1. This appeal arises out of a suit brought by the plaintiffs under the provisions of Section 30 of the Code of Civil Procedure for establishment of their right of way over the land of the defendant and for a declaration that the defendant had no light to obstruct the right which was a public right of way over his land. It was also alleged that, by that obstruction, damage had been caused to the public in general and to the plaintiffs in particular. The Court of first instance found that the plaintiffs had proved their case, whether they brought it on their own behalf or under the provisions of Section 30 of the Code of Civil Procedure on behalf of a certain section of the community, and gave them a decree for the reliefs sought. On appeal the lower Appellate Court has dismissed the suit without going into the merits holding, in the first instance, that the plaintiffs, in their individual capacity, were not entitled to maintain the suit, as they had failed to prove any special damage, and, in the next place, that they were not entitled to maintain the suit on behalf of any section of the community under the provisions of Section 30, C.P.C., because they had not complied with that section and published the necessary notice in the Government Gazette. The plaintiffs have appealed to this Court. The judgment of the lower Appellate Court has been read to me and, in my, opinion, it is most unsatisfactory. I am of opinion that the case has been tried in the lower appellate Court with an entire want of proper care. The learned pleader who appears for the respondents admits that it is impossible to support the judgment of that Court on the grounds on which it is based. In the first instance the Judge of the lower Appellate Court has found that the plaintiffs have failed to prove special damage. The plaintiffs' allegation in the plaint was that the road which the defendant is said to have obstructed was a road leading from their village to their fields and also leading from their village to the public bazar and ghat and that there was no other convenient road for them to use. These facts appear to have been established and, in spite of the fact that the learned Judge of the lower Appellate Court refers in his judgment to the case of Abzul Miah v. Nasir Mahomed 22 C. 551. He comes to the conclusion that these facts which have been proved by the plaintiffs are not sufficient to establish special damage. Apparently, the learned Judge did not read the judgment which he quoted; for, it is distinct authority that the facts established in this case were sufficient under the law to constitute special damage and to entitle the plaintiffs to a decree. I, therefore, hold that the finding of the lower Appellate Court that the plaintiffs arc not entitled to succeed in the suit because they have failed to prove special damage is wrong and must be set aside.
2. The learned Judge of the Court of Appeal below then goes on to say: It does not appear from the record that the provisions of Section 30, C.P.C., were strictly complied with' and further on he says: There is no evidence on the record to show that notice of the institution of the suit was given by public advertisement'. Before arriving at this conclusion, the Subordinate, Judge does not appear to have examined the record in order to ascertain what, in fact, it contained. The learned pleader who appears for the appellant has pointed out to me on the record a receipt from the Government Secretariat for the sum of Rs. 3-8 granted to the plaintiffs for the insertion of an advertisement bearing No. 387 in the Calcutta Gazette. The learned pleader has also pointed out to me that at page 436 of Vol. II of the Calcutta Gazette of 1904 the advertisement appears. The statement in the judgment of the Subordinate Judge is, therefore, entirely wrong and I can only say that, in making it, he has been guilty of very great carelessness. The result, therefore, is that I sot aside the finding of the Subordinate Judge that the plaintiffs are not entitled in this suit to succeed because they have failed to comply with the provisions of Section 30, C.P.C. The Subordinate Judge having made all these mistakes in his judgment has afterwards failed to decide the question whether there had, in fact, been an obstruction by the defendant and whether the plaintiffs were entitled to the reliefs which they sought. It is, therefore, necessary to send the case back to the lower Appellate Court in order that that Question which appeal's to be the 4th ground stated in the judgment of that Court may be tried. So far as the other grounds are concerned, the judgment and decree of the lower Appellate Court are set aside and the findings of the Court of First Instance are affirmed.
3. The plaintiffs are entitled to their costs in this appeal from the respondents and I think it very undesirable that the case, on remand, should be tried by the Subordinate Judge who has failed in such a marked manner to do proper justice between the parties in hearing it in the first instance on appeal. I, therefore, direct that the case be sent to the District Judge to be heard by him or by another Subordinate Judge at Alipore, for hearing. Costs in the lower Courts must depend on the result of the fresh decision.