, dismissed with costs.