Jagat Narayan, C.J.
1. These four special appeals have been filed by the leave of a learned Single Judge against his judgment dated April 18, 1966, by which he decided 9 second appeals. These 9 second appeals arose out of 5 suits Nos. 75 of 57, 94 and 157 of 1960 and 20 and 200 of 1962 of the Court of Munsif, Ganganagar. All the 5 suits were decreed by the trial court. In appeal suit No. 75 of 1957 was dismissed by Shri Krishna Nand, the then District Judge of Ganganagar by his judgment dated March 2, 1959. The appeals in the remaining 4 suits were dismissed by Shri Sardar Singh, the then District Judge of Ganganagar by his judgment dated 30-1-1962. The result of the judgment of the learned Single Judge is to decree all the 5 suits.
2. Special Appeal No. 21 of 1966 arises out of suit No. 157 of 1960 which was instituted by Santlal. Special appeals Nos. 20 of 1966 and 32 of 1966 arise out of suit No. 75 of 1957 which was filed by Ladu Ram. Special Appeal No. 29 of 1966 arises out of suit No. 200 of 1962 filed by Khemchand.
3. The defendants of Suit No. 20 of 1962 which was instituted by one Lachhi Ram have filed special appeal No. 22 of 1966. This could not be heard along with the other special appeals as it was not ripe for hearing on account of the death of a party. The defendants of suit No. 94 of 1960 instituted by De-wan Chand do not appear to have filed any special appeal against the judgment of the learned Single Judge,
4. The facts are these. In the Dhan Mandi area of Ganganagar town there is a road leading from the Kotwali to the Lakkar Mandi known as Kot-wali Road. At right angles to it towards its western end is the Dharam-shala Road. Both these are public roads or highways. Santlal has a Nohra and Ladu Ram has shops abutting on the Kotwali Road and Khemchand has shops abutting on the Dharamshala Road. The width of these roads is 50 ft. Some 25 or 30 years before the present suitswere brought the Municipality of Ganganagar let out substantial portions of these public roads to various persons on Tehbazari basis for putting up temporary wooden stalls for the purpose of using them as shops. The stalls have been set up by the persons who have been joined as defendants in the suits. In between the stalls and the properties of the plaintiffs there are narrow strips of land or lanes which are not more than 2 to 3 feet wide; otherwise the Tehbazari stalls virtually cover up the properties of the plaintiffs abutting on the two public roads. A considerable part of the two public roads has therefore been obstructed by the Tehbazari stalls and their original width of 50 feet has been substantially reduced.
The actual position of the roads, the properties of the plaintiffs and the stalls have been shown in a plan which was produced before the learned Single Judge by Shri M. M. Vyas, learned counsel for the Municipality. The correctness of this plan has been admitted by all the parties. The Rajasthan Government conveyed an order to the Municipality on September 11, 1952, for the restoration of the entire width of the Kotwali Road by removing the stalls, but that order was not carried out. The stall-holders themselves filed a suit for the issue of an injunction against their impending eviction, but it was dismissed on July 17, 1956. As the Municipality did not take any step to evict them the plaintiffs instituted the present suits challenging the legality of obstructions on the public highways. They prayed that a perpetual injunction be issued directing the Municipality to refrain from letting out any portion of the public roads in future. They also prayed for the issue of a mandatory injunction for the removal of the obstructions.
5. Various pleas were taken in defence before the learned Single Judge which were overruled by him.
6. The first contention on behalf of the appellants is that the Municipality had the right under the law to let out the lands in question for setting up temporary stalls on Tehbazari basis. When the lands in question were first let out to the stall-holders the Bikaner Municipal Act. 1923 (No. VI of 1923) was in force. Reliance is placed on Sections 51 (f), 113 and 114 of this Act which run as follows :--
'51. Property vested in board.-- Subject to any special reservation made or to any special conditions imposed by His Highness' Government, all property of the nature hereinafter in this section specified and situated within the municipality, shall vest in and be under the control of the board; and, with all otherproperty which has already vested or may hereafter vest in the board, shall be held and applied by it for the purposes of this Act, that is to say :--
(f) all public streets, land or other property transferred to the board by His Highness' Government or acquired by gift, purchase or otherwise for local public purposes.'
'113. Power over streets. The Board may :--
(a) close temporarily any public street or any part thereof for any public purpose;
(b) divert, discontinue or close permanently any public street.'
'114. Power of permitting temporary occupation of streets etc. -- The Board may grant permission in writing for the temporary occupation of any street or land vested in it for the purpose of depositing any building materials or making any temporary excavation therein or erection thereon, subject to such conditions as it may prescribe for the safety or convenience of persons passing by or dwelling or working in the neighbourhood, and may charge fees for such permission, and may at its discretion withdraw the permission.'
7. The argument is that as public highways vest in the Municipality and as power has been given under Section 113 (b) to the Municipality to discontinue or close permanently any public street, it was open to it to let out a part of the public highway to the stall-holders. This contention was repelled by the learned Single Judge and rightly so in our opinion. All the property of the nature specified in Section 51 vests in the Municipality and is under its control on the specific condition that it shall be held and supplied by it for the purposes of the Act. It is not open to the Municipality to convert a part of a public highway into a bazar.
