Satyanarayana Rao, J.
1. The first defendant is the appellant in this second appeal. The suit was for a declaration that the portion marked KLMN in the plaint plan is a public pathway and for possession of a portion out of the same after ejecting the first defendant and for a mandatory injunction directing the first defendant to remove a wall which was constructed on the pathway and for other reliefs. The plaintiffs five in number, instituted the suit not only in their individual capacity but also on behalf of the other residents of the village of Kota in their representative capacity and obtained leave of the Court under Order 1, Rule 8 of the Civil Procedure Code to institute the suit in that form.
2. The main contesting defendant in this suit was the first defendant. The second defendant remained ex parte. The first defendant contended that the pathway was not a ' public' pathway, that there was no encroachment and that the suit was not maintainable without the sanction of the Advocate-General under Section 91 of the Civil Procedure Code or at any rate without proof of special damage. The learned District Munsiff who tried the suit found that the pathway was set apart by two adjacent owners but that it was not a public pathway, that it was intended to enable the people of the village to reach the well Win the plaint plan for getting fresh water. His view was that notwithstanding the right possessed by the residents of the village the property continued to be the property of the original owners and that therefore the plaintiffs had no right of action. He, however, found that there was an encroachment. Following the decision of this Court in Munisami v. Kuppuswami (1939) 1 M.L.J. 392 : I.L.R. 1939 Mad. 370 the learned District Munsiff held that it was unnecessary for the plaintiffs to prove any special damage in order to maintain the suit as after the decision of the Privy Council in Manzur Hasan v. Mohamed Zaman (1924) 48 M.L.J. 23 : L.R. 52 IndAp 61 : I.L.R. 47 All. 151 (P.C) the rule of English common law that one member of the public cannot maintain an action for removal of obstruction of a highway without proof of special damage over and above the damage suffered by others did not apply to India. In the result the suit was dismissed on the ground that the right of action to remove the wall and the encroachment vested in the original owner and that the plaintiffs had no locus standi to institute the suit.
3. Against this decision the plaintiffs preferred an appeal to the Subordinate Judge of Nellore who reversed the decree of the learned District Munsiff and decreed the suit. He found agreeing with the District Munsiff that there was an encroachment on the pathway. He differed from the District Munsiff in his view that the pathway was not a public pathway. According to the learned Subordinate Judge the plaintiffs were entitled to sue because they also sustained special damage along with the other residents of the village.
4. Against this decision the first defendant preferred this second appeal. It was contended on behalf of the appellant that the finding of the learned Subordinate Judge that there was an encroachment was not correct; that on the finding of the learned Subordinate Judge that the pathway was a public pathway the suit was not maintainable without the sanction of the Advocate-General under Section 91 of the Civil Procedure Code or in any event without proof of special damage by the plaintiffs. According to the appellant the finding of the learned Subordinate Judge on the question of special damage amounted to no more than that the plain-tiff also suffered damage along with others and not a damage suffered by the plain-tiffs over and above the damage suffered by others.
5. The finding of the Court below regarding encroachment by first defendant in my opinion is correct and is supported by the oral and documentary evidence on record. The recital in Ex. D 3 under which the first defendant acquired title refers to the pathway which was left for the benefit of the public for fetching water from the well. On the evidence the pathway was clearly intended for the benefit of the residents of the village for fetching water from the well and there was an, encroachment. The finding of the learned Subordinate Judge that it was a public pathway amounts to saying that it was a pathway set apart for the benefit of the residents of the village of Kota and not for the benefit of the general public. This is made clear by the statement in paragraph 12 of the plaint that the plaintiffs were instituting the suit not only for their benefit but also for the benefit and on behalf of the other residents of the village of Kota in a representative capacity under Order 1, Rule 8 of the Civil Procedure Code. The case therefore has to be considered on the footing that there was a pathway set apart by the owners of the adjacent plots for the benefit of the residents of the village of Kota to enable them to reach the fresh water well W in the plaint plan and to take water from it. I agree with the contention of the learned advocate for the appellant that the finding of the learned Subordinate Judge on the question of special damage is not a finding that the plaintiffs had suffered any damage over and above the common inconvenience caused to all the neighbours by reason of the construction and encroachment by the first defendant.
