Ladhuram v. Municipal Board, Ganganagar — 1966 DIGILAW 104 (RAJ)

SHINGHAL, J.—These nine second appeals arise out of suits Nos. 75 of 1957, 94 and 157 of 1960 and 20 and 200 of 1962. The first of these suits stands dismissed by the impugned judgment and decrees of the learned District Judge of Ganganagar, dated March 2, 1959, and the first two appeals of the plaintiffs have arisen for that reason. The remaining suits have been decreed and this is why the defendants have preferred the other seven second appeals. There is not much difference in the basic facts of the five suits and the nature of the dispute is quite similar. They can be disposed of on the basis of the admitted facts, as common questions of law and facts arise in all of them. This is why they have been argued together, virtually as companion appeals, and I propose to dispose them of by this single judgment. 2. The parties to the suits are no doubt different, except that the Municipal Council of Ganganagar, which shall hereafter be referred to as the Municipality, is a defendant in all of them. The common admitted facts are like this : In the Dhan Mandi area of Shri Ganganagar town there is a road leading from the Kotwali to the Lakhar Mandi (which shall hereafter be referred to as the Kotwali road). On its western junction there is a road known as the Dharamshala road. Both these are public roads or highways. The plaintiffs in four of the suits own shops and/or nohras abutting on the Kotwali road, while the plaintiff in the remaining suit (No. 200 of 1962) owns a shop abutting on the Dharamshala road. From these ends or extremities of the plaintiffs shops or nohras which abut on the aforesaid roads, the opposite line of private properties is situated at a distance of 50 feet. Some 25 or 30 years ago, the Municipality let out substantial portions of these public roads on what is locally known as tehbazari basis, to various persons, for putting up temporary wooden stalls for the purpose of using them as shops or other business premises. The stalls have been set up by the persons who have been joined as defendants in the suits and who shall hereafter be referred to as the stall holders. The stalls have been set up by the persons who have been joined as defendants in the suits and who shall hereafter be referred to as the stall holders. In between the stalls and the properties of the plaintiffs, there are narrow strips of land or lanes which are no more than 2 to 3 feet wide ; otherwise the tehbazari stalls virtually cover up the properties of the plaintiffs abutting on the two public roads. A considerable part of the two public roads has therefore been obstructed by the tehbazari stalls and their original width of 50 feet has been substantially reduced. The actual position of the roads, the properties of the plaintiffs and the stalls has been brought out in a map which has been placed on the record by Mr. M.M. Vyas, The correctness of the map has been admitted by all the other learned counsel. The Rajasthan Government conveyed an order to the Municipality on September 11, 1952, for the restoration of the entire width of the Kotwali road by removing the stalls, but that order was not carried out. The stall holders themselves raised a suit for the issue of an injunction against their impending eviction from the tehbazari premises, but it was dismissed on July, 17, 1956. All these facts are admitted in this Court. The plaintiffs therefore challenged the legality of the obstructions on the public ways, and prayed for the issue of a perpetual injunction directing the Municipality to refrain from letting out any portion of the public roads on tehbazari in future, and also for the issue of a mandatory injunction for the removal of the obstructions. Alleging that the obstructions continuously interfered with their rights, the plaintiffs pleaded that they gave rise to a continuous cause of action and that the suits were within limitation for that reason. 3. Various pleas were taken in defence, but I shall refer only to these which have a bearing on the controversy in this Court and which are sufficient for deciding these cases. It was pleaded that the Municipality had the right, under the law, to let out the lands in question for the setting up of the temporary stalls on teh-bazari basis and that the plaintiffs were not obstructed or deprived of their rights by the stalls. It was pleaded that the Municipality had the right, under the law, to let out the lands in question for the setting up of the temporary stalls on teh-bazari basis and that the plaintiffs were not obstructed or deprived of their rights by the stalls. It was also pleaded that the plaintiffs had no right to open any doors on those portions of their properties which abut on the two roads and that they could not claim any right of access through such doors because it was one of the conditions of the sale that no such door should be opened. The defendants also took the plea that the suits were barred by limitation. 4. A number of issues were framed in each of the five cases. Suit No. 75 of 1957 was decreed by the trial court on April 23, 1958. Two first appeals were filed before the District Judge of Ganganagar who allowed them by his judgment dated March 2, 1959 and dismissed the suit. This has given rise to the plaintiffs second appeals Nos. 341 and 359 of 1959. Suit No. 94 of 1960 was decreed by the trial court on October 3, 1961 and the decree has been upheld on first appeal by the judgment dated January 30, 1962. The defendants have preferred second appeals Nos. 254 and 113 of 1962. Suit No. 157 of 1960 was also decreed on October 3, 1961 by the trial court and as the appeals against the decree were dismissed by the District Judge on January, 30 1962. The defendants have preferred second appeals Nos. 102 and 255 of l962. Civil suit No. 20 of 1962 was dismissed by the trial court on October 4, 1963. The plaintiffs preferred their first appeal to the District Judge of Ganganagar, which was allowed on December 3, 1963, and so the defendants have preferred second appeal No. 1 of 1964. In the remaining suit No. 200 of 1962, a decree was passed by the trial court on January, 29, 1964, and the defendants first appeals were dismissed on September 30, 1964. They have preferred second appeals Nos. 540 of 1964 and 46 of 1965 for that reason. 