8. Under Section 113 (b) it is open to the Board to discontinue or close permanently any public street, but that can only be done for the purposes of the Act. This provision also does not entitle the Municipality to let out a part of a public highway to a private person for setting up stalls for carrying on business.
9. Section 114 also does not authorise letting out a part of a highway for setting up a stall for carrying on business. The purposes for which permission may be granted to occupy any part of a street temporarily are specified in ft. They envisage permission to be granted to those constructing buildings abutting public streets or public lands so that people may be able to dig foun-dations and erect scaffoldings on the pub-jlie street.
10. When the Act did not give any power to the Municipality to let out portions of a public highway for putting up stalls for carrying on business this could not be done by framing any bye-laws. Section 129 of the Act which provides for framing bye-laws does not contain any clause specifically empowering the Municipality to frame bye-laws about letting out parts of public highways on Tehbazari. Clause (i) is a ge-neral clause enabling the Municipality to frame bye-laws for carrying out the purposes of the Act. As has been shown above the Act does not empower the letting out of portions of a highway for carrying on business and so no bye-laws could be framed authorising the Munici-pality to do so.
11. The Bikaner Municipal Act 1923 was repealed by the Raiasthan Town Municipalities Act 1951. Sections 48 (2) (f), 99 and 100 of it run as follows :--
'48. Power to acquire and hold property.
(2) All property of the nature here-inafter in this Section specified and not being specially reserved by the Government shall be vested in and belong to the municipal board, and shall, together with all other property of what nature OB kind soever, not being specially reserve ed by the Government, which may become vested in the municipal board, be under its direction, management and. control, and shall be held and applied by it as trustee subject to the provisions and for the purposes of this Act, that is to say--
(f) all public streets and the pavements, stones, and other materials thereof and also all trees, erections, materials, implements and things provided for such streets.
'99. Power regarding streets. etc.--(1) it shall be lawful for the municipal board to lay out and make new public streets, and to construct tunnels and other works subsidiary to the same and to widen, open, enlarge or otherwise improve any such streets, and to turn, divert, discontinue or stop up any such streets, and subject to the provisions of Sub-section (2) of Section 36 to lease oi sell any such land theretofore used or acquired by the municipal board for the purposes of such streets, as may not be required for any public street or for any other purposes of this Act.
(2) in laying out or making, or in turning, diverting, widening, opening, enlarging or otherwise improving any,public street. In addition to the land required for the carriage-way and foot-way and drains thereof, the municipal board may purchase the land necessary for the houses and buildings to form the said street, and, subject to the provision contained in Sub-section (2) of Section 36 may sell and dispose of such additional land in perpetuity or on lease for a term of years, with such stipulations as to the class and description of houses or buildings to be erected thereon as it may think fit.'
'100. Temporary closure of streets.--The municipal board may. by an order in writing, temporarily close any street to traffic for repair, or in order to carry out any work connected with drainage, water supply or lighting or any of the purposes of this Act:
Provided that such work shall be completed and such street reopened to traffic with all reasonable speed.'
12. There was slight change in the language of the provision vesting certain properties in the Municipality. Under Section 48 (2) these properties vest in and belong to the Municipality and be under its direction, management and control. But it has been made clear that these properties shall be held and applied by it as trustee subject to the provisions and for the purposes of the Act. The addition of the words 'and belong to' did not make any difference to the power of the Municipality which it had under Section 51 of the Bikaner Municipal Act. In the Rajasthan Town Municipalities Act it was made clear that the properties are held by the Board as trustee and are to be applied by it for purposes of the Act. The Rajasthan Town Municipalities Act. 1951, was replaced by the Rajasthan Municipalities Act, 1959, the corresponding provisions are contained in Sections 92 (2) (f). 161 and 163. The language of these sections is the same as the language of the corresponding sections of the Rajasthan Town Municipalities Act, 1951.
13. We may mention here that it was not the case of the Municipality that part of the public streets on which the stalls stand were not required for the purpose of the streets and were therefore let out on Tehbazari. No resolution of the Ganganagar Municipality was produced embodying such a decision in respect of either of the two public streets.
14. The leading case on the pointis a Division Bench decision of the Bombay High Court in Emperor v. Vish-vanath Nana Karpe, AIR 1926 Bom 535.In that case the Municipality had authorised timber dealers to use a strip of the street for the purpose of exposing tim-ben for sale and this had continued for40 years. The Bombay District Municipal Act was applicable to the case, the corresponding provisions of which are similar to the provisions of the Bikaner and Rajasthan Acts referred to above. Under Section 90 of the Bombay District Municipal Act the Municipality had authority to discontinue or stop any public street. It was contended that they had also authority to discontinue or stop a part of such street. It was held that public strees are vested in the Municipality for the purposes of being maintained as public streets and that it was not contemplated that a portion of a sreet would be discontinued or stopped so as to. provide a market thereon. This decision was followed in Municipal Committee Delhi v. Mohammad Ibrahim, AIR 1935 Lah 196, Chellaram Verhomal v. Emperor, AIR 1942 Sind 91 and Talakchand Dhanji v. Dhoraji Municipality, AIR 1955 Sau 63.
