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Ganapathy Mooppen and anr. Vs. Subba Nayakkan Alias Narayanasamy Nayakkan and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad276; 44Ind.Cas.834
AppellantGanapathy Mooppen and anr.
RespondentSubba Nayakkan Alias Narayanasamy Nayakkan and ors.
Cases ReferredPattas. Kandasawmy Mudali v. Subraya Mudali
Excerpt:
public street - caste procession, obstruction to--declaration of right and injunction, suit for, whether maintainable--special damage, proof of, requisites of--obstruction, what constitutes--specific relief act (v of 1887), sections 42, 52, 54. - .....on the defendants to show it is not, as under the local boards act all streets are presumed to be public streets, unless the contrary is shown. this particular street is shown in the survey plan, exhibit j, as a cart-track, and that plan is more than 30 years old. exhibit h, the settlement register, shows that 20 per cent. has been deducted for roads, channels, streets, etc., from all pattas, and the pattadars have no rights in such roads and channels merely because they happen to be shown in their pattas. kandasawmy mudali v. subraya mudali 1 ind. cas. 716 sets out the law on the point. in exhibit b, the defendants all say that they are determined not to allow processions to pass. in a criminal case, exhibit 1, they did not set up that it was a private road. d. w. no. 1's evidence.....
Judgment:

1. The plaintiffs-appellants are members of the Muppan caste and sued for a declaration, injunction and damages, because defendants, members of other castes, prevented their taking a marriage procession by the street along which it is, they alleged, customary to take them. The lower Appellate Court in the decree appealed against confirmed the District Munsif's decision, dismissing the suit in toto.

2. An attempt was made to support this decision on the ground that the lower Appellate Court erred in finding that the procession was prevented. It is true that it did not start and that its progress was not actually obstructed. But, as the lower Appellate Court found, it did not start owing to defendants' hostile attitude and we agree that so far as plaintiffs proved, (sic) sufficient proof of actual obstruction or the use of violence being unnecessary.

3. The next question raised was whether the road, the use of which was disputed, is public. But the lower Appellate Court did not decide it, holding as we understand that plaintiffs could not in any case succeed in the absence of proof of special damage and dealing with the question of special damage on the sole ground that their procession could in fact have gone by another route and that the postponement of the marriage was not entailed. This, it is urged, is too restricted a view, firstly, because proof of special damage is not necessary, secondly, because the lower Appellate Court should have found that proof of it was forthcoming.

4. As regards the first position we have been referred to a very recent unreported decision of this Court, Subbayya Nadan v. Aiyavoo Reddi (1917) M.W.N. 70 Second Appeal No. 2315 of 1914 in which Napier, J, (Ayling, J., expressing general concurrence) doubted the validity of the contention that mere obstruction to a procession was insufficient to justify grant of an injunction without proof also of loss of property or personal injury, his doubts being founded on the apparent inconsistency between certain observations in Andi Moopan v. Muthuvirama Reddy 29 Ind. Cas. 248 and Baslingappa v. Dharmappa 7 Ind. Cas. 653 and the decision in Kandasawmy Mudali v. Sabraya Mudali 1 Ind. Cas. 716. But firstly it is not clear that the learned Judge was dealing with the necessity for proof of special damage and not with the different question, to which I return, whether any had in fact been established. And next the three cases mentioned are distinguishable from the case which was before the learned Judge and from that now before us, because in each of the former there was a magisterial order obtained by the defendants forbidding the procession, whilst in the latter such orders were either not relied on or not established. This distinction being available, it is unnecessary to consider the ground of decision in these cases more closely and it is sufficient that in Kandasawmy Mudali v. Sabraya Mudali 1 Ind. Cas. 716 and Andi Moopan v. Muthuvirama Reddy 29 Ind. Cas. 248the necessity for proof of special damage in the absence of a magisterial order was fully recognised. Such proof must, therefore, be required in this case.

5. The remaining question is whether the lower Appellate Court's finding that the postponement of the marriage was not rendered necessary exhausted the matter. It no doubt was conclusive as regards one head, under which plaintiffs claimed pecuniary damages, the loss incurred in consequence of their preparation on the day fixed becoming useless. But proof of actual pecuniary loss is not essential. Vide Abzul Miah v. Nasir Mahommed 11 Ind. Dec. 367; Siddeswara v. Krishna 1 M.L.J. 321 and the judgment of Sundara Aiyar, J., in Khaji Syyad Hussain Saheb v. Ediga Narasimhappa 16 Ind. Cas. 952 : (1913) M.W.N. 991. The true principle is that laid down in a case, which has been followed frequently in this country Winterbottom v. Derby (Earl): (1867) 2 Ex. 316 that ''he only can maintain an action for an obstruction who has sustained some damage peculiar to himself, his trade or calling.' The points for consideration in the present case are accordingly whether defendants' conduct caused plaintiffs only such damages as any member of the public would have suffered through loss of time or having to go by a way other than the one he preferred; or whether plaintiffs were, as they alleged, debarred, because they were Mooppans, from taking their procession by the road customarily used for that purpose by that community and, therefore, suffered damage peculiar to themselves as members of it.

