T.S. Misra, J.
1. This appeal is directed against the judgment and decree passed by the appellate court below whereby the suit of the plaintiff was dismissed. Raja Syed Mohd. Saadat All Khan had tiled the suit alleging that he was the Zamindar of Mohal Abu Jafar in the city of Bahraich, that plots Nos. 6454, 6455 and 6456 of the First Settlement of 1857 lay in the said Mohal and were owned and possessed by him and that the Municipal Board, Bahraich, without any right threatened to make certain constructions over the plots in question. Hence the suit was initially filed on 25th October, 1962 for a permanent injunction to restrain the Municipal Board from making any construction on the said plots of land. However, during the pendency of the suit the Municipal Board constructed certain shops over the said land. The plaint was consequently got amended and a relief for delivery of possession by removal of the offending constructions was sought for.
2. The suit was contested by the Municipal Board on a variety of grounds. It was alleged, inter alia, by the Municipal Board that the offending constructions did not lie on the plots in question, that the land in suit had been a public street and was managed by the Municipal Board, Behraich, and that the ownership of the road and patri vested in the Municipal Board and it was within its right to make constructions. The trial court on the pleadings of the parties framed a number of issues. It held that the plaintiff was the owner of the plots in suit and the offending constructions lay on the same. It also found that the land in suit is a public road which vests in the Municipal Board, but as the land was not being used as public street but was used for other purposes, namely, for raising constructions thereon, the property in the land revested in the Zamindar, namely, the plaintiff. It, therefore, decreed the suit against the Municipal Board. An appeal was thereupon preferred by the Municipal Board in the court of the District Judge, Behraich. That appeal was ultimately heard and decided by the learned Civil Judge, Bahraich. The appeal was allowed and the suit was dismissed by the appellate court below. Aggrieved, the plaintiff filed this second appeal. During the pendency of the appeal Raja Syed Mohd. Saadat Ali Khan died and Kumari Aamina Saadat AH was substituted in his place as appellant.
3. On 13th February, 1978, this appeal was placed before me for hearing. When I heard this appeal, I remitted the following issue to the appellate court below for its findings:--
'Whether the constructions in dispute lie on any plot of Mohal Abu Zafar? If so, its effect?'
The appellate court below has remitted its finding dated 31st July, 1978 as below:--
'In view of the above discussion I am of the opinion that plots in suit previously existed in Mohal Mohammad Monisin. He executed will in favour of Abu Zafar. Hence after him Abu Zafar became its owner and it existed later on in Abu Zafar Mohal.'
Neither the appellant nor the respondent has presented any memorandum of objection to the said finding. I have gone through the finding returned by the court below and I find no reason to disagree with the same. It has been established that the plots in suit exist in Abu Zafar Mohal.
4. The plaintiff claimed a relief of injunction to restrain the defendant from making any construction on the land in dispute and also for a relief of demolition of the constructions which the defendants had already made on the said land alleging that the land belonged to him and he was the owner thereof. Both the courts below have, however, concurrently held that the land in dispute on which the alleged constructions have been mads by the defendant is a public street. This finding has been assailed before me on the ground that the courts below have not properly appreciated the evidence relating thereto. The finding that the land in dispute is a public street is a finding of fact. It cannot be interfered with in second appeal unless it is perverse or is based on no evidence or is such which no reasonable person can arrive at or is illegal. It is by now well-settled that howsoever erroneous a finding of fact may be it is conclusive in second appeal and is not liable to be challenged unless it is shown to suffer from any of the aforesaid infirmities. It is not open to me to enter on re-appraisal of the evidence. The finding that the land in dispute is a public street is, therefore, conclusive; in consequence the said land which is a public street vests in the Nagar palika for the purpose of maintaining it, controlling it and repairing it as a public street. It is not in dispute that the defendant Nagar Palika has put up certain constructions on the said land. Those constructions have obviously been made on a public street. The said public street cannot, therefore, be used as public street because of the obstruction so caused by the defendant. It can hardly be disputed that constructions, therefore, amount to a public nuisance. The learned counsel for the plaintiff appellant submitted that as the Nagar Palika has stopped using the land as public street and has raised constructions thereon, the land shall re-vest in the plaintiff. I am unable to accept the contention. The Supreme Court in the Municipal Board, Manglaur v. Mahadeo Ji Maharaj (AIR 1965 SC 1147) has observed that a public pathway vests in the Municipality by virtue of Section 116 (g), U. P. Municipalities Act but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights. The Municipality cannot put up the structures which it intended to erect on the vacant site as it could not be said that they were necessary for the maintenance or user of the road as a public highway. In that case the Municipality wanted to set up a statue of Mahatma Gandhi. It was held that the Municipality could not do so The act was unauthorised and the plaintiff, who was the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from, acting in excess of its rights. But the owner could not ask for possession of any part of the public pathway as it continued to vest in the Municipality. In view of this position of law, the plaintiff could certainly ask for an injunction to restrain the defendant from making any construction on the land in dispute but the plaintiff cannot ask for possession of any part of the land which is used as a public street.
