1. The litigation concerns a narrow strip of land about 3 inches wide, which runs between the backs of the houses of the plaintiff and defendant. There are windows of plaintiff's house overlooking this strip but it does not appear whether any door of his house, which has two road frontages besides, opens on to it.
2. The facts either admitted or found are that up to the year 1909 this strip was a drain. In that year the connected latrine system was introduced by the Corporation and from that time the drain began to silt up. In 1913 the defendent paved the strip with bricks, Subsequently he closed it at both ends.
3. The plaintiff brought this suit to have the obstruction removed alleging that the drain was a public drain, which had subsequently become a public passage, and asked for a declaration to that effect. In paragraph 7 of his plaint he set out the damage which he had suffered. He begins by asserting that he cannot enter on or pass over the land, and then sets out the special damage that he has been deprived of the only means of repairing the eastern wall of his premises as he is now unable to have scaffolding put on the strip of land for the purpose of repair and as a consequence his house is deteriorating in value.
4. In the alternative, in case the strip of land should be found to be the property of the defendant, he asked for a declaration that he had acquired as an easement the right of entering on the land and repairing his house by means of scaffolding erected on the land.
5. He also asked for a perpetual injunction restraining the defendant from obstructing the passage.
6. The Munsif gave a decree that the passage in dispute be declared to have been a public drain converted into a lane on which the plaintiff had a right to go for making necessary repair to his house by scaffolding, that the defendant had no right to obstruct him and that the plaintiff be further declared to have an easement of necessity. He directed the defendant to open a door in the newly erected wall and to keep it open and gave a permanent injunction restraining him from closing the passage and door.
7. This decree was not varied on appeal by the District Judge, but the learned Pleader for the respondent concedes that he cannot ask for it to be upheld in its entirety, and that the declaration that plaintiff has an easement of necessity must be expunged as also that portion which declares that the plaintiff has a right to erect scaffolding on the land.
8. The Munsif found that the land did not belong to the defendant, and this finding was upheld by the learned Judge who apparently came to the conclusion that it was Khas Mahal land.
9. As regards the question of easement, the Munsif considered that plaintiff had not established user for a sufficient period to give him the right claimed. Before the Appellate Court plaintiff did not rely on this right in view of the contention that the defendant had no title to the land.
10. As regards the public right of way, the learned Judge's findings are embodied in the following passages: 'there can be no doubt that for very many years, at least since 1873, anybody who wished to pass by this land was able to do so, though as a rule it was only used by Mothers. But one witness proves that he went that way in order to repair his houses further north and another witness proves that when a boy he passed by this alley on his way to play in the field beyond.... I have no difficulty in holding that any member of the public who wished to do so could pass by this alloy between the years 1873 and 1913.' As regards special damage the learned Judge said, that the plaintiff sustained special damage is obvious from the fact that his houses are bounded on the east by the obstructed land. It is idle for the defendant to say he is willing to allow the plaintiff to erect scaffolds when necessary, especially when it is found that the defendant is himself a trespasser.'
11. A number of grounds have been urged in this appeal, viz., that the learned Judge used statements which were not admissible in evidence against defendant in coming to the conclusion that ho had no title, that the restricted use to which the learned Judge found the passage had been put was not sufficient to justify the finding of dedication as a highway, that if there was any dedication to the public at all it was dedication for the purpose of a drain and that as the drain existed up to 1909, there was no evidence of dedication as a highway, for when the purpose of the dedication ceased the land would revert to the owner, that the special damages which the plaintiff claimed to have suffered did not justify his suit in respect of a public right, and that the Secretary of State and the Corporation ought to have been made parties to the suit.
12. It is not necessary to discuss all these grounds. Obviously the question of dedication, which depends on title and intention, does not arise at all if the defendant or his predecessors never had any title to the land.
13. The appeal may, however, be disposed of on the ground that the suit was not maintainable in the absence of proof of special damage. I have already set out what was the damage which plaintiff alleged that he had suffered and the learned Judge's remarks on the question of special damage. That the plaintiff could not enter on or pass over the land is not sufficient. He must show some damage beyond that suffered by the rest of the public who use the way: Winterbottom v. Derby Earl (1867) 2 Ex. 316 ; 36 L.J. Ex. 194 ; 16 L.T. 771 ; 16 W.R. 15. The case of Harihar Das v. Chandra Kumar Guha 49 Ind. Cas. 79 ; 23 C.W.N. 91 is not an authority for the proposition that mere inability to use the passage amounts to special damage. There the plaintiff was held to have suffered special damage because he had been put to expense in pursuing another route. The necessity of provins special damage was clearly realised in the plaint. It was alleged and found by the learned Judge to be the inability to erect scaffolding for the repair of his house. Now if the passage is a public high way, it is clear that the plaintiff had no right to erect scaffolding on it. Obviously the plaintiff cannot sue in respect of a nuisance when the special damage which he asserts is the inability of himself to commit a nuisance. The suit was clearly not maintainable.
14. The appeal is accordingly allowed and the suit is dismissed. The defendant will get his costs in all the Courts.