Patna High Court
Smt. Chandrawati Devi And Ors. vs Rameshwar Kaviraj And Ors. on 28 February, 1968
Equivalent citations: AIR1968PAT422, AIR 1968 PATNA 422, ILR 47 PAT 326
JUDGMENT Anwar Ahmad, J.
1. This appeal by defendants 4 and 5 arises out of a suit for declaration that, inasmuch as the Commissioners of Gaya Municipality, represented by original defendant no, 1 at fee time of the institution of the suit, had no right to settle or lease out any portion of the footpath, that Is to say, plots 11467 and 11469, which appertained to the Halliday Road, subsequently known as Shrl Krishna Prakash Road, the settlement of the disputed area out of the plots by Gaya Municipality in favour of defendants 2 to 5 under a registered deed dated the 3rd. January, 1955 was null, void and inoperative. There was also a prayer for restraining the said four defendants permanently from making any construction over the suit land and for removal of a pucca construction already made on a portion of the suit land.
2. Plaintiff No. 6 is the Gaya branch of the Central Bank of India, hereinafter to be referred to as the Bank. At the time of the institution of the suit, it was located in the northern portion of holding No. 94 of ward No. 2 situated by the side of the Halliday Road since 1941 as tenant under defendants 2 to 4 who are the landlords and owners of the said holding, Plaintiffs 1 to 5 are the employees of the Bank. Plaintiff No. 7 is a member of the public. The original plaintiffs instituted the suit on behalf of the public under Order I Rule 8 of the Code of Civil Procedure as also in their individual capacities on the ground that they suffered special damages. After the decision of the trial court, the Bank vacated holding No. 94 on the 1st October 1960 and shifted to another building situated at a distance of two furlongs on another road; and, during the pendency of the appeal in the Court of appeal below, plaintiff No. 7 filed a petition on the 22nd July, 1960 alleging that, even though he never felt any inconvenience on account of the settlement of the suit land with defendants 2 to 5, he had joined the other plaintiffs in the suit under the pressure of the manager of the Bank, and plaintiffs 1 to 6 filed a rejoinder alleging that this petition had been filed under the influence of the appellants. Original defendant No. 1, who supported these plaintiffs, was subsequently transposed as plaintiff no 8 under the orders of this Court
3. The suit was contested by defend ants 4 and 5. Their defence was that, inasmuch as plaintiff No. 6 was merely a monthly tenant, no cause of action could accrue in its favour or in favour of its employees, namely, plaintiffs 1 to 5, and that, inasmuch as plaintiff No. 7 had himself built a structure over a portion of the said footpath, he could have no grievance against any construction made or to be made by defendants on the suit land. They further said that plots 11467 and 11469 did not appertain to the Halliday Road and were not required for municipal purposes. They denied even the right of the members of the public to use the suit land as a passage. Lastly, Section 91 of the Code of Civil Procedure was pleaded as a bar to the suit
4. In order to appreciate the findings of the Courts below and the arguments, it is necessary to state here the admitted or established facts. In the municipal survey khesra (published in 1922). plot No. 11469 was recorded as "Sehan sarak" and plot No. 11467 as "butcherkhana" (slaughter house) plot no 11469 was on the north of holding No. 94 and, on the north of the Halliday Road proper. The butcherkhana was dismantled and, in the year 1939, the footpath on plot no 11467 was constructed. On the basis of the deed of settlement dated the 3rd January 1955, defendants 2 to 5 constructed a balcony supported on pillars on a portion of the footpath on plot No. 11467. These defendants did not dispute the right of the public to pass over this footpath and said that the balcony and the pillars did not interfere with that right of passage. They denied the right of the public to use any portion of plot No. 11469 as passage and asserted that this plot was not meant for any municipal purposes. The Courts below, however, found that this plot was also meant for the passage of the public, Further, these two plots on the south of the road and plots 11459 and 11462 on the north of the road, including the road itself, fell between two drains -- northern drain being plot No. 11316 and the southern drain being plot No. 11518. Houses of various persons were situated adjacent north and south of the two drains, respectively. The drain on the south is, however, covered by a pucka platform since before 1935. On almost the eastern extremity of plot No. 11469 is a pucka well. To the east of this plot after the well is a road running from north to south. Adjacent west of this road is the Mahabir Asthan (to the north of the well) in