5. These are the facts and circumstances which have given rise to these nine second appeals. 6. They have preferred second appeals Nos. 540 of 1964 and 46 of 1965 for that reason. 5. These are the facts and circumstances which have given rise to these nine second appeals. 6. The first and the foremost question for consideration is whether the Municipality had the authority, under the law, to let out the lands in question for the setting up of the stalls on tehbazari basis. According to the learned counsel appearing on behalf of the Municipality, tehbazari is a sort of temporary or annual letting out of Municipal lands, by way of license, for the setting up of temporary wooden stalls which are utilised as shops or other business premises and form an important source of revenue to the Municipality. In order to decide whether the Municipality had any such authority as aforesaid, it would be convenient to examine, first, the question whether the width of the Kotwali and the Dharamshala roads was 50 feet, for it has been strenuously argued by Mr. Vyas that this was not so and that the width of the public ways was no more than that subsisting at present in between the two rows of stalls. According to the learned counsel the width of the Kotwali road is about 24 feet. As regards the Dharamshala road, it has been contended by Mr. Arora that it was not more than 30 feet wide. Mr. Vyas has argued, on the authority of The Municipal Board. Manglaur vs. Mahadeoji Maharaj (1) that the width of a highway dedicated to the public depends upon the extent of the user and that the Municipality and the other defendants could therefore show, inspite of any admission to the contrary, that width of the highway dedicated to the public was that portion only which lays in between the two rows of the stalls. 7. It is true that a highway or a public road can be dedicated subject to the obstacles thereon and there is nothing illegal about it. But the obstruction should be coeval with the exercise of the right of way, and "living memory" is usually a good test to apply in such cases. I may refer to the following passage from Pratt & Maclcenlies Law of Highways (twentieth Ed.) Pp. But the obstruction should be coeval with the exercise of the right of way, and "living memory" is usually a good test to apply in such cases. I may refer to the following passage from Pratt & Maclcenlies Law of Highways (twentieth Ed.) Pp. 23 and 24— "The legality of obstacles in a highway, which would otherwise be nuisances, depends on the supposition that the highway was dedicated subject to them. But when the evidence shows that the obstacle (such as a cellar-flap) has existed in its present condition as far back as living memory goes, "the jury ought to draw the conclusion that it has existed as long as the street, and that the dedication of the way to the public was with the cellar-flap on it, and subject to the reservation of its being continued there........." The Crown may dedicate away over Crown lands, and the evidence required to establish dedication by the Crown is the same as in the case of a private owner." I have quoted the passage regarding dedication by the Crown because it is the admitted case of the parties that the two public ways were dedicated by the Ruler of the former Bikaner State long before the formation of the present Rajasthan State. 8. In the present cases, however, it is conceded that there is no evidence to show that the dedication of the public ways was subject to any obstruction or speaking more particularly, of obstruction by the tehbazari" stalls. It cannot therefore be said that the obstructions were of the same date of origin as the dedication of the public ways and there can be little doubt that they are not coeval with the dedication. In fairness to the learned counsel for the defendants, it may be mentioned that the have themselves not placed their cases that high and there is no plea to that effect either. On the other hand, a perusal of the pleadings shows that the defendant admitted that the obstructions were of a much later origin, being no more than 25 to 30 years old. Moreover in suit No. 75 of 1957, it was clearly admitted by the defendants that the Kotwali road was 50 feet wide. In suit No. 94 of 1960, it was pleaded in defence that the stalls were being let out for the last 30 years. Moreover in suit No. 75 of 1957, it was clearly admitted by the defendants that the Kotwali road was 50 feet wide. In suit No. 94 of 1960, it was pleaded in defence that the stalls were being let out for the last 30 years. In suit No 157 of 1960, no clear defence of the obstruction being of the same date as the dedication was taken, but it was pleaded that a part of the public way was converted into stalls some 30 years ago. In suit No. 20 of 1962 it was pleaded that the width of the Kotwali road was only 18 feet and that the tehbazari stalls had been let out even before the Municipality was constituted. In case No. 200 of 1962, the peal was that the stalls were 25 to 30 years old. It would thus appear that the defendants did not venture to take the plea that the dedication was subject to obstruction by the stalls. On the other hand, the plea was that the obstructions were 25 to 30 years old. So when it is an admitted fact that the town of Ganganagar came into existence much earlier, it is obvious that the obstructions were not coeval with the dedication. "Once a highway always a highway", is a well known and well established legal maxim and any subsequent obstruction, which is not shown to be authorised by statute, cannot be upheld. 