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Bhawan Singh Vs. Narottam Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All444
AppellantBhawan Singh
RespondentNarottam Singh and anr.
Excerpt:
public thoroughfare - nuisance--private action in respect of--damage in common with others--no special damage--mandatory injunction--suit for--maintainability of. - - it is a well-known rule that a private action cannot be maintained in respect of a public nuisance save by a person who suffers particular damage beyond what is suffered by him in common with all other persons affected by the nuisance (pollock on torts, vii edn. on this ground the plaintiff's suit must fail and has been rightly dismissed......the defendants, zamindars, for demolition of certain constructions alleged to have been made on a public thoroughfare and for the widening of that thoroughfare for the passage of carts. the court of first instance decreed the claim but the lower appellate court has dismissed it. it was found by the court of first instance, and it is admitted by the learned vakil for the appellant, that the pathway in question is a public thoroughfare. the alleged obstruction to it is therefore a public nuisance. it is a well-known rule that a private action cannot be maintained in respect of a public nuisance save by a person who suffers particular damage beyond what is suffered by him in common with all other persons affected by the nuisance (pollock on torts, vii edn., p. 395). it is not alleged in.....
Judgment:

Banerji, J.

1. The suit which has given rise to this appeal was brought by the plaintiff, who is a tenant of the defendants, zamindars, for demolition of certain constructions alleged to have been made on a public thoroughfare and for the widening of that thoroughfare for the passage of carts. The court of first instance decreed the claim but the lower appellate court has dismissed it. It was found by the court of first instance, and it is admitted by the learned Vakil for the appellant, that the pathway in question is a public thoroughfare. The alleged obstruction to it is therefore a public nuisance. It is a well-known rule that a private action cannot be maintained in respect of a public nuisance save by a person who suffers particular damage beyond what is suffered by him in common with all other persons affected by the nuisance (Pollock on Torts, VII Edn., p. 395). It is not alleged in this case that the plaintiff has suffered any particular damage. On the contrary, it has been found by the lower appellate court that there is a way across the waste land lying to the south of the defendant's house for the passage of the plaintiff's carts. So that it cannot be said that the plaintiff has sustained any particular damage. This being so the plaintiff is not entitled to have the alleged nuisance removed. On this ground the plaintiff's suit must fail and has been rightly dismissed. I dismiss the appeal with costs.


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