15. In Municipal Board, Manglaur v. Mahadeoji Maharaj, AIR 1965 SC 1147 the Municipality was seeking to erect a structure on the road Patri between the drains and the metalled portion of the road wherein it intended to instal a statue of Mahatma Gandhi and also to put up two rooms on either side for Piao and library. The plaintiff brought a suit for a permanent injunction restraining the defendant Municipality from putting up the structure on the suit site. It was held that the suit site was a part of the public pathway and that the pathway vested in the Municipality by virtue of Section 116 (g) of the U. P. Municipalities Act, but it could not 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, and were consequently unauthorised acts of the Municipality. The language used in Section 116 (g) is similar to the language used in the corresponding section of the Rajasthan Acts namely 'shall vest in and belong to.'
16. We accordingly confirm the finding of the learned Single Judge that the Act of the Municipality in letting out the parts of public highways for setting up stalls on Tehbazari basis was wholly illegal.
17. Next it was contended that only the space between the stalls should be taken to be the highway. Reliance was placed on the following sentence occurring in the judgment of their Lordships of the Supreme Court in Manglaur Municipality's case, AIR 1965 SC 1147 :--
'The width of the highway so dedicated depends upon the extent of the user.'
The full passage runs as follows and makes it clear that side-lands are also part of the public highway :--
'Inference of dedication of a highway to the public may be drawn from a long user of the highway by the pub-he. The width of the highway so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually Indicate the extent of the user. In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board.'
18. In Ladu Ram's suit the Municipal Council and the stall-holders both admitted that the Kotwali road was 50 ft. wide. In the other suits the trial court found that the width of the Kotwali road was 50 ft. and this finding was not challenged in the first appeal and therefore it is binding on the parties to those suits.
19. It is not disputed that the obstructions are of a much later origin than the public highways. These obstructions amount to public nuisance.
20. Next it was contended that the present suits should not have been decreed as the plaintiffs had failed to prove that they suffered special damage. Section 91 Civil Procedure Code runs as follows :--
'91. Public nuisances.--(1) 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.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.'
21. The present suits have not been brought under Section 91(1) after taking the consent of the Advocate General. They fall under Section 91(2). According to Section 268 Indian Penal Code a 'public nuisance' is an act which causes any common injury, danger or annoyance to the public or to the people in general, who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. This definition applies to CivilProcedure Code by virtue of Section 3(44) of the General Clauses Act. The right of the public to pass over a public highway is a public right. Under the civil law there are two remedies against a person who causes any public nuisance. He may be sued under Section 91(1) C. P. C. or he may be sued by a private, individual under Section 91(2). Under the Common Law of England a private person cannot maintain a suit in respect of a public nuisance unless he has suffered special damage thereby, that is, damage beyond what is suffered by him in common with other persons affected by the nuisance.
22. In 1869, Sir Barnes PeacocE, C. J., said in Baroda Prosad v. Gora-chand, (1869) 12 Suth WR 160.--
'We think it is clear that this suit will not lie. The plaintiff sues defendants for obstructing a public road without showing that he has sustained any particular inconvenience in consequence of the obstruction. If he can maintain this suit, any member of the public can do so, and the defendant may be ruined by innumerable actions by persons who have not sustained farthing of damage.'
23. The same view was taken by all the High Courts in India and this view prevailed till the decision of the Privy Council in Sd. Manzur Hassan v. Sd. Md. Zaman, AIR 1925 PC 36 = 52 Ind App 61, to which we shall advert later. We shall first consider whether the plaintiffs of these suits have been able to prove special damage.
24. In Ladu Ram's suit it was alleged that he suffered special damage inasmuch as his right to access to the highway from his property at any point at which his land actually touched it was obstructed and the frontage of his shops opening towards the Kotwali road was blocked by the stalls and there was interference of his right to receive light! and air from the public highway in these shops. Two issues were framed by the trial court about special damage namely issues (2) and (4) both of which were decided in favour of the plaintiff. The finding on issue No. (2) was not challenged before the court of first appeal and the finding on issue No. (4) was upheld by that court. It may be mentioned here that Ladu Ram purchased a Nohra in 1945 and constructed shops sometime later. When he purchased the Nohra there was only a wall towards the Kotwali road. That however does not affect his right to access to the highway at any point at which his land touches it even though there is no door or other opening at that place. In Halsbury's Laws of England. ThirdEdition volume 19, it is stated at page 79--
'The right of accesss is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises.'
25. In Dwarka Prasad v, Patna City Municipality, AIR 1938 Pat 423 it was held that the fact that a person has put up a wall on his land which abutted on a public road will not deprive him of his right of having access from his land to the road at any place he chooses. The same view was taken in District Board of Manbhum v. Bengal Nagpur Rly Co.. AIR 1945 Pat 200 and Talak-chand Dhanji v. Dhoraji Municipality, AIR 1955 Sau 63.
26. In Santlal's suit special damage was pleaded. It was alleged that his right of access to the highway from every point of his property was obstructed and his right of receiving air and light from every point on the highway was also obstructed by the stalls. Issue No. (5) was framed by the trial court about the right of access and was decided in favour of the plaintiff. This finding was not challenged by the defendants before the first appellate court.