9. The public, it would therefore follow, are entitled to use the whole width of the public way, however wide it may be, for they are entitled to the benefit of the original dedication and to use every part of the public way : Queen-Empress vs. Virappa Chetti(2), Firm Kasturi Lal Santlal vs. Municipal Committee, Jagraon(3), Patna City Municipality vs. Dwarka Prasad Sinha(4), and District Board of Manbhum vs. Bengal Nagpur Railway Co.(5). The plaintiffs are thus entitled to the whole width of 50 feet of the two public ways in question, which should therefore be restored, unless, ofcourse, it could be shown that the obstructions thereon were authorised by the statute. 10. It is in this connection that it has been argued on behalf of the defendants that sec. 51(f) of the Bikaner Municipal Act, 1923, had the effect of vesting the two public ways in the Municipality and of placing their control in the Board, and that sec. 10. It is in this connection that it has been argued on behalf of the defendants that sec. 51(f) of the Bikaner Municipal Act, 1923, had the effect of vesting the two public ways in the Municipality and of placing their control in the Board, and that sec. 113 of that Act authorised the Municipality to close, divert or discontinue any public street. It has further been argued that a similar right and authority was given to Municipality under secs. 48(2), 99 and 100 of the Rajasthan Town Municipalities Act, 1951, and secs. 92 and 161 of the Rajasthan Municipalities Act, 1959, one or the other of which was in force at the institution of these suits. 11. I have gone through all these provisions. Sec. 51(f) of the Bikaner Municipal Act, 1923, merely provided that all public streets shall, inter alia, vest in and be under the control of the Municipality and so the provision was nothing more than a declaration that the public streets shall vest in the Municipality and be under its control. At the same time, care was taken to provide in the section that the property so vested in the Municipality "shall be held and applied by it for the purposes of this Act". It would not therefore be correct to say that the public streets became the property of the Municipality in the sense that the Municipality could reduce their width or obstruct them in any other manner it liked. Sec. 113 also cannot be said to give the Municipality the power to place an obstruction on any of the public streets vested in it by setting up temporary stalls thereon. That section merely provided that the Municipality could close temporarily any public street or any part thereof for any public purpose, or divert, discontinue or close permanently any public street. As is obvious, the setting up of the tehbazari stalls would not come within the purview of these provisions. 12. That section merely provided that the Municipality could close temporarily any public street or any part thereof for any public purpose, or divert, discontinue or close permanently any public street. As is obvious, the setting up of the tehbazari stalls would not come within the purview of these provisions. 12. Realising that the above provisions of the Bikaner Municipal Act could not sustain the action of the Municipality in setting up the tehbazari stalls, an argument was made that the "Bye-laws for the regulation of Tehbazari Traffic and other temporary occupation of land" were in force in Ganganagar town by virtue of notification No. 13 of March 22, 1937 and that the Municipality could let out portions of the two Public ways as they vested in it under the Bikaner Municipal Act, 1923. The Bye-laws purport to have been made with reference to secs. 55(A) and 81 read with secs. 117 and 118. Sec. 55(A) deals with the imposition of taxes with the sanction of His Highness Government, and the letting out of portions of the public roads for the setting up of the stalls cannot be said to be an imposition of a tax. Moreover, the learned counsel for the defendants have not been able to show that a date was specified by His Highness Government under sec. 56(7) for the coming into force of the tax. So the Bye-laws remained a dead letter, as has been held in Ramjilal vs. Municipal Board, Bhadra(6) in regard to similar bye-laws of the Bhadra Municipality of the former Bikaner State. Sec. 81 is equally irrelevant for it deals with the regulation of offensive and dangerous trades. Of the remaining provisions, sec. 117 relates to the removal of projections and obstructions, while sec. 118 prescribes the fine to be imposed on a person who deposits goods for sale or other articles of merchandise on any street after receiving a notice from the Municipality not to do so. The aforesaid Bye-laws cannot there-fore be said to be authorised under any provision of the Bikaner Municipal Act, 1923 and since, so far as the setting up of the stalls is concerned, they conflict with the purpose for which the public roads were vested in the Municipality by virtue of sec. 51, they cannot be upheld and must be held to be unenforceable. 13. The provisions of secs. 51, they cannot be upheld and must be held to be unenforceable. 