the eastern extremity of plot No. 11467. The Mahabir Asthan opens to the north on the Halliday Road and to the north on plot No. 11469 towards the well. The said two roads meet to the north-east of the Mahabir Asthan (plot No. 11466) West of the well is a new shop in plot No. 11469, which opens to the south on a sufficiently wide open space in a portion of this plot. West of this shop and throughout the length (from west to east) of the Bank building on holding No. 94 is open space of plot no 11469 and entrance to this space from the west is completely blocked by Durgi Halwai's house. Adiacent north of this house is the shop of the same Durgi Halwai which is adjacent west of the shop of Mathura Halwai which blocks any entrance from the west of plot No. 11467. West of the Mahabir Asthan is the long open space of plot No. 11467 and further west is the said shop of Mathura Halwai
5. The learned MunsiJ found as follows:-- (1) The Municipality had no right to settle or lease out any portion of plots 11467 and 11469 which appertained to the Halliday road; (2) it had no right to allow the other defendants to erect the balcony over a portion of plot No. 11467; (3) the settlement of these two plots with defendants 2 to 5 wab null and void and inoperative: (4) these defendants be permanently injected from making any kind of construction over these two plots; (5) the suit was not barred by limitation, and (6) defendants 2 to 5 he directed to remove the obstructions made on the suit lands. Accordingly he decreed the suit on contest with costs against defendants 4 and 5 and ex parte against defendants 2 and 3
6. Defendants 4 and 5 filed an appeal before the District Judge. During the pendent of that appeal, defendant No. 1 the Special Officer of Gaya Municipality, was made a co-plaintiff under the orders of this Court, as already stated. The findings arrived at by the learned Munsif have been affirmed by the learned second Additional Subordinate Judge, who heard the appeal, It may be stated that, during the pendency of the appeal in the Court below, an application was filed on the 1st October, 1960 by plaintiffs 1 to 6 that the Bank had shifted from holding No. 94 to another building at a distance of about two furlongs on another road. Two other petitions were filed on the 22nd July 1961. One was on behalf of the appellants informing the Court that "the Bank" had vacated holding No. 94 on the 1st October, 1960 and had, since then, no concern with the said house and, as such, the cause of action was no more available to it. The other petition was filed by plaintiff No. 7, Mathura Halwai, to the effect that he was persuaded and forced by the manager of the Bank to join as a plaintiff in the suit and that he did not feel any inconvenience on account of the settlement of the suit lands (with) defendants 2 to 5. This petition was controverted by a rejoinder filed on behalf of the Bank stating that plaintiff No. 7 had filed the petition under the influence of defendants 4 and 5. The learned Subordinate Judge has held that the state of things existing at the time of the institution of the suit should only be considered by a Court of appeal and not the events subsequent to the filing of the suit for the purpose of granting reliefs to the plaintiffs. So far as the petition of plaintiff No. 7 is concerned, the court of appeal below has not attached any importance to the same
7. The points for consideration in this appeal are (1) whether the Court should take into consideration the events subsequent to the institution of the suit, namelv. that the plaintiffs vacated the premises in question after the judgment of the trial court, and (2) If so, in the absence of any special damage to them, will the suit be maintainable, without the sanction of the Advocate General, as required by Section 91 of the Code of Civil Procedure?
8. It is well settled that, ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of institution; but this principle is not of universal application and the Court may, in appropriate cases, depart from this rule and take notice of events which have happened since the institution of the suit and pass the decree according to the circumstances as they stand at the time the decree is passed.
In Rai Charan v. Biswa Nath. AIR 1915 Cal 103, Sir Ashutosh Mookerjee, on a consideration of a large number of English decisions and the decisions of the Privy Council as well as the different High Courts in India, summarised the law as follows:--
"A suit is to be tried in all its stages on the cause of action as it existed at the date of its commencement. An exception to this rule, namely, that a Court may take notice of events which have happened since the institution of the suit and affora a relief to the parties on the basis of the altered conditions, is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of me Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.