27. The plaint, written statement and the judgment of the trialcourt have not been included in thepaper book by the defendant appellantsin Khem Chand's case. The judgmentof the first appellate court goes to showthat it was not contended before it ontheir behalf that the plaintiff had failedto prove special damage. In specialappeal No. 29 of 1966 therefore it isnot open to the appellants to contendthat the plaintiff had failed to provethat he suffered special damage.
28. It was argued before the learned Single Judge on behalf of the defendants that a lane of 2' or 3' has been left between the premises of the plaintiffs and the stalls. They can step on to the highway from every point of their properties touching it and that is the only right of access to the highway which they have and which has not been interfered with. This contention was overruled by the learned single Judge on the following reasoning :--
'The fact therefore remains that the stalls come in between the plaintiffs' premises and the public ways. A perusal of Mr. Vyas' site plan shows that, to say the least, the plaintiffs would have to take a longer route to reach the main road every time they desired to leave their premises and reach the centre of the road (which alone is available for traffic at present) or its opposite extremity. They are thereforejustified in pleading that the obstructions deprived them of the use of the full width of the roads for the free and full enjoyment of their properties. For instance, the rows of stalls would prevent easy and convenient access to the plaintiffs and their customers, the passage of the vehicles on a narrow strip of 2 or 3 feet is out of the question and, as is obvious, the premises have become less prominent from the centre of the public roads because of the intervening stalls. So when the plaintiffs are shown to suffer direct and substantial parti-cular or special damage beyond that suffered by the general public, there is no reason why they should not be entitled to maintain their suits without the consent of the Advocate General.'
29. We agree with the above reasoning and hold that the plaintiffs have succeeded in proving that they suffered special damage and are entitled to maintain the present suits in respect of public nuisance.
30. On behalf of the plaintiff-respondents it was contended on the basis of the decision of the Privy Council in AIR 1925 PC 36 that the principle of English law which requires proof of special damage in such cases is not applicable to India. On the basis of the above Privy Council decision this view was taken in the following decisions :-- Smt. Mandakinee Debee v. Smt. Basantakumaree Debee, AIR 1933 Lah 884; Municipal Committee Delhi v. Mohd. Ibrahim, AIR 1935 Lah 196; Munusami v. Kuppusami, AIR 1939 Mad 691; Subbamma v. Narayanamurthi, AIR 1949 Mad 634. In the undermentioned two cases both of which were considered in AIR 1949 Mad 634 it was held that the decision in AIR 1925 PC 36 was not applicable to cases of public nuisance. Bibhuti Narayan v. Mahadev Ashram, AIR 1940 Pat 449, Surendra Kumar v. Dist. Board, Nadia, AIR 1942 Cal 360. The same view was taken again by the Patna High Court in Smt. Chandrawati Devi v. Rameshwar Kavi-raj, AIR 1968 Pat 422.
31. In AIR 1925 PC 36 the plaintiff-appellants represented the Shiah community of Aurangabad, and the defendants were the representatives of the Sunni community in that town and the former instituted a suit against the latter for a declaration that they were entitled to stay and perform the 'matam' in a circle at the public thoroughfare at the back of the newly built Juma Musjid and that the defendants had no right to offer obstruction. They further prayed for an injunction restraining the defendants from obstructing them while they were acting in the manner stated above. The trial Courtgave the plaintiffs a partial decree; on appeal the suit was dismissed by the Allahabad High Court. The plaintiffs then appealed to the Judicial Committee. Their Lordships allowed the appeal and restored the order of the District Judge with some modifications. It was observed by the Judicial Committee:
'The case seems to their Lordships to raise for authoritative decision the question as to the right of religious processions to proceed along the roads in India, practising their religious observances, and the decided authorities in India are certainly conflicting. The first question, is :
'Is there a right to conduct a religious procession with its appropriate observance along a highway ?'
Their Lordships think the answer is in the affirmative.
The other question, which goes deep into what ought to be done in the present case, is this:
'Does a civil suit lie against those who would prevent a procession with its observances ?'.
Here there is an obvious discrepancy between Bombay and Madras, and Calcutta upholds Madras. The leading Bombay authority is the case in Satku v. Ibrahim Aga (1877) ILR 2 Bom 457, Westropp, C. J. and Melvill, J. This was a suit by certain Mussulmans who carried tabuts in procession along a public road. They were disturbed in so doing by Mussulmans of a rival sect. The head-note sets forth the judgment accurately:
'Held, in special appeal, the plaintiffs could not maintain a civil suit in respect of such obstruction unless they could prove some damage to themselves personally in addition to the general inconvenience occasioned to the public. The mere absence of the religious or sentimental gratification arising from carrying tabuts along a public road is not as such particular loss or injury as would be sufficient according to English and Indian precedents to sustain a civil action.'
The judgment really proceeds entirely on English authorities, which lay down the difference between proceedings by indictment and by civil action.
In their Lordships' opinion such a way of deciding the case was inadmissible. The distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India.
This judgment was followed, as was natural, in Kazi Sujaudin v. Madhav-das. (1894) ILR 18 Bom 693 by twoJudges. Nevertheless in the next case. Baslingappa Parappa v. Dharamappa Basappa, (1910) ILR 34 Bom 571, Sir Basil Scott, C. J. and Batchelor. J., disregarded the authority of their own . Court in (1877) ILR 2 Bom 457, and pronounced a judgment which, without saying that it overruled Satku Valad, clearly did so. The lower Court had followed Satku's case (infra) and dismissed the suit. The head-note is:
'On second appeal by the plaintiffs, held, reversing the decree and allowing the claim, that the suit was not for the removal of a public nuisance, but for a declaration of the right of an individual community to use a public road.'