13. The provisions of secs. 48(2), 99 and 100 of the Rajasthan Town Municipalities Act, 1951, could not also be said to authorise the setting up of any such obstructions. Sec. 48(2) had the effect of vesting in and transferring to the Municipality ail the public streets, and pavements etc. along with the control therein, with the direction that they shall be held and applied by it as a trustee and subject to the provisions and the purposes of the Act. So the section merely transferred the ownership and the control of the public streets to the Municipality which was. at the same time, required to hold and apply them as a trustee for the Act and not to defeat that purpose by causing obstructions thereon. Sec. 99 gave the power to the Municipality to Jay out and make new streets and, inter alia, to widen, open and enlarge or otherwise improve any street, and to turn, divert, discontinue or stop up any such streets and, "subject to the provisions of sub sec. (2) of sec. 36, to lease or sell any such land, theretofore used or acquired by the municipal board for the purposes of such streets as may not be required for any public street or for any other purposes" of the Act. Sec. 36 provided that the Municipality would be entitled, among other things, to lease any immovable property "so far as is not inconsistent with the provisions and purposes of this Act". So it cannot be said that sec. 99 of the Act of 1951 gave the Municipality the authority to cause obstructions on a public street. The powers which were given to the Municipality over the public streets were meant to be exercised as a trustee and in a manner which was not inconsistent with the provisions and purposes of the Act. The setting up of stalls over a public way so as to narrow its width almost to half, when it passes through a highly crowded locality in a busy town like Ganganagar, cannot be said to be a purpose which was consistent with the provisions of the Act. The setting up of stalls over a public way so as to narrow its width almost to half, when it passes through a highly crowded locality in a busy town like Ganganagar, cannot be said to be a purpose which was consistent with the provisions of the Act. Nor is section 100 applicable because it relates to the temporary closure of streets for the purpose of repair or the carrying out of any work connected with drainage, water supply or lighting etc. Secs. 92 and 161 of the Rajasthan Municipalities Act, 1959 are virtually "reproductions of secs. 48 and 99, respectively of the Act of 1951 and I need not consider them separably. 14. What follows therefore is that there is no provision in the statute which could be said to authorise the Municipality to place the obstructions on the two public ways in question by converting sizable portions thereof into stalls, howsoever temporary the licences or leases may be. So when the two public ways were 50 feet wide, any structures on them which were not necessary for their maintenance or user as public highways cannot be continued. For this view I would refer merely to The Municipal Board, Manglaur vs. Mahadeoji Maharaj(l) on which the learned counsel for the defendants had placed considerable reliance in another connection. 15. It may be mentioned that the provisions of sec. 48(2) of the Rajasthan Town Municipalities Act, 1951 are similar to sec. 50 of the Bombay District Municipal Act, 1901, and sec. 63 of the Bombay Municipal Boroughs Act, 1925, while the provisions of sec. 99 of the Rajasthan Act are similar to sec. 90 of the Bombay District Municipal Act, 1901 and sec. 114 of the Bombay Municipal Boroughs Act. The effect of the provisions of secs. 50 and 90 of the Bombay District Municipal Act was considered in Emperor vs. Vishvanath Nana Karpe (7). In that case some logs of timber were kept on a public street and caused obstruction thereto. The defence was that the Municipality had authorised timber dealers to use a strip of the street for the purposes of exposing timber for sale and that this had been done for 40 years. In that case some logs of timber were kept on a public street and caused obstruction thereto. The defence was that the Municipality had authorised timber dealers to use a strip of the street for the purposes of exposing timber for sale and that this had been done for 40 years. It was held however that public streets vested in the Municipality for the purpose of being maintained as public streets under sec.50 and that the legislature did not intend, by the general power it gave to the Municipality to discontinue or stop up public streets, that it should use that power in contravention of the intention of the law. Their Lordships held that it would be perverting the proper meaning of the section to say that it contemplated a case of stopping up a portion of a street so as to provide a market thereon. The decision in that case was followed in Municipal Committee, Delhi vs. Mohammad Ibrahim (8), Chellaram Verhomal vs. Emperor (9) and Talakchand Dhanji vs. Dhoraji Municipality (10) and, if I may say so with respect, the observations made in it regarding the legal effect of the provisions in question brings out the true intention of those provisions. 16. I may as well refer to District Board of Manbhum vs. Bengal Nagpur Railway Co. (5) in which it has been held that a Municipal Board cannot lease out road side land for it holds it for maintaining the road. Reference may also be made to Biswanath Sinha vs. Sudhir Kumar Banerji (11) for a similar view. 17. The learned counsel for the defendants have relied on the Municipal Commissioner for the City of Madras vs. Sarangapani Mudaliar (12). Choudhury Bibhuti Narayan Singh vs. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur (13) and Khair Mohd. Khan vs. Mt Jannat (14). In the first of these cases, the defendant erected a dial more than 40 years before the suit and the Municipality of Madras sued to recover it as forming part of a highway strip of the land adjoining the house of the defendant. It was on those facts that it was held that the defendant and his predecessors in title had acquired a title by adverse possession, and so the facts of that case were quite different. It was on those facts that it was held that the defendant and his predecessors in title had acquired a title by adverse possession, and so the facts of that case were quite different. Even so, the view taken in it does not appear to have been approved in S. Sundaram Ayyar vs. The Municipal Council of Madura and the Secretary of State of India in Council (15) so far as the proprietory right of the Municipal Corporation was concerned. In Choudhury Bibhuti Narayan Singhs case (13), the encroachment