5. The next question that arises immediately for consideration is whether the plaintiff can ask for demolition of constructions which have been made by the defendant on the public street. The law on the point is equally settled. Any person who has a house abutting on a public road or lane is entitled to access to the road or lane from the house and no person or authority can destroy that right. This right does not emanate from prescription or long user but from the fact that the house abuts on the public way. Hence, if an obstruction is made by any person or authority of such public way which affects the ingress or egress, special damage to the owner of the property must be presumed. In Mst. Bhagwanti v. Mst. Jiuti (AIR 1975 All 341) I had held that the defendant had by raising a construction on public road completely blocked the door of the plaintiff's house which abutted on it; hence the plaintiff had suffered inconvenience and, therefore, special damage in the circumstances of the case must be presumed. I had also observed that by means of this public nuisance special damage was caused to the plaintiff and, therefore, she was entitled to maintain the suit for demolition of the constructions in question and for the injunction prayed for.
6. Section 91 of the Code of Civil Procedure provides that in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances of the case may be instituted by the Advocate General or with the leave of the court by two or more persons even though no special damage has been caused to such person by reason of such public nuisance or other wrongful act. Section 91 does not limit or otherwise affect any right of suit which may exist independently of its provisions. That being so, any person who has suffered special damage on account of public nuisance he can file a suit without taking resort to Section 91, C.P.C. for the removal of the public nuisance from the public street. Whether the p1aintiff has suffered special damage would depend on the facts and circumstances of each case. Admittedly, the instant case is not one under Section 91, C.P.C., I have, therefore, to see whether the plaintiff has sought demolition of the constructions in question on the ground that special damage has been caused to him on account of public nuisance on the public street created by the defendant. A perusal of the plaint would show that the plaintiff has not based his claim on public nuisance. He has come with the allegation that the land belongs to him and that the defendant illegally threatened to make certain constructions on the land. Therefore, initially he filed the suit for injunction. He further sought amendment of the plaint alleging that during the pendency of the suit the defendant had made certain constructions on the land in dispute and, therefore, those constructions should be demolished and possession of the land should be delivered to him. He had not come with the allegation that the land was a public street. The defendant contested the suit alleging that it was a public street and had vested in it and that the constructions had been made prior to the institution of the suit. Obviously, the plaintiff had not filed the suit for the removal of an obstruction caused on the public street because, according to him, the land was not a public street but belonged to him and he was entitled to its user. Both the courts below have found that the land in suit is a public street and the appellate court below has returned a finding that it lies in Mohal Abu Zafar.
7. Whether the constructions were made prior to the institution of the suit or during the pendency of the suit, the fact remains that the plaintiff has not filed the suit for demolition of the constructions on the ground that it constitutes a public nuisance on a public street and that he has suffered special damage. His case throughout had been that the land belongs exclusively to him and the constructions should be demolished and the possession should be delivered to him. He did not say in his plaint that the land which originally belonged to him is a public street. The courts below have found that the land is a public street. It has, therefore, vested in the Municipal Board for the limited purposes mentioned above. It is not open to this court to carve out a new case for the plaintiff and to grant a relief on the basis of the new case so set up. In these circumstances the demolition of the constructions in question cannot be granted in this suit.
8. For the reasons in the foregoing, the appeal has to fail. It is accordingly dismissed but in the circumstances of the ease the parties are directed to bear their own costs throughout.