The same view was again expressed by the learned judge in Nuri Mian v. Ambica Singh, AIR 1917 Cal 716. The law laid down on the subject was affirmed by their Loruships of the Federal Court of India in Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 FC 5. It was contended before their Lordships that an appellate court could only see whether or not the judgment of the High Court was in conformity with the law as it stood at the time that judgment was Riven and could not take into consideration the provisions of the Bihar Money-lenders Act, 1939, which, came into force after the judgment of the High Court was delivered. This argument was repelled by their Lordships Varada-chariar, J. (as he then was), with whom Gwyer, C. J. agreed, observed:
"The Court of appeal is entitled to take into account even facts and events which came into existence after the decree appealed against."
9. It has now to be seen whether the instant case falls within the exception to the general rule; in other words, whether, by taking notice of the subsequent events, it it possible to shorten the litigation and do complete justice between the parties. In my opinion, the answer to this question if in the affirmative. Plaintiffs 1 to 6 were only occupants of holding No. 94 and the special injury was available to them only so long as they were residing in that holding. Admittedly, they shifted from that holding during the pendency of the appeal in the Court below and therefore, the cause of action, which was available to them at the time of the institution of the suit, became non-existent at soon as they vacated the premises. The Court has to take into consideration this change for the purpose of doing complete justice between the parties. The cause of action on which the suit was brought by these plaintiffs was dependent upon their occupation of holding No. 94 and ceased to exist after these plaintiffs vacated the premises. This change of circumstances has, therefore, to be taken notice of by an appellate Court so that complete justice may be done between the parties. There is no finding that plaintiff No. 7 or the Municipality suffered any injury, except with reference to the customers of the Bank when it was occupying holding No. 94. The learned Additional Subordinate Judge was wrong in holding to the contrary.
10. It has next to be seen whether the decree passed by the Court of appeal below can be maintained even after the plaintiffs have vacated the premises in question. Admittedly, no sanction of the Advocate General was obtained by the plaintiffs for the institution of the suit, The trial court negatived the contention of the appellants that the suit could not proceed in absence of the sanction of the Advocate-General under Section 91 of the Code of Civil Procedure. The learned Munsif very rightly rejected this contention holding that, as plaintiff No. 8 was in occupation of holding No. 94 for more than eighteen years, it along with its employees, namely, plaintiffs 1 to 5, suffered special injury in respect of light and air in the said building. He also came to the conclusion that the employees of the Bank together with the other members of the public were feeling difficulty in coming to and going out of the Bank premises by the raising of the platform close to the passage south of the wall of the Bank building. The doctrine of special damage has been made applicable to this country also. The point is well settled and has been the subject matter of a large number of decisions. Reference may be made to Batiram Kolita v. Sibram Das, 25 Cal WN 95 : (AIR 1921 Cal 271), where a Division Bench of the Calcutta High Court held that an action for obstructing a public road was not maintainable, unless the plaintiff proved some injury or damage peculiar to himself and different from the damage that would be suffered by other people who used the road. Special damage, it was observed, did not mean serious damage, but meant a damage of a special nature that is, damage affecting the plaintiff individually or damage peculiar to himself, his trade or calling. The doctrine of special damage has been embodied by implication in Section 91 of the Code of Civil Procedure itself which reads as follows:
"(1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
It has also to be borne in mind that distinction has to be made between a public road in which the public in general has a right of way and a village road in which the inhabitants of a particular village or villages have this right. In the case of a public road in the full sense, proof of special damage, will be necessary, while, in the case of a village road, that is to say, a quasi-public road, even in the absence of proof of special damage, the suit can be decreed. It is not disputed that the Halliday Road in the present case is situated within the limits of Gaya Municipality and the public in general has got a right of way over the same and, thus, the road in question is a public road in the full sense of the term. The above distinction was made as early as 1888 by Wilson, J. in the Full Bench decision reported in (1888) ILR 15 Cal 460 (FB), Chum Lal v. Ram Kishan Sahu, His Lordship observed as follows:
"First, there are private rights in the strict sense of the term vested in particular individuals or the owners of particular tenements, and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as the freeman of a city, the tenants of a manor or the inhabitants of a parish or village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exist for the benefit of all the queen's subjects; and the source of these is ordinarily dedication."