was on a village path way, which is on quite a different footing and the question of dispossession which was the basis of the decision cannot be said to arise in present cases because, as I shall show in a while, there can be no question of dispossession in respect of a public way or a highway. It is true that the case has been cited with approval in Balakrishna Savalram Pujari Waghmare vs. Shri Dhyaneshwar Maharaj Sansthan (16), but that was for the purpose of upholding the contention that where the impugned act amounts to ouster, there is no scope for the application of sec. 23 of the Limitation Act, which is a different matter and which I shall examine when I deal with the question of limitation. Khair Mohd. Khan vs. Mt. Jannat (14) was a case of the construction of a chabutra on a common land or court-yard owned by joint owners. It was not a case of a highway and is really of no relevance. It was also cited with approval by their Lordships of the Supreme Court in Bala Krishnas case (16), but that was also in approval of the principle that where the impugned act amounts to ouster, sec. 23 of the Limitation Act has no application. That case is therefore equally irrelevant for the purposes of the present controversy. 18. It would therefore be an irresistible conclusion to hold that the Municipality had no authority under the law to let out the offending stalls so as to obstruct the two public ways directly, by substantially reducing their original width of 50 feet. The obstructions amount to public nuisances and are actionable for that reason. 19. Connected with this part of the controversy is the question whether the plaintiffs had the right to bring their suits in respect of the public nuisances. The obstructions amount to public nuisances and are actionable for that reason. 19. Connected with this part of the controversy is the question whether the plaintiffs had the right to bring their suits in respect of the public nuisances. They have not stated that they had obtained the consent in writing of the Advocate General within the meaning of sub-sec. (1) of sec. 91 of the Civil Procedure Code and it has been argued on behalf of the defendants that the suits were not maintainable because there could be no special damage to the plaintiffs on the mere ground that their premises abutted on the public roads or highways. It has been contended that the plaintiffs could only claim their individual or special right of stepping from their own premises on to the public ways and that since there exist strips of land measuring 2 to 3 feet between the stalls and the plaintiffs properties (shops or nohras as the case may be), it cannot be said that there is any obstruction to the private right of the plaintiffs, for immediately a person steps on a public way, and uses it, what he uses is not a private right but a public right : W.H. Chaplin & Co. Limited vs. Mayor of the City of Westminster(17). 20. It seems to be beyond controversy, however, that sub-sec. (2) of sec. 91 of the Code of Civil Procedure does not confer any special right on a private individual to maintain a suit in respect of a public nuisance. That right exists independently of the section. The reason is that if a person has an individual or special interest in a public right and has sustained particular damage, there is no reason why he should be driven to the necessity of approaching the Advocate General for the purpose of channelising his claim, as the right which he seeks to exercise is a private right and not a public right. Two questions therefore arise for consideration; whether the plaintiffs have any such private right and, if not, whether they are justified in making the submission that the bar of sub-sec. (1) of sec. 91 has been waived by the defendants? 21. Conveniently enough, there is, as has already been mentioned, no dispute regarding the relevant facts in all the five suits. (1) of sec. 91 has been waived by the defendants? 21. Conveniently enough, there is, as has already been mentioned, no dispute regarding the relevant facts in all the five suits. It is admitted, and has been held above, that the properties of the plaintiffs abut on the 50 feet wide public ways. In between the central parts of the two public ways (which alone are open to use at present) and the plaintiffs properties, there are the temporary stalls of the defendants which stand at a distance of some two to three feet from those properties. The plaintiffs can therefore step out of their properties on to the public ways and, in that sense, they are not adversely affected by the obstructions. The following observation in W. H. Chaplin & Co. Limited vs. Mayor of the City of Westminster (17) on which considerable reliance has been placed by the learned counsel for the defendants lucidly brings out the law to that effect— A person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway, and if any obstruction be placed in his doorway, or gateway, or, if it be a river, at the edge of his wharf, so as to prevent him from obtaining access from his own premises to the highway that obstruction would be an interference with a private right. But immediately that he has stepped on to the highway, and is using the highway, what he is using is not a private right, but a public right." That being so, the plaintiffs cannot raise the plea that their individual or particular right of stepping on to the public roads has been adversely affected. But I find from a perusal of the records that they joined issue with the defendants on their other plea that because of the obstruction of the public ways by the offending stalls, they were deprived of their right to use the whole width of the public ways for the beneficial or full or free enjoyment of their respective properties. That was therefore an important point in controversy between the parties and it was tried and decided. 