The Madras cases already cited were all cases (except the criminal one) in which declarations were sought and either granted or, if asking for exclusive right, refused but in none of them was the idea entertained of special damage other than the obstruction of the procession being needed.
In Mohammed Abdul Hafiz v. Latif Husain, (1897) ILR 24 Cal 524 the Madras view was taken. The head-note is :--
'A suit for declaration of right to carry religious emblems in a procession through the streets of a village and for damages for preventing the plaintiffs from doing so, lies in the civil Court.'
Their Lordships are of opinion that the views of the Madras Court are right and that the Bombay judgment is wrong. They think that the appellants are entitled to the declaration granted to them by the District Judge but propose to add to it; after the word 'traffic' line 3, p. 42 of record, the words 'to the Magistrate's directions and the rights of the public.''
32. The above case before the Privy Council was clearly one for the removal of public nuisance. We have referred to the definition of public nuisance above. It includes an act which, causes or which must necessarily cause! injury, obstruction, or annoyance to persons who may have occasion to use any public right. An individual has a public right to pass along a public highway practising his religious observances peacefully and if any one interferes with this right, he commits public nuisance. A body of persons have the same right as an individual. A suit for declaration of such a right and for injunction restraining those who interfere with it is a suit for removal of a, public nuisance.
33. The case in (1877) ILR 2 Bom 457, was a similar case and, therefore, one of a public nuisance. It was so treated by the learned Judges who decided it. The question which arosefor decision was what constitutes a sufficient particular damage in a case where the right of a person to pass on a high way is interfered with. After discussing numerous English authorities on the point, the learned Judges came to the conclusion that mere absence of the religious or sentimental gratification arising from carrying tabuts along a certain public road is not any such particular loss or injury as the precedents would justify them in pronouncing to be such a damage as would sustain a civil action. All the precedents considered by the learned Judges were cases of public nuisance and it is with regard to these cases that their Lordships of the Privy Council observed :--
'The judgment really proceeds entirely on English authorities which lay down the difference between proceedings by indictment and by civil action .....ought not to be appliedin India.'
34. The absence of the expression 'public nuisance' in the judgment is of no significance when the context shows that their Lordships treated the case as one of public nuisance and were considering whether or not the requirement of the English Law that no civil action should be maintainable in such a case without the proof of special damage should be applied to India equally rigorously.
35. The case in (1910) ILR 34 Bom 571 was also similar. The plaintiffs sued on behalf of themselves and other members of a religious community to have a declaration of their right of marching in procession with a car along a public road to certain temples and for an injunction restraining the defendants from interfering with the plaintiffs. The learned Judges held that the suit was not for removal of a public nuisance but for a declaration of the right of an individual community to use a public road. This was the ground on which they distinguished the decision in Satku's case (18771 ILR 2 Bom 457 (supra). Their Lordships of the Privy Council held that the decision in Satku's case could not be distinguished in this way and observed that the learned Judges 'pronounced a judgment which without saying that it overruled Satku's case, clearly did so.'
36. We are, therefore, of the opinion that their Lordships of the Privy Council treated the case before them as well as the cases in Satku's case (1877) ILR 2 Bom 457 and Baslingappa Para-appa's case. (1910) ILR 34 Bom 571 as cases of public nuisance and did not approve of the ground on which the decision in Baslingappa Parappa's casewas based. Their Lordships went on to observe:
'The Madras cases already cited were all cases (except the criminal one) in which declarations were sought and either granted or, if asking for exclusive right, refused, but in none of them was the idea entertained of special damage other than the obstruction of the procession being needed.'
37. From the above decision of their Lordships of the Privy Council, we infer that in case the right of any person to pass along a highway is obstruct-ed or interfered with, he can maintain a suit without proving any other damage.
38. In Dasrath Mahto v Narayan Mahto AIR 1941 Pat 249, it was held by a Division Bench of the Patna High Court that a person in immediate neighbourhood and entitled to use a local public thoroughfare has a special cause of action and that irrespective of whether he has proved special damage or not. The real principle is that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss. In that case, the roadway in question passed through the houses of the plaintiffs and defendants. The latter proceeded to make certain constructions on their land and encroached upon the thoroughfare. The inhabitants in the vicinity of the thoroughfare and some residents of the village brought an action for the removal of the encroachment. It was held that the inhabitants were entitled to seek the removal of the obstruction without proving special damage.
39. We have already held above that the plaintiffs in the present suits have succeeded in proving special damage also.
40. Next we come to the plea of the defendants that the suits are barred by limitation. The Tehbazari stalls had been in existence from 25 to 30 years when the present suits were brought. The learned single Judge was of the opinion that the plaintiffs had a recurring cause of action within the meaning of Section 23 of the old Limitation Act and the present suits were consequently within time. A number of decisions were cited by the learned counsel for the parties. Before considering these decisions, we may state that the contention on behalf of the defendants was that as a result of the putting of the Tehbazari stalls on parts of the public way, the plaintiffs were 'dispossessed' or 'ousted' from those parts of the public way and Section 23 has no application to the present case.