6. We, therefore, call on the lower Appellate Court for a finding in the light of the foregoing on the issue 'whether plaintiffs suffered any special damage?'; and we also ask it to return a finding on the District Munsif's issue No. 1, whether the street is a private street?' Findings shall be returned on the evidence on record within six weeks and seven days will be allowed for filing objections.

7. In compliance with the order contained in the above judgment the District Judge of Madura submitted the following

FINDING

1. The High Court has remanded this appeal to me for a finding as to Whether the street is a private street, and (2) Whether plaintiffs suffered any special damage.

2. As to whether the street is a private street. The onus is clearly on the defendants to show it is not, as under the Local Boards Act all streets are presumed to be public streets, unless the contrary is shown. This particular street is shown in the survey plan, Exhibit J, as a cart-track, and that plan is more than 30 years old. Exhibit H, the Settlement Register, shows that 20 per cent. has been deducted for roads, channels, streets, etc., from all Pattas, and the Pattadars have no rights in such roads and channels merely because they happen to be shown in their Pattas. Kandasawmy Mudali v. Subraya Mudali 1 Ind. Cas. 716 sets out the law on the point. In Exhibit B, the defendants all say that they are determined not to allow processions to pass. In a criminal case, Exhibit 1, they did not set up that it was a private road. D. W. No. 1's evidence before the Magistrate was that it was a public street. D. W. No 3, the Karnam, says that the street is partly Poramboke and partly a Patta land. The defendants have produced no Pattas to show that this street is private, and even if they did do so, Exhibit H would show that deduction had been made for the cart-track as it then was and that it was not a part of the Pattadar's private land.

My finding is that the street is a public street.

3. Issue No. 2.--The plaintiffs did not set up any special damage. They claimed that it is a public street and as such they were entitled to use it. It is not open to the public to file a suit for an injunction and declaration with reference to the obstructing of a street, unless special damage is proved. The plaintiffs have got to show that they have suffered special damage. Originally, they set up losses owing to the marriage being adjourned, also costs of the criminal cases and also loss of reputation making Rs. 536-4-0 in all and they sued for Rs. 350. In appeal, they claimed Rs. 200 only on the first two items, but in the High Court, they claimed only Rs. 10 as damages. As nothing is shown as to how this Rs. 10 is arrived at, presumably it is based on the lower Court's finding that had it had to assess damages, it would have fixed Rs. 10. Plaintiffs are certainly not entitled to damages for costs of the criminal oases and they have withdrawn their claim for loss of reputation.

4. Therefore, presumably they claim only on the first ground of losses owing to the marriage being adjourned in that they had to pay Rs. 25 for horses, Rs. 12 for flowers and Rs. 25 for a piper; but it is in evidence that they could have gone on horseback with the piper and with the flowers to the second temple by another route as they had already visited the first. Therefore, I do not consider that these items of expenditure can be regarded as special damages. The only damage that apparently they suffered was not being allowed to go on horseback through this particular street. I find it difficult to fix any monetary value on this obstruction.

5. I would, therefore, find that no special damage has been made out.

6. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court on the issues referred by this Court for trial, the Court delivered the following

7. Defendants' objection to the finding that the street in question is public is not pressed. We accept the finding.

8. On the other point remanded we understand the District Judge to have found that plaintiffs suffered special damage in consequence of their not being allowed to ride on horseback through the street, although that damage was not assessable in money. We dissent only from the latter portion of this, for we can see no reason why compensation cannot be awarded on an estimate of the moral damage suffered. It is not, however, necessary for us to ask the District Judge to make such an award or to make one ourselves, since appellants do not press for damages and their right to them is material only as justifying their claim to the other reliefs asked for, a declaration and injunction. As the street is public and special damage has been sustained, their right to these reliefs is established. We, therefore, allow the appeal to the extent that the lower Court's decisions are set aside, that plaintiffs will have a decree for declaration that they have a right to pass through the street lying east of the Tirumangalam road on horseback on the occasion of marriages and to a corresponding injunction.

9. The parties will pay and receive proportionate costs throughout.


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