22. As has been stated, the plaintiffs shops or nohras abut on the public ways and are being used, or are capable of use, as business premises. That was therefore an important point in controversy between the parties and it was tried and decided. 22. As has been stated, the plaintiffs shops or nohras abut on the public ways and are being used, or are capable of use, as business premises. It is admitted that there are doors in those premises which open on the public ways. The defence that they were opened in breach of the conditions under which the plots were originally sold by the State to the plaintiffs or their predecessors-in-title, is hardly relevant for that is a matter between the plaintiffs and the State and the State has not, it is also admitted, thought it proper to take any legal action for the closure of the doors inspite of the lapse of several years. The fact therefore remains that the stalls come in between the plaintiffs premises and the public ways. A perusal of Mr. Vayas site plan shows that, to say the least, the plaintiffs would have to take a longer route to reach the main road every time they desired to leave their premi ses and reach the center of the road (which alone is available for traffic at present) or its opposite extremity. They are therefore justified in pleading that the obstructions deprived them of the use of the full width of the roads for the free and full enjoyment of their properties. For instance, the rows of stalls would prevent easy and convenient access to the plaintiffs and their customers, the passage of vehicles on a narrow strip of 2 or 3 feet is out of the question and, as is obvious, the premises have become less prominent from the center of the public roads because of the intervening stalls. So when the plaintiffs are shown to suffer direct and substantial particular or special damage beyond that suffered by the general public, there is no reason why they should not be entitled to maintain their suits without the consent of the Advocate General. They should in fact be deemed to have suffered special loss without specific proof thereof, in the facts and circumstances of these cases as has been held in Pahlad Maharaj vs. Gauri Dutt Marwari (18). 23. Even so, the second question posed above is also important, namely; whether the defendants could be said to have waived the bar of section 91(1) C.P.C.? 23. Even so, the second question posed above is also important, namely; whether the defendants could be said to have waived the bar of section 91(1) C.P.C.? The plaintiffs raised their suits on the plea that they had suffered special or particular damage by reason of the public nuisances caused by the obstructions on the public ways. They joined issue on the question whether they, as the owners of the premises abutting on the public ways, were prejudicially deprived of the use of the whole width of the ways for the full and free enjoyment of their properties. At the same time it has to be remembered that they did not mention in their plaints that they had obtained the consent of the Advocate General for instituting the suits. There was therefore nothing, ex facie, to show that the suits had been filed in accordance with the provisions of sub-sec. (1) of sec. 91. So when the defendants denied the plaintiffs claim to the special damage set up by them, and the defendants know that the plaintiffs private right of stepping from their own premises on to the public ways was not obstructed because of the intervening space of two to three feet they should have taken the plea, if they wanted to raise the bar of sub-sec. (1) of sec. 91 of the Code of Civil Procedure, that the suits were incompetent by virtue of that sub-section as the rights of the plaintiffs were in common with the public right for the removal of the alleged public nuisances. But it is admitted that no such plea was taken in any of the courts below. The point was not even raised during the arguments in those courts, so that there is justification for the submission that the bar was waived and it cannot be allowed to be set up for the first time in these second appeals. I am fortified in this view by the decisions in Thangavel Nadar vs. Sudalaimada Nadar(19)and Shridhar vs. Rajabhau(20). The plaintiffs would therefore be entitled to maintain their suits even if their claim is taken to be nothing more than a public right relating to a public nuisance within the meaning of sub-sec. (1) of sec. 91 of the Code of Civil Procedure. 24. The plaintiffs would therefore be entitled to maintain their suits even if their claim is taken to be nothing more than a public right relating to a public nuisance within the meaning of sub-sec. (1) of sec. 91 of the Code of Civil Procedure. 24. I next proceed to consider the question whether the suits could be said to be barred by limitation, for that is the other main point of controversy between the parties. 25 It has been argued on behalf on the defendants that the tehbazari stalls had been in existence for 20 to 30 years and that the plaintiffs were therefore "dispossessed" or "ousted" at that distance of time, from which the limitation for the suits started running, and that the suits were barred when they were instituted as they should have been raised within a period of six years from the date of the dispossession or ouster. It has further been argued that sec. 23 of the Limitation Act, 1908, would not apply as the injury to the plaintiffs was "complete" on the setting up of the stalls and that what continued thereafter was the effect of that injury. The learned counsel for the defendants have tried to support their argument by reference to The Municipal Commissioners for the city of Madras vs. Sarangapani Mudaliar (12), Ashutosh Sadukhan vs. Corporation of Calcutta (21), Choudhury Bibhuti Narayansingh vs. Maharaja Sir Guru Mahadev Asram Prasad Sahib Bahadur (13) Khair Mohd. Khan vs. Mst. Jannat (14), and Balakrishna Savalram Pujari Waghmare Vs. Shree Dhyaneshhwar Maharaj Sunsthan (16). On the other hand, it has been pointed out by the learned counsel for the plaintiffs that an obstruction to a public way or a highway is, by its very nature a continuing wrong independent of contract and that by virtue of section 23 of the Limitation Act, a fresh period of limitation begins to run at every moment of the time during which the wrong continues, This argument has been supported by reference to Mehar Chand vs. Sain Gaman (22), Dasrath Mahto vs. Narain Mahto (23). Mt. Masooma Bibi vs. Haji Mohammad Said Khan (24), Kuchibotha Kanakamma vs. Tedepalli Ranga Rao (25) and Biswanath Sinha Vs. Sudhir Kumar Banerji (11). 