41. We are of the opinion that no question of the dispossession or the ouster of the plaintiffs from any part of the public street can arise as they had no right of possession over the public street. Only a party having a right of possession over something can be dispossessed from it. In the present cases, the stall-holders do not claim adversely to the municipality. They are in possession of parts of the public street as Tehbazari holders from the municipality. In the Municipal Commissioners v. Sarangapani Mudaliar, (1896) ILR 19 Mad 154 the municipality was sued to recover a strip of land forming a part of public highway on which the defendant had made an encroachment more than 45 years before the suit. It was held that the defendant had acquired title by adverse possession against the municipality. Here the municipality was originally in possession over the strip of land which had been encroached upon by the defendant. When the encroachment was first made, although it was an act of trespass, there was complete dispossession of the municipality and Section 23 of the Limitation Act therefore did not apply. By then Article 146-A had not been enacted and it was held that Article 149 was not applicable. Therefore, it was held that the right of the municipality over the strip of land was extinguished under Section 28 of the Limitation Act on the expiry of 12 years and it could not recover back possession.
42. Ashutosh Sadukhan v. Corpn. of Calcutta, AIR 1919 Cal 807 = 49 Ind Cas 93 is a similar case except that Article 146-A had been enacted by then prescribing a period of 30 years. The encroachment 'was made 50 years before the suit by the plaintiffs who claimed adversely to the Municipal Corporation and sought a declaration of their rights so acquired. That Article prescribed a period of 30 years for a suit by the Municipality to recover possession over a public street from which it has been dispossessed.
43. S. Sundaram Ayyar v. Municipal Council of Madura, (1902) ILR 25 Mad 635 is another similar case brought by a person who had made an encroachment on a public street adversely to the municipality, for a permanent injunction restraining it from interfering with his possession.
44. The abover three decisions are distinguishable on the ground that in all of them the municipality was in possession over the public street and was dispossessed by persons who claimed adversely to it. Section 23, therefore, had no application.
45. A person who claims a right of way whether public or private, overa certain land has no right of possession over it and, therefore, there is no question of his dispossession from the land. There can be dispossession not only from land but also from an office. Article 124 of the Limitation Act contemplates a suit for possession of an hereditary office. Time begins to run when the defendant takes possession of the office, adverely to the plaintiff. The case in Balkrishana Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 was a case of dispossession from office in which it was held that Section 23 did not apply because the plaintiffs had been dispossessed from the office.
46. Learned counsel for the defendants were unable to cite a single case in which it might have been held that if the interference with the plaintiff's right of way is caused by an obstruction of permanent or semi-permanent nature, then Section 23 does not apply. On the contrary, in all such cases which were brought to our notice, it was held that Section 23 was applicable.
47. In Bhagwandutt Kamat v. Asharfilal Mahtha, AIR 1934 Pat 34, the plaintiffs had a right of way over certain land which was obstructed. The obstruction had taken place much more than 12 years before the date of the suit. It was contended that the dispossession being completed more than 12 years ago. Section 23 had no application and reliance was placed upon the decision of the Madras High Court in Municipal Commissioners' case (1896) ILR 19 Mad 154 (supra). It was pointed out that the decision was not applicable as the defendant had been in adverse possession against the plaintiff and had acquired a right thereby. The decision in Nazimullah v. Wazidulla, AIR 1916 Cal 733 = 29 Ind Cas 385 was followed in which it was held that a wrongful interference with a right of way constitutes a nuisance and that it is a continuing wrong under Section 23 of the Limitation Act. In the Calcutta case, the decision of the Judicial Committee in Rajrup Koer v. Abdul Hossein. (1880) 7 Ind App 240 (PC) was followed. The learned Judge of the Patna High Court also referred to the decision of the Judicial Committee in Hukumchand v. Maharaj Bahadur Singh, AIR 1933 PC 193 in which Section 23 was applied to certain act on the part of the Swetam-bari Jains interfering with the Digam-baris' right of worship and it was held that it was a continuing wrong as to which under Section 23 of the Limitation Act, a fresh period begins to run at every moment on the day on which the wrong continues.
48. The decision in Maharai Bahadursingh's case, AIR 1933 PC 193 (Supra) was approved by the Supreme Court in Balakrishna Savalram Pujari Waghmare's case AIR 1959 SC 798 (supra). In that case, structural alterations were made by the Swetambaris in the charans of certain shrines. These .Structural alterations were of a permanent character. The Swetambaris made these structural alterations at one time and thereafter did not commit any other act. But the theory of possession or ouster was not applicable as the Digam-baris had only a right of worship and did not have a right of possession over the shrines. The question which the Privy Counsil had to consider was whether the action of the Swetambaris in making structural alterations in the charans of the three shrines was continuing wrong or not and in answering this question in favour of the plaintiffs, the Privy Council referred to its earlier decision in Rajrup Koer's case. (1880) 7 Ind App 240 (PC) (Supra) and held that the action in question was a continuing wrong. Their Lordships of the Supreme Court approved of this decision in the following words :--
'There is no doubt that the Impugned action did not amount to ouster or complete dispossession of the plaintiffs. It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem. In our opinion, neither of these two decisions can be of any assistance to the appellants.'
