(1) This is an appeal by the first defendant in the trial Court, in a suit by two plaintiffs, for a declaration that the property encroached upon by the first defendant was part of a public street vesting in the second defendant panchayat board, and for a mandatory injunction, directing the removal of this obstruction. Very briefly stated, the first defendant (appellant) resisted this action on the following grounds. He claimed that be bad put up the masonry constructions only within the limits of his own property. Alternatively, he claimed that if there was an encroachment, a license would be granted to him by the officers of the panchayat board, and that the new construction did not cause any inconvenience to the Public or hindrance to traffic; in this view, the plaintiffs had no right to file the suit.
(2) Both the courts below, found upon the merits, that the property in respect of which the suit was filed was undoubtedly part of the public street and not within the limits of the private property of the appellant. Both the Courts also found that the encroachment was a masonry construction which was liable to be removed, as it narrowed the street, was an unjustified encroachment; and obstructed the use of the street by the public. The Courts further found that there could be no question of a permit granted by the panchayat board, or to be so granted, authorizing blue continuance of such. encroachment. Admittedly, any such permit could be granted only for come temporary construction such as a pandal and not for any permanent masonry construction blocking up a street or part of a street.
(3) The learned counsel for the first defendant-appellant is unable to challenge the concur,-rent landings of fact upon which the suit was decreed. Indeed upon this aspect, there would appear be very little scope for any argument on behalf of the appellant. But the ground is pressed before me that the action falls within the scope of section 91 of the Civil Procedure Code, and that the suit is had for lack of sanction in writing by the Advocate General.
(4) Upon very similar facts, tile matter was twice considered previously by this Court. Firstly, it was considered by Satyanarayana Rao, J., in some detail. In Subbamma. v. Naraynamurthi 1941 1. MLJ 56: AIR 1949 Mad 634. The learned Judge wag there concerned with a conflict in case law between the views of Wadsworth, J., in Muthusami Chetti v. Kuppusami Chetti, ILR (1939) Mad 870: AIR 1939 Mad 691, and certain other decisions of other courts. and the learned Judge came to the conclusion that the decision of Wadsworth, J., should be approved and followed, and not the view taken by the Calcutta and Patna High Courts. I am not now particularly concerned, with this aspect of the decision. But, in the latter part of the decision, the learned Judge (Satyanarayana Rao, J.,) also preferred to rest his decision upon another tangible ground, namely, that infringements of. the rights of the resident of a village in such matter as a pathway or a right of way through a street by such obstructions, cannot be deemed to constitute public nuisance within the meaning of section 91, Civil Procedure Code.
Raghava Rao, J., in Murugesa Mudaliar v. Arunagiri Mudaliar, : AIR1951Mad498 came to the same conclusion, name-that infringement of the rights of the residents of a village in respect of a public street did not constitute a public nuisance, and hence that the sanction of the Advocate-General under section 91 Civil Procedure Code was not required. Horwill, J., in Appayya v. Naralimhalu : AIR1938Mad338 held that, even if the subject-matter of the proceeding did constitute public nuisance with-in the scope of section 91, a mere failure to obtain the permission of the Advocate-General would-not affect the maintainability of the suit, if the other side did not take any objection at the earliest stage, In the present case, admittedly, the objection has not been taken at any stage prior to this second appeal.
(5) Hence, it appears to me to he clear that the second appeal fails, and ought to be dismissed, upon the precedents cited above. Above all, the most important reason why the appellant should fail is that the question what constitutes public nuisance within the meaning of section 91(1) Civil Procedure Code is a question of fact, and hence it is imperative that this bar of suit should to put forward at the earliest stage. It is note--worthy that under section 91(2) Civil Procedure Code, the fact that such sanction is required d' not take away any other right of suit which the party might independently possess. In Words and Phrases, Permanent Edition Vol. 28-A, page 729, under the section relating to public or private nuisance, I find the following dictum:
Nuisance is public one, if it affects enjoyment and health of persons as part of public while, passing to and from public place where people lead right to go, and it is the public annoyance, and not number of people annoyed that constitutes public nuisance. In the context of these criteria, I am not very clear whether a mere masonry construction would constitute a 'public nuisance' at all. In any event, it is abundantly clear that this is a question of fact which ought to have been pleaded at the earliest opportunity. and that the appellant is not entitled to raise the point as a question of law at the present stage. The second appeal fails and I dismissed with costs. No leave.
(6) Appeal dismissed.