26. Now by virtue of sec. Mt. Masooma Bibi vs. Haji Mohammad Said Khan (24), Kuchibotha Kanakamma vs. Tedepalli Ranga Rao (25) and Biswanath Sinha Vs. Sudhir Kumar Banerji (11). 26. Now by virtue of sec. 3 of the Limitation Act the periods of limitation prescribed for suits are subject to the provisions contained in sections 4 to 25 of the Act. In the present cases, the dispute is whether section 23, which reads as follows, governs them all,— "23. In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract., a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues". 27. It does not require much argument to say that an obstruction to a public way or highway is a wrong independent of contract and an action lies for its removal.That, in fact,has been frankly conceded by the learned counsel for the defendants. I have already shown how the setting up of the tehbazari stalls amounts to such an obstruction. The question is whether it is of such a nature that a fresh period of limitation could be said to run at every moment of the time during which the wrong continues. In other words, the question is whether it creates a continuing source of injury so as to be a continuing wrong, for section 23 does not apply in the case of a continuing right, as has been laid down by their Lordships of the Supreme Court in Balakrishna Savalram Pujari Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan(16). 28. A wrong may arise from a breach of a positive or a negative duty. It is nobodys case that a positive duty was cast on the stall holders to maintain the. public ways. But the same cannot be said of the Municipal Board. In it the public ways were vested under the law [sec. 48(2) of the Rajasthan Town Municipalities Act, 1951 or sec. 92(2) of the Rajasthan Municipalities Act, 1959] with the direction that it shall maintain them as such and if the Municipal Board did not continue to discharge that duty and, on the other hand broke its obligation by allowing the public ways to be obstructed, its action would undoubtedly be wrongful. Nor can the stall holders be said to be immune from all responsibility. Nor can the stall holders be said to be immune from all responsibility. A negative duty was cast on them not to obstruct the public ways and if they broke that duty by setting up their stalls, there is no reason why their action should not be held to be equally wrongful. 29. But is the wrong in both cases a continuing wrong? That is the other important question to answer. A great deal of controversy has centred round it, but it seems to me that the apparent difficulty in finding the answer would be resolved if the question is re-stated some what as follows: Is the impugned act of obstruction a continuing source of injury de die in diem? So stated, the answer would clearly be in the affirmative, for it cannot be doubted that an obstruction to a public way amounts to a public nuisance where it prejudicially curtails the right to pass and repass on the entire way at all points whenever that right is asserted. The reason is that it is a wrong in respect of which it cannot be said that it was completed at any particular point of time, for it does not put to an end, once and for all, the right of the aggrieved party in whom there is always an indefeasible right to use the public road at all times. This is why there is a continuing wrong as long as the obstruction lasts and for the same reason a cause of action arises every moment during which the obstruction continues. 30. It is true that if a wrong is of such a nature that it could be said to be complete at a particular point of time, it would not be a continuing wrong for what would continue thereafter would be merely its effect. Thus in the case of "dispossession" or "ouster", it has been held that the wrong is complete on the date of the dispossession or the ouster and that what continues thereafter is only the effect of the wrong. But both "dispossession" and "ouster" betoken private ownership or possession and if, by the very nature of things., this is not possible in a given case, there can be no question of individual dispossession or ouster. But both "dispossession" and "ouster" betoken private ownership or possession and if, by the very nature of things., this is not possible in a given case, there can be no question of individual dispossession or ouster. The right to pass and repass over a public way or a highway is not a private right and no defence can be available on the ground that there was any dispossession or ouster in respect of such a right. A public way or a highway serves any and every person who wishes to pass and re-pass over it as and when he pleases and there can be no dispossession or ouster if it is obstructed. So when a right of way over a highway is not capable of possession by any individual in the sense of its defeasance by dispossession or ouster it would be a misconception to bring in any such concept in regard to it. The right inheres in every passer-by and he is entitled to assert it at any and every moment. Its denial by any kind of obstruction is therefore a wrong which continues de die in diem as long as the obstruction continues. 