6. This leads me to the consideration of the question whether the suit at the instance of the plaintiffs which is a representative action under Order 1, Rule 8, Civil Procedure Code, is maintainable without proof of any special damage. Section 91 of the Civil Procedure Code does not help the plaintiffs as they did not obtain the sanction of the Advocate-General in which case alone a suit without proof of special damage would be maintainable in respect of a public nuisance assuming that what is complained of in this suit amounts to a public nuisance. The plaintiffs raised the contention in the Courts below that they were entitled to maintain the action without proving special damage even if their complaint amounts to a public nuisance. This was the view taken by Wadsworth, J., in Muthuswami v. Kuppuswami : AIR1939Mad691 According to that decision after the decision of the Privy Council in Manzur Hasan v. Mohamed zaman (1924) 48 M.L.J. 23 : L.R. 52 IndAp 61 it is open to an individual member of the public to maintain a suit for removal of obstruction to a public highway which constitutes a nuisance without the sanction of the Advocate-General under Section 91 of the Civil Procedure Code and even without proof of special damage. On behalf of the appellant it was strenuously contended that this decision was wrong and that the Calcutta and the Patna High Courts have interpreted the Privy Council decision in a different manner. Unfortunately in this case the respondents were ex parte but Mr. Raghava Rao the learned advocate for the plaintiff has very fairly placed before me the authorities for and against bearing upon the case.
7. Under the law obtaining in England as stated in 24 Halsbury, page 82, paragraph 144 (second edition),
A private individual may bring an action in his own name in respect of a public nuisance when, and only when, he can show that he has suffered some particular, direct and substantial damage over and above that sustained by the public at large, or when the interference with the public right involves a violation of some private right of his own, or when a statute has given him a special pro-tection or benefit which is being invaded.
8. This position of the law was accepted and applied in India till the decision of the Privy Council in Manzur Hasan v. Mohamed Zaman (1924) 48 M.L.J. 23 : L.R. 52 IndAp 61 : I.L.R. All. 151 (P.C) see Hussain Sahib v. Narasimhappa : (1912)23MLJ539 and Kandasami Koundan v. Karuppan Koundan (1913) M.W.N. 1001. In one class of cases however there was difference of opinion between the Bombay and the Madras High Courts. That was where a community or a section of a community or a particular body of persons claimed a right to carry a procession along a public highway and there was obstruction of that right by others. The Bombay view was that even in such class of cases it was incumbent upon the plaintiffs to allege and prove special damage. Satku valad Kadir Sausare v. Ibrahim Aga valad Mirza Aga I.L.R. (1877) Bom. 457 was a case on that point though in a later decision in Baslingappa Parappa v. Dharmappa Basappa I.L.R. (1910) Bom. 571 a different view was expressed. This Court in Velan Pakkin Taragan v. Subbayan Samban (1918) 36 M.L.J. 79 : I.L.R. 42 Mad 271 decided that a suit would be maintainable in Such a case without allegation and proof of special damage. Such class of cases were treated by this Court as not being cases of public nuisance at all but cases of trespass or threatened trespass to the plaintiffs and an action of trespass was maintainable even without proof of special damage. Finally this conflict was resolved by the Privy Council in Manzur Hasan v. Mohammad Zaman (1924) 48 M.L.J. 23 : L.R. 52 IndAp 61 : I.L.R. 47 All. 151 (P.C.), already referred to. The Judicial Committee accepted the view of this Court as being right and held that the Bombay view was wrong. Lord Dunedin referred to the decision of the Bombay High Court in Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga I.L.R. (1877) 2 Bom. 457 and after setting out the headnote in that judgment pointed out that the Bombay decision ' proceeded 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 to India.
