Harries, C.J.This is a Letters Patent appeal from a decision of Wort J., reversing the decisions of the lower Courts and decreeing the plaintiffs suit for removal of a certain obstruction erected by the defendants in a roadway. The roadway in question is referred to as plot No. 610. This roadway passed the houses of plaintiffs 1 to 7 and passed the house of the defendants. The latter proceeded to make certain constructions on their land and encroached upon this thoroughfare. A commissioner was appointed, and it is now clear that on the western side of the defendants house there had been an encroachment on this thoroughfare varying from 28 links on the northern side to 15 links on the southern side. The thorough, fare, as it now is, is said to be only 12 links wide-in other words, the defendants have encroached on, roughly, two-thirds of the highway on the north of their property and roughly half on the southern side of their property. The present suit was brought by plaintiffs 1 to 7 who were inhabitants of the vicinity of this thoroughfare and by plaintiffs 8 to 11 who were residents of the village. According to the plaintiffs, they had suffered inconvenience as the result of this encroachment and they prayed for an order for the removal of the same and for restoration of the thoroughfare to its original state.

2. The defendants pleaded that they had made no encroachment, but that plea has been found to be false. As I have stated, there was a very serious encroachment in this case. The defendant further pleaded that the suit not having been framed u/s 91 or Order l, Rule 8, Civil P.C., it was not maintainable. Further, it was alleged that as the plaintiffs had suffered no inconvenience whatsoever they had no cause of action. The lower appellate Court affirmed the decision of the learned Munsif and held that there had been an encroachment but that the encroachment had caused no inconvenience whatsoever.

3. It further held that as the suit was not brought under the provisions of Section 91 or Order 1, Rule 8 it was bound to fail as no special damage had been proved. Accordingly, the learned Additional District Judge dismissed the claim in its entirety. In second appeal Wort J., held that it was not necessary to prove a special damage and that the suit was maintainable by persons living in the immediate vicinity, and after considering the matter fully he reversed the decision of the learned Additional District Judge and decreed the suit. In this appeal it has been strenuously contended that the decision of Wort J., cannot be sustained. It is urged that it is essential where the suit is not framed u/s 91 or Order 1, Rule 8, Civil P.C., to prove special damage, that is some pecuniary or particular loss over and above what has been suffered by the public generally.

4. In my judgment, this case is completely covered by a Bench decision of this Court, namely Pahlad Maharaj and Others Vs. Gauri Dutt Marwari and Another, . The headnote of that case is as follows:

A person in the immediate neighbourhood and entitled to use a local public thoroughfare has a special cause of action and that irrespective of whether he has proved special damage or not. The principle is that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss.

5. In that case the defendant had obstructed the highway and erected a privy on or near the obstruction. The plaintiffs were persons living in the vicinity, and they did not establish that they had suffered any greater inconvenience than any other member of the public passing that way. Nevertheless it was held that as they lived in the immediate vicinity and (hat there had been an interference with the enjoyment of the highway they were entitled to the relief claimed, namely the removal of the obstruction.

6. It has been urged that the case now before us is not a case of a public thoroughfare and a distinction is drawn between the present case and the case in Pahlad Maharaj and Others Vs. Gauri Dutt Marwari and Another, . However, it is clear from the judgments in the present case that the argument until today has proceeded upon the basis that the lane in question is a public thoroughfare and not what has been described as a quasi public roadway.

7. It has further been argued that in the case in Pahlad Maharaj and Others Vs. Gauri Dutt Marwari and Another, special damage had in fact been proved; but it is clear from the judgment of the learned Chief Justice that such was not the case. At p. 738 he observed:

But as has been recognized in principle and confirmed by the Privy Council, a person in the immediate neighbourhood and entitled to use a local public thoroughfare has a special cause of action and that irrespective of whether he has proved special damage or not. The real principle is as I have said that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss.

8. The position in the present case is precisely the same as the position considered by the learned Chief Justice in the earlier case. There has been a grave infringement in the present case, and the persons residing in the vicinity have been compelled to use a roadway only a third of the width it was before the obstruction. It may be, as the lower Courts have found, that they have not suffered any particular loss, but it is idle to say that their rights have not been seriously infringed. You cannot cut down a roadway by two-thirds without seriously affecting the interest of the person using such roadway. It is said that as parts of this road are not wide enough to permit the passage of a bullock cart then no real damage would be done by reducing wider portions to the width of the narrower portions. It would indeed be a very dangerous thing to hold that persons are entitled to encroach upon roadways in every case where the encroachment still leaves a width equal to the narrowest portion of the roadway.

9. In my judgment there was such damage in this case as is contemplated by law, and following the case in Pahlad Maharaj and Others Vs. Gauri Dutt Marwari and Another, . I am bound to hold that plaintiffs 1 to 7 who lived in this vicinity and used this roadway constantly had a cause of action. They were entitled to seek the removal of this obstruction, and their claim was, in my view, rightly decreed by the learned single Judge. It was urged lastly that damages would be sufficient to meet the justice of the case. As long as this obstruction remains, there is a continuing wrong, and in my judgment damages are not an appropriate remedy to meet circumstances of this kind. The learned single Judge was right in my judgment in ordering the removal of this obstruction.

10. In the result, therefore, I would dismiss this appeal with costs.

Fazl Ali J.

I entirely agree.