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KalidIn Vs. Chandika Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All182; 79Ind.Cas.503
AppellantKalidin
RespondentChandika Prasad and ors.
Cases ReferredTota v. Sardul Singh
Excerpt:
public nuisance - special damage proof of. - - the first court decreed the claim in part and dismissed the rest on the grounds (1) that those constructions were not made on the plaintiff's land, and (2) that they did not interfere with the thoroughfare, and further that the plaintiffs bad not proved any special damage......that the plaintiffs bad not proved any special damage. the plaintiffs went up in appeal. the learned judge has on appeal modified the decree of the first court on the ground that the finding of the first court that some of the constructions did not interfere with the thoroughare was erroneous. the learned judge of the lower appellate court has dmitted to consider the fact that, so far at least as the shaeban on no. 67-2 was concerned, it being admitted that the plaintiffs were not the owners of the plot no. 67-2 on which it stood, it was for the plaintiffs to show that they had suffered a special damage over and above that suffered by them along with the public at large. this the learned judge has not found and on ho principle of law could his decree directing the removal of the.....
Judgment:

Gokul Prasad, J.

1. This appeal raises a very simple question. The plaintiffs-respondents brought a suit for the removal of certain constructions which the defendants had made on a public thoroughfare in collusion with the second set of defendants, the remaining zemindars. The first Court decreed the claim in part and dismissed the rest on the grounds (1) that those constructions were not made on the plaintiff's land, and (2) that they did not interfere with the thoroughfare, and further that the plaintiffs bad not proved any special damage. The plaintiffs went up in appeal. The learned Judge has on appeal modified the decree of the first Court on the ground that the finding of the first Court that some of the constructions did not interfere with the thoroughare was erroneous. The learned Judge of the lower Appellate Court has dmitted to consider the fact that, so far at least as the shaeban on No. 67-2 was concerned, it being admitted that the plaintiffs were not the owners of the plot No. 67-2 on which it stood, it was for the plaintiffs to show that they had suffered a special damage over and above that suffered by them along with the public at large. This the learned Judge has not found and on ho principle of law could his decree directing the removal of the shaeban on plot No. 67-2 aforesaid be sustained. Mr. Sital Prasad Ghose, the learned Advocate for the appellant, has relied on the case of Bhawan Singh v. Narottam Singh 2 Ind. Cas. 365 : 31 A. 444 : 6 A.L.J. 499. and Mr. Chaube, the learned Vakil for the respondents, has relied on the case of Tota v. Sardul Singh 10 A. 553 : A.W.N. (1888) 263 : 6 Ind. Dec. (N.S.) 372. The case Bhawan Singh v. Narottam Singh 2 Ind. Cas. 365 : 31 A. 444 : 6 A.L.J. 499, is only an exception to the general rule that any one who sues to remove a nuisance on a public thoroughfare must prove special injury. Having regard to the general law as laid down in the case of Bhawan Singh v. Narottam Singh 2 Ind. Cas. 365 : 31 A. 444 : 6 A.L.J. 499, and giving effect to the exception in favour of the zemindar as laid down in the case of Tota v. Sardul Singh (2), I modify the decree of the lower Appellate Court to this extent only that I dismiss the plaintiffs' claim as to the shaeban on plot No. 67-2 and allow the rest of that decree to stand. Under the circumstances of the case, I direct the parties to bear their own costs of this appeal.


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