49. In Mehr Chand v. Sain Gaman, AIR 1937 Lah 94, a suit was brought for an injunction ordering Sain Gaman and the Municipal Committee of Rawalpindi to demolish certain structures erected on the public street by the (former as a lessee from the Committee of the land on which the structures were erected. The suit was dismissed by the lower Court on the ground that it was barred under Article 120 of the Limitation Act. but was decreed by the High Court The building erected by Sain Gaman was erected on the public street at the boundary of the plaintiff's property which abutted on the street. The erection was a public nuisance and the plaintiff suffered special damage from the erection. The building was erected more than six years before the Institution of the suit. It was held that a wrong to the plaintiff was a continuing wrong; his access to the highway from his property and from the highway to his property was prevented dur-ing every moment of the time while the erection stood.
50. In Mt. Masooma Bibi v. Haji Mohd. Said Khan, AIR 1942All 77, it was held that it is incorrect to say that where an obstruction to a public way is caused by an act which results in complete cessation of the ability to exercise the right of way as for instance by building a high wall or wire fencing or something which clearly prevents passage, there can be no question of a continuing wrong as the wrong has been completed once and for all by a single act. A right of way or a right of passage is not a right in the nature of a title or of possession from which there can be an ouster and to which the articles which enforce a limitation of either 12 years or six years can apply.
51. Bibhuti Narayansingh v. Mahadev Asram, AIR 1940 Pat 449 is a decision of a Division Bench of the Patna High Court by which three second appeals were decided. In two of these second appeals the defendants had encroached on parts of the public lanes by constructing a compound wall in one case and by constructing a pucca house after demolishing the Katcha one in the other. It was contended on behalf of the appellant-defendants that upon its terms Section 23 of the Limitation Act can only apply where the wrong is really a continuing one and this cannot be the case where the encroachment is by an act such as the building of a wall, which is over and done with once completed. The decisions which were cited before the learned Judges in which it was held that an interference of right of way of the plaintiff is a continuing wrong within the meaning of Section 23 were criticised on the ground that they had followed the decision of the Privy Council in Rajrup Koer's case (1880) 7 Ind App 240 (PC) (Supra). It was pointed out that the case was not one of obstruction strictly speaking as the defendants were continuously drawing off, from day to day. the plaintiff's water, so that in fact, whenever the defendant drew off water through these diversions, he was in fact stealing plaintiff's water and committing a fresh wrong. This interpretation of the Privy Council in Rajrup Koer's case (supra) was accepted by the Supreme Court in Balakrishna Savalram Pujari Wagh-mare's case, AIR 1959 SC 798 (supra) it is noteworthy that in Rajrup Koer's case (supra), the plaintiff had a right to take water from the channel which flowed on the land of the defendant-He had no right of possession over that land and there could be no question of his dispossession or ouster by any obstruction made to the flow of water in the channel by the defendant.
52. in Bibhuti Narayan's case AIR 1940 Pat 449 the learned Judges ofthe Patna High court, however, ultimately came to the conclusion that the wrong done to the plaintiffs in the two cases with which they were dealing were continuing wrongs within the meaning of Section 23.
53. They, however, added a rider that these continuing wrongs would cease to be wrongs when the rights of the plaintiffs are destroyed. A right of easement is destroyed in 20 years under Section 26(1) of the Limitation Act against a private individual. They, however, also added that rights may arise in favour of the defendants under Section 28 of the Limitation Act. With all respect, where the plaintiffs have a continuing cause of action, their suit cannot get barred by limitation so long as the wrong continues and there is no question of application of Section 28 of the Limitation Act. The suits were dismissed on the finding that special damage had not been proved by the plaintiffs.
54. In Kuchibotha Kanakamma v. Tadepalli Ranga Rao, AIR 1957 Andh Pra 419 the plaintiffs' right of way had been interfered with by the defendants by making permanent constructions. The suit was brought after a lapse of 15 years and it was contended that it was barred by limitation. It was held that the mere fact that obstruction to the enjoyment of an easement of way or of light and air is caused by a wall or other permanent structure does not mean that the wrong is not a continuing one. There is nothing in Section 23 of the Limitation Act to warrant a distinction between a permanent obstruction and an impermanent one, both of which are ex hypothesi wrongful. So long as a wall, building or other obstacle to the plaintiff's enjoyment of an easement of way stands, the wrong continues and Section 23 of the Limitation Act gives rise continuously to fresh periods of limitation. It was pointed out that Section 23 of the Limitation Act would not apply to cases of wrongful dispossession or ouster of the plaintiff in assertion of a hostile title in the defendant and this dispossession or ouster might result from the construction of a building or structure of a permanent character on the encroached land and its occupation by the defendant. But where the plaintiff claims only an easement of a right of way over the land by a grant from the original owner and neither the site nor the right to possession thereof rests in him, the sub-sequent encroachment of the land by the defendant by putting up a permanent structure and occupying it for 12 years would not extinguish the ease-ment of way of the plaintiff though it may extinguish the title to the encroached land of the original owner.
55. The above decision clearly brings out a distinction between those cases in which the plaintiff had a right of possession over some thing from which he has been dispossessed and cases in which he has only a right of way and had no right of possession.
