R. Chandra, J.
1. 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 defedants 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 zamin-dari 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 bythe defendants, by making certain unauthorised constructions. From all these allegations, the clear intention of the plaintiffs was that they are residents 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 frequently and in the manner enjoyed by its inhabitants. It is well settled that different considerations would arise in connection with a public highway as distinguished from a village pathway though the latter may form part of the former In Jatindra Nath Mullik v Satya Kinkar Sain : AIR1938Cal366 the facts showed that the village pathway was connected with other routes at one end of the village, and yet Mukh-erjea J., emphasising the distinction between a public highway and a village path and pointing out the difference between the incidents applicable to both held the same only to be a village path
8. Again. Bajpai J. in Lok Nath Tewari v Jadunandan Tewari. : AIR1933All919 observed that, although a public pathway was alleged in that case to have been infringed by the defendant, it was more or less a village path, wherein the residents on either side and round about might be considered to have a right acquired by long user of passing to and fro and that it was not necessary to prove any special damage before an action for the avoidance of the obstruction was raised The learned Judge pointed out that the obstruction there was to the free passage of bullock carts, loaded animals, horses and elephants on festive occasions and further that 'if a proof of special damage were necessary, it is clear that a very small amount of inconvenience would entitle the plaintiff to the relief claimed'
9. In the Full Bench case of Chuni Lall v. Ram Kishen Sahu. 1LR 15 Cal 460 (FB), Wilson J. made the following observation which has now become almost classical:
'By the common law of England there are three distinct classes of right of way and other similar rights. First, there are private rights in the strict sense of the term vested in particular individuals or the owners of particular tenements and such rights commonly havetheir origin in grant or prescription. Secondly there are rights belonging to certain classes of persons, certain portions of the public such as freemen of a city, the tenants of a manor or the inhabitants of a parish or village Such rights commonlv have their origin in custom Thirdly there are public rights in the full sense of the term which exist for the benefit of all the Queen's subjects, and the source of these is ordinarily dedication.'
10. In Ram Kali v Munna Lal. : AIR1939All586 the learned Judges adopted the view expressed in the earlier case, and further relied on the case of Brockle-bank v. Thompson, (1903) 2 Ch 344=72 LJ Ch 626 in which it had been observed that:
'Where there is the intention to allow not the public generally but merely visitors to or traders with the people of the village or ways allowed to be used by villagers to go to church or market or the common fields of the village, such ways are not regarded as public ways, but private ways '
This clearly lays down the distinction between a public highway and a village pathway. In the latter class of cases the requirements of the plaintiff proving special damage has never been insisted upon It is well settled that a village pathway is not a public highway and that no special damage need be proved in a suit for removal of an obstruction to the former. It is not disputed that the passage has been substantially obstructed by the unauthorised constructions recently made by the defendants They clearly amounted to infringement of the rights which the plaintiffs as residents of the village essentially enjoyed and those infringements caused them special damage The position would not be in any manner affected by the mere fact that the other residents of the village had equally suffered by reason of the defendants' act. for the simple reason that the obstruction was on a village path, in which though the residents of that particular locality were commonly interest ed. each had a special right which was protected by Sub-section (2) of Section 91 of the Code of Civil Procedure, irrespective of the class of cases covered by Sub-section (1) The passage in question from the point of view of the plaintiffs and other residents of the village was essentially a village path raising entirely different consideration bearing on the plaintiffs' rights to claim a relief
11.For the reasons already given, 1 am satisfied that the plaintiffs specifically put forward their case in the plaint and no new case was built up by the court below The findings recorded by the Civil Judge are perfectly sound and need no interference
12. No other point was pressed
13. The appeal is devoid of merit, andmust fail. Accordingly, the appeal is dismissed As nobody appeared from the side of therespondents, no order is made for costs