The decision in Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga I.L.R. (1877) 2 Bom 457, proceeded upon an exhaustive examination of the authorities on which the rule of English common law was founded and the learned Judges applied that rule to the case before them which related to a right to take a procession along a highway without obstruction. It is the correctness of the application of the English common law rule that came up for consideration before the Judicial Committee. The Judicial Committee did not rest their decision on the ground that the special rule as to damage did not apply to the class of cases before them but that the rule itself had no application to India and that the distinction was peculiar to the English law and that it should not be extended to India. In view of this clear pronouncement it is difficult to confine the decision of the Privy Council to what may be called the pro-cession cases as did the learned Judges of the Calcutta and the Patna High Courts. I respectfully agree with Wadsworth, J., in his interpretation of the Privy Council decision,
that it deals generally with the whole class of cases governing the rights of the public to use the public way.
This was also the interpretation placed by two earlier decisions one in Mandakinee Debee v. Basantakumaree Debee I.L.R. (1923) Cal. 1003, by Jack, J., and the other in Municipal Committee, Delhi v. Mohammad Ibrahim I.L.R. (1934) Lah. 517 The Calcutta High Court in Surendra Kumar Basu v. District Board of Nadia I.L.R. (1942) Cal. 533 and the Patna High Court in Chowdry Bibuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur I.L.R. (1939) Pat. 208 interpreted the decision of the Privy Council in a different manner and confined its operation to procession cases.
9. Their Lordships of the Calcutta High Court were of the opinion that the statement of the law in Baslingappa Parappa v. Dharmappa Basappa I.L.R. (1910) 34 Bom. 571 was expressly approved by the Privy Council. Except quoting the headnote of that decision nowhere was it stated in the judgment that that statement of law was approved. There is no indication in the judgment of their Lordships that they were accepting the distinction drawn in Baslingappa v. Dharmappa Basappa I.L.R. (1910) 34 Bom. 571 as the basis of the decision. The decision of the Privy Council is founded on the larger principle that in an action by a private individual for relief in respect of a public nuisance it was not necessary under Indian law to establish special damage. The passage already quoted makes no exception of any sort and is general in its scope. I am unable to accept the view taken by the Calcutta and the Patna High Courts and in my opinion the decision of Wadsworth, J., is right.
10. I think the suit is maintainable also on another ground. Even if proof of special damage is necessary in cases where a representative action was instituted after obtaining leave under Order I, Rule 8 of the Civil Procedure Code as laid down in Adamson v. Arumugam I.L.R. (1886) Mad. 463 and the interpretation placed by Wadswbrth, J., on Manzar Hasan v. Mohammed Zaman (1924) 48 M.L.J. 52 : L.R. 52 IndAp 61 : I.L.R. 47 All. 151 (P.C.) is not correct, in my view, the wrong complained of in the present case does not constitute a public nuisance. A village path of the kind in suit cannot be treated and raised to the dignity of a public highway. The word ' public ' used by the plaintiffs in the plaint and by the learned Subordinate Judge in his judgment is to be understood as being limited only to a section of the public namely the residents of the village of Kota. The right of way was claimed only by this definite section of the public and not for the benefit of and on behalf of the public in general. Very often Courts have to deal with the infringement of the rights of the residents of a village or of a section of a community in pathways, wells and banks of rivers and so on. Infringements of such rights cannot be deemed to constitute public nuisance within the meaning of Section 91, Civil Procedure Code or within the meaning of Section 268 of the Indian Penal Code. As pointed out by Wilson, J., in Chunilal v. Ramakishen Sahu I.L.R. (1888) Cal. 460, there are three distinct classes of rights of way and other similar rights:
First, there are private rights in the strict sense of the term vested in particular individuals or the owners of particular tenements, and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as the freemen of a city, the tenants of a manor, or the inhabitants of a parish or village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exist for the benefit of all the Queen's subjects; and the source of these is ordinarily dedication.