56. The Full Bench decision of the Lahore High Court in Khair Mohd. Khan v. Mt. Jannat, AIR 1940 Lah 359 (FB) was a case in which the plaintiff was the joint owner of a piece of land over which the defendant had construct-ed a chabutra in 1925. It was held that the suit was barred by limitation as it was brought more than 12 years after the dispossession of the plaintiff. This case is distinguishable on the ground that the plaintiff had a right of joint possession over the common land from which he was dispossessed. The act of the defendant was an act of trespass but as it resulted in dispossessing the plaintiff, the injury was complete when the Chabutra was constructed in 1925 and there was no continuing wrong to which Section 23 of the Limitation Acf could apply.
57. Lastly, we come to the decision of the Supreme Court in Bala-krishna Savalram Pujari Waghmare's case AIR 1959 SC 798 (Supra). In that case, the plaintiffs were pujaris of a temple. They were removed from their office by the trustees in 1911 for gross misconduct and some other persons appointed in their place to discharge the duties of the office of the pujari. The pujaris thereafter instituted a suit claiming to be the owners of the temple. This suit was dismissed finally on August 3, 1921. The dismissed pujaris then took forcible possession of the temple premises on July 25, 1922 and began to perform the puja and to take the offerings placed before the deity as they had been doing prior to their dismissal. This was followed by a suit filed by the trustees on September 12, 1922 under Section 9 of the Specific Relief Act which was decreed on November 4, 1922. In pursuance of this decree, the trustees recovered possession of the temple on November 16. 1922.
58. The dismissed pujaris then filed a suit purporting to be one under Section 92 of the Code of Civil Procedure but that was also dismissed finally on June 20, 1933. Then they brought the suit which came up before the Supreme Court on appeal. It was found that the pujaris had hereditary rights but their suit was barred by Article 120 ofthe Limitation Act which was held to be applicable. On behalf of the plain-(tiff-appellants, it was contended that Section 23 of the Limitation Act was applicable. Their Lordships observed as follows :--
'Does the conduct of the trustees amount to a continuing wrong under Section 23 That is the question which this contention raises for our decision. In other wrods did the cause of action arise de die in diem as claimed by the appellants in dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said Injury. If the wrongful act causes an injury which is complete, there is no Continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said in-jury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be Invoked. Thus considered it is difficult to hold that the trustees' act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for theapplication of Section 23 in such a case-That is the view which the High Court has taken and we see no reason to differ from it.'
Their Lordships then referred to the two Privy Council decisions, one in Rajrup Koer's case (1880) 7 Ind App 240 (PC) and the other in Hukumchand's case, AIR 1933 PC 193 (Supra). Both these decisions were approved. The first decision was approved on the ground that the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing the plaintiff's water and thereby committing fresh wrong every time. But the second decision was also approved. We have given the facts of the decision above. Structural alterations were made in three shrines and the character of the charans was thereby altered. This was a permanent alteration which was over and done with once completed. Yet their Lordships held that it was a continuing wrong and the reason for this finding was that the impugned action did not amount to ouster or complete, dispossession of the plaintiff.
59. Their Lordships then referred to the decisions in Bibhuti Narayan Singh's case AIR 1940 Pat 449 and Khair Mohd. Khan's case, AIR 1940 Lah 359 (FB) (Supra) as supporting the view that where the impugned act amounts to ouster there is no scope for the application of Section 23 of the Limitation Act. The Patna case was mentioned inadvertently as there was no finding in it that Section 23 was not applicable. On the contrary, it was held on the facts of the two cases, referred to above, that the wrong done to the plaintiff by obstructing right of passage on the highway was a continuing wrong. In the Lahore case, the plaintiff was a joint owner of the land from which he was dispossessed by the act of the defendant in constructing a chabutra on it. This was a case of dispossession or ouster of the plaintiff.
60. It will thus be seen that it has nowhere been held that a wrong cannot be a continuing wrong where the encroachment which gives rise to it is by an act like putting up a construction which is over and done with once completed. The act by which the Digambaris felt aggrieved in Hukam-chand's case, AIR 1933 PC 193 (Supra) was an act of this nature and yet it was held that the wrong which resulted from the act was a continuing wrong. The reason was that the Digambaris had no right of possession over the shrine. They had only a right of worship. Consequently, there was noquestion of dispossession or ouster of the plaintiffs and hence the application of Section 23 was not ruled out.
61. We accordingly confirm the finding of the learned single Judge that the present suits are not barred by limitation.
62. On behalf of the plaintiff-respondents, it was also contended that the municipality as well as the other defendants who hold through it are trustees within the meaning of Section 10 of the Limitation Act and the present suit is for restoring the land of the public street which has been utilised for purposes repugnant to the trust and, therefore, it cannot be barred by any length of time. It is pointed out that an express trust has been created by the provisions of Section 51 (f) of the Bikaner Municipal Act, Section 48 (2) (f) of the Rajasthan Town Municipalities Act and Section 92 (2) (f) of the Rajasthan Municipalities Act. On behalf of the appellants, it was argued that Section 10 has no application as the trust in this case is created by operations of law. It is unnecessary for us to go into this question in view of our finding that Section 23 of the Limitation Act is applicable and the suits are not barred by limitation.
63. We accordingly dismiss all the appeals with costs.