S.K. Ray, Ag. C.J.
1. This is a defendant's second appeal arising from a suit for declaration that the disputed land of 10 decimals is a part of the public passage comprised in old settlement plot No. 1069 corresponding to C.S. Plot No. 1090 and for permanent injunction restraining the defendants from preventing user of the same as a part of the public passage. The suit was dismissed by the trial court but was decreed by the lower appellate court. Hence this Second Appeal.
2. The map appended to the plaint shows that to the adjoining east of Plot No. 1090 is the disputed 10 decimals of land ear-marked as 'S' which again adjoins to its further east plaintiff's plot No. 968. The disputed area demarcated as 'S' and western part of plot No. 968 adjoins on their south plot No. 964 of the defendants, and on their north plaintiff's homestead plots 1144 and 1146/1691. Defendant's plot No. 964 is recorded as occupancy raiyati-holding. The case of the plaintiff is that he was passing over the disputed land 'S' from his homestead to his agricultural plot No. 968. Formerly, before the disputed area was amalgamated by the defendants in their own plot No: 964, the public passage extended upto plaintiff's agricultural plot No. 968. The dispute arose when the settlement map was prepared showing the disputed land marked 'S' which, it is alleged was brought about by the defendant's manipulation, and the defendants claimed it as a portion of the Bari on 8-8-63 and thereby prevented its user by the Plaintiff and thus obstructed his right of way.
3. The defendants claimed the suit land as a part of their plot No. 964 since time immemorial. They deny the plaint allegations that they have manipulated in getting the suit-land recorded in the latest settlement map as a part of their plot. They have adopted a legal defence that the suit is hit by Section 91, C. P. C.
4. The trial court found that the suit-land was originally a portion of the public road comprised in Plot No. 1090. But subsequently it has been amalgamated in plot No. 964 and that the defendants have been possessing the same as a part of their Plot since long. He disbelieved the plaintiff's case that he was disturbed in his user of the disputed land for the first time three years prior to suit, as in his opinion amalgamation of the suit-land by the defendants with their own plot took place some time before 1952-53. He further came to the conclusion that the suit is barred under Section 91 of the Civil Procedure Code.
5. The lower appellate court found relying upon the commissioner's report accepted by the parties without objection, that a part of the public road comprises plot No.1090, and continues to be a part of that Public passage till now and the character of that land as public passage or public road cannot be altered by correction made in the current settlement map. He also came to the further conclusion that the plaintiff has been using that as a passage till three years prior to suit when such user was interrupted by the defendants.
6. The main question that has been raised in this second appeal is that Section 91. C. P. C. is a bar to the suit. Section 91 C. P. C. provides-
'In the case of a public nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General may institute a suit though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.'
The law is well settled that where an obstruction is caused to a public thorough-fare or public street or a portion of such thoroughfare is appropriate by a private citizen by enclosing it within his area it amounts to a nuisance and such a nuisance is a continuing wrong. It may be abated by suit either at the instance of a person who has suffered some special injury or where no such special injury has been caused by a suit instituted in conformity with Section 91. C. P. C. If the road is not a public road in the sense that the public at large is not entitled to use it but its user is confined to inhabitants of a particular village or to the neighbours living adjoining the street Section 91 C. P. C. is not attracted. Thus a blind pathway in a village which is not used by the public at large is not a public road and in removing a nuisance from it section 91 is not required to be resorted to. (Vide AIR 1957 Andh Pra 44: AIR 1948 Pat 183 and AIR 1956 Andh Pra 235).
The lower appellate court has come to the conclusion that the road in question is not a public road but a village pathway after considering various relevant circumstances like the type of user: the purpose of that user and the number of persons who are using the road and the fact that the road is a blind one terminating at plaintiffs plot No. 968. That finding is a correct one in my opinion, having been arrived at in the correct legal perspective. The learned counsel for the appellant argues that in view of the averments in the plaint that plot No. 1090 is a public road, the suit is barred in view of Section 91. Civil P. C. It is true that the plaintiff has stated in the plaint that plot no, 1090 is a public road. The expression 'public road' has been loosely used. It will be absurd to call it a public highway, because as the evidence discloses it was being used for a limited purpose, and by a limited number of villagers viz., persons in the neighbourhood. In my opinion having regard to its user by the limited number of persons for a limited purpose, it cannot lose its character of a pathway as distinguished from public road merely because it has been described as public road in the plaint. Considering the above, I am in agreement with the conclusion of the lower appellate court that the plot No. 1090 was a village path-wav and not public highway. So Section 91. Civil P. C. was not attracted and the suit cannot by held to be barred on that account.
7. Assuming that the disputed plot was a public road and not a pathway, vet the plaintiff can be held to have suffered special damage by the defendant's encroachment upon it. The plaintiff's right of access over the village pathway to his field has been established and prevention of that right clearly amounts to special damage and the lower appellate court has therefore found as a fact that the plaintiff has suffered special damage. Apart from that, the plaintiff is a person in the immediate neighbourhood of the local thoroughfare and he having been deprived of the amenity of that road can be deemed to have suffered loss without proof of such loss (AIR 1941 Pat 249). In view of these considerations. Section 91, Civil P. C. cannot be held to bar the maintainability of the present suit.
8. It was further contended by the learned counsel for the appellants that the plaintiff cannot maintain the suit without filing a suit for correction of record of rights within the period of limitation, that is, 3 years from the date of final publication. I cannot agree. Preparation of record of rights or preparation of settlement map does not, In fact affect subsisting rights of the people in the land or running with the land. Record of rights does neither create nor extinguish rights or title. This contention, therefore, fails.
9. It is next contended that the disputed plot No. 1090 having been recorded in the record of rights as 'Sarbasadharana' and the State being ownerof such land and having omitted to object defendants' encroachment of the same thesuit shall fail. That again is not acceptable. The State has not come forward tocontest the plaintiff's suit. If any rent has been received by the State, it must bedeemed to be in respect of plot No. 964. The acceptance of the rent by the Statecannot be said to have been made with conscious knowledge that the rent is beingpaid for the suit-land as part of plot No. 964. In absence of proof of such consciousness on the part of the State, this point cannot be sustained- Even if the State hadgiven its consent, it cannot, by its unilateral action put an end to the plaintiffsright and also rights of other people in the suit-land.
10. All the points raised on behalf of the appellants having failed, there is no merit in this second appeal which is accordingly dismissed with costs.