In respect of these rights of way the learned Judge observed at page 465,
I think there is reason to suspect that, in some cases, ways and other claims of a like nature have been treated as public rights, when perhaps they might have been both more correctly and more conveniently regarded as village ways and village rights : more correctly, because I think there is reason to suppose that such village roads as distinguished from public roads are of very common occurrence; more conveniently, because, as I shall show later, there may be more easy civil remedies for treating questions of village roads than questions relating to public roads.
In respect of such village roads the learned Judge points out that it would be open to a member of the class by taking appropriate steps under Section 30 of the old Civil Procedure Code now corresponding to Order I, Rule 8 and to institute a representative suit for relief. The present case is an instance in point and illustrates how inappropriate it is to treat as a public right what was merely a village path and call an obstruction to it a public nuisance and apply the disabilities relating to the remedies in respect of public rights to such cases. In such a case it is perfectly open to some of the residents of the village to institute a suit both for themselves and also on behalf of the other residents of the village taking advantage of the machinery provided by the Code under Order I, Rule 8, to bring a representative action, In such pathways the public in general are not interested and no question of any public nuisance or of proving special damage arises. Wort, J., of the Patna High Court sitting as a single Judge had to deal with questions relating to village pathways in more than one case. Though the decisions of the learned Judge are not altogether uniform the general principle deducible from his decision is that in respect of village pathways, rasthas, cart-tracks or other rights it is open to a member of a class to bring a representative action under Order I, Rule 8 of the Civil Procedure Code and obtain relief without proving special damage. The learned Judge rests his decisions on Harrop v. Hirst (1868) L.R. 4 Ex. 43. The decisions of the learned Judge are to be found in Mohamed Din v. Mst. Atrajo Koer I.L.R. (1931) Pat. 568 Bisser Pathak v. Harbans : AIR1937Pat54 , Ramaghulam Khatik v. Ram Khalawan Ram I.L.R. (1936) Pat. 190 and Ramdahin Pande v. Parameshwar Singh : AIR1940Pat160 . The decision of a Bench in Chowdri Bibhuti Narayan Singh v. Maharajah Sir Guru Mahadev Asram Prasad Sahi Bahadur I.L.R.(1939) Pat. 208, also take the same view. There isthe latest decision of the Patna High Court in Dalgobinda Mahath v. Khatu Mahatha : AIR1948Pat183 . by Sinha and Mukerjee, JJ., which also relates to a pathway or cart-track in which the residents of more than one village were interested. It was there held that such a pathway is not a public pathway and the disability contained in Section 91 of the Civil Procedure Code did not apply to a suit relating to it. The learned Judges held that it was unnecessary to prove special damage in a case where an immediate community or section of the public was deprived of the amenity provided for that particular section as the presumption was that they suffered loss. I think it was unnecessary for the learned Judges to have rested their decision on presumed loss when they definitely found that the cart-track was not a public highway. If it was not a public highway the obstruction to it does not constitute public nuisance and even if the law were that special damage had to be proved for removal of obstruction to a highway in a suit by one member of the public, the rule would not apply to such a case. My conclusion therefore is that in the present case the path-way in respect of which the plaintiffs claim relief in this suit was not a public high-way and that it was unnecessary for them to establish special damage. The action therefore was properly laid after obtaining permission under Order 1, Rule 8 of the Civil Procedure Code on behalf of the residents of the village and therefore it is maintainable.
11. In the result the second appeals fails and is dismissed. After I posted the case for judgment the respondents 1 to 5 entered appearance through their advocate Mr. Umamaheswaram. As the appeal is dismissed it is unnecessary to consider whether the appeal should be reheard. They are, however, not entitled to any costs in this as they appeared only at a very late stage.
12. No leave.