31. I would therefore unhesitatingly hold that the setting up of the teh-bazari stalls on the public ways in question was a continuing wrong independent of contract and gave rise to a fresh period of limitation at every moment of its continuance, by virtue of sec. 23 of the Limitation Act. Such a nuisance cannot be legalised by prescription. I am fortified in this view by the decisions in Dasrath Mahto vs. Narain Mahto(23), Mst. Masooma Bibi vs. Haji Mohammad Said Khan(24) and Kuchibotha-Kasakamma vs. Tedepali Ranga Rao(25). 32. The cases cited by the learned counsel for the defendants are clearly distinguishable. I have already referred to the case of the Municipal Commissioners for the City of Madras vs. Sarangapani Mudaliar(12) which was quite different. Moreover, it does not appear to have been approved in S. Sundaram Ayyar vs. The Municipal Council of Madura and the Secretary of State for India in Council (15). In Ashutosh Sadukhans case(21) a rowak or platform was built by the plaintiff on a portion of a street some 50 years ago. The Municipal Corporation brought a suit for the removal of the obstruction. It was held that sec. In Ashutosh Sadukhans case(21) a rowak or platform was built by the plaintiff on a portion of a street some 50 years ago. The Municipal Corporation brought a suit for the removal of the obstruction. It was held that sec. 23 of the Limitation Act was not applicable as the injury was complete on the creation of the rowak. That case was therefore also quite a different case. Choudhury Bibhuti Narayan Singh vs. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur(13) has been considered by me in an earlier part of this judgment and I need not refer to it any further. It may be pointed out however that Viswanatha Sastri J. in Kuchi Botha Kanakamma and another vs. Tadepalli Ranga Rao and others(25) observed that the view taken in Choudhury Bibhuti Narayan Singhs case that although the dispossession of the owner is a continuing wrong his right would be lost by lapse of 12 years from the date of the dispossession as a result of sec. 28 of the Limitation Act would be self contradictory. The reason is that if it is a continuing wrong, a cause of action would arise de die in diem to the plaintiff so long as the dispossession continues. I would say that I am in respectful agreement with this view of Viswanatha Sastri J. Khair Mohd. Khan and another vs. Mt. Jannat and others(14) has also been considered by me earlier and it can be of no real avail because it was not a case of a highway. The cases of Choudhury Bibhuti Narayan Singh and Khair Mohd. Khan have no doubt been noticed favourably by their Lordships of the Supreme Court in Balakrishna Savalram Pujari Waghmare and others vs. Shree Dhyaneshwar Maharaj Sansthan and others (16) but, as I have pointed out, that was for the purpose of upholding the contention that where the impugned act amounts to ouster, there is no scope for the application of sec. 23 of the Limitation Act. Balakrishna Savalrams case (16) was not a case of an obstruction to a public highway. It was a case relating to a right of worship of a shrine and the management of its affairs Some Guravs were dismissed by the trustees from the temple service and they filed their suit for that reason for a declaration that they were the owners of the temple. It was a case relating to a right of worship of a shrine and the management of its affairs Some Guravs were dismissed by the trustees from the temple service and they filed their suit for that reason for a declaration that they were the owners of the temple. It was in that connection that their Lordships considered the question as to when an injury could be said to be complete, and made the observation that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete on the date of the ouster so that there could be no scope for the application of sec. 23 of the Limitation Act in such a case. But the five suits with which I an concerned were, for reasons which I need not repeat, of an entirely different nature and the learned counsel for the defendants erred in arguing on the analogy of Balakrishna Savalrams case (16) that the concept of ouster should be applied to them as well. 33. It would follow therefore that in these five suits there was a continuing wrong independent of contract which gave rise to a cause of action de die in diem within the meaning of sec. 23 of the Limitation Act and they must therefore be held to be within limitation. 34. The last criticism which has been put before me is that injunction is a discretionary relief and that a mandatory injunction should not be granted for the removal of the obstructions because of the delay with which the suits were instituted. The argument is futile, not only because it was not raised in any of the courts below, but also because the obstructions are on a public way or highway and they cannot be legalised by prescription, or compensated by damages. Moreover, the licenses or leases (howsoever they may be construed) to the stall holders, it is admitted, were made from year to year and the plaintiffs could justifiably hope that better counsels would prevail and the Municipality or the State would discontinue them so that they would not be driven to the necessity of seeking their redress in a court of law. The delay in bringing the suits cannot therefore be said to disentitle the plaintiffs to the reliefs prayed for. 35. No other point has been argued. The delay in bringing the suits cannot therefore be said to disentitle the plaintiffs to the reliefs prayed for. 35. No other point has been argued. The result is that the plaintiffs are entitled to succeed in all the five suits. I would therefore allow appeals Nos. 341 and 359 of 1959, with costs, set aside the impugned judgment and decrees of the learned District Judge in regard to them and restore the trial courts decree dated April 23, 1958. I would dismiss the remaining seven appeals, an direct that the plaintiffs shall be entitled to their costs from the defendants.