It was pointed out in that decision that three classes of rights exist in India just as in England and, in the case of of quasi-public right, a member of the class entitled might, by taking the proper steps under Section 30 (now Order 1 Rule 8) of the Code of Civil Procedure, obtain permission to sue, on behalf of himself and the other members of the class, any one who disturbed or sought to disturb the right of way. This case was followed in Kali Cha-ran y. Ram Kumar. (1913) 17 Cal WN 73 and it was held that, where the suit relates not to a public highway but a village road, a suit is maintainable even in the absence or proof of special damage. Even if a suit has been brought under the provisions of Order I Rule 8 of the Code of Civil Procedure, as is the present suit, the same principles will apply. In Heyat Bakhsh v. Lachminia, (1914) 22 Ind Cas 916 (Cal), the suit was brought by eleven persons on behalf of the public for a declaration that a certain way was a public or common way for the egress and ingress of the people of a mahalla. It purported to be under Order 1 Rule 8 of the Code of Civil Procedure. Their Lordships held that the right claimed was of a quasi-public nature and, therefore, no special damage had to be proved. The material question is whether the public in general use the way as a pathway or only the inhabitants of the village and some of the other neighbouring villages use the same. If the way is used only by the inhabitants of two or three villages and not by others, the road is not a public road, vide Sham Soonder v. Monee Ram, (1876) 25 Suth W.R. 233, and Fatehyab Khan v. Muhammad Yusuf, (1887) TLR 9 All 434. So far as this Court is concerned, the point has been finally settled afresh by a Division Bench in the decision reported in AIR 1040 Pat 449, Choudhury Bibhuti Narayan Singh v. Mahadey Asram. The relevant passage of that decision runs as follows:
"In my view there is no real doubt as to what the law is, The doctrine of special damage is based on the principle of English Common law that there can be no private action for a public wrong. To give a right of suit the wrong must be in some way special or peculiar to the person who sues, and it is based on the sound rule that no man should be harassed by a multiplicity of suit in respect of a single wrong. English law has never departed from that principle, and it has been adopted by the Courts in India as a matter of equity and good conscience and must govern their procedure in the absence of any specific provision of law giving a special right of suit in derogation of the general principle."
11. Learned counsel for the respondents has not disputed the fact that the Halliday Road is a public road in the full sense of the term The plaint proceeds on the assumption that the Halliday Road is a public road. The Courts below have also based their decisions on this fact. Reliance was however, placed on Natabar Sasmal v. Krishna Chandra, AIR 1942 Cal 261, Dalgobinda Mahatha v. Khatu Mahatha, AIR 1948 Pa) 183 and Ramghulam Khatik v. Ramkhela-wan Ram, 18 Pat LT 459 :(AIR 1937 Pal 431); and it was submitted that these cases go to show that a suit can be decreed without proof of special damage and in the absence of a sanction by the Advocate-General. So far as Natabar Sasmal's case. AIR 1942 Cal 261 is concerned, it does not relate to the point at issue, and, so far as Dalgo-binda Mahatha's case. AIR 1948 Pat 183 and Ramghulam Khatik's case, AIR 1937 Pat 481 are concerned, they relate to quasi-public rights and not to public highways, Thus the decisions relied upon by learned counsel for the respondents are of no assistance to them.
12. The fact that the instant suit has been brought under the provisions of Order I Rule 8 of the Code of Civil Procedure does not change the position. Order I Rule 8 runs as follows:
"Where there are numerous persons having the same interest in one suit, or more of such persons may, with the permission of the court, sue or be sued or may defend, in such suit, on behalf of or for the benefit of all persons so interested.
But the court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement as the court in each case may direct.
Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the court to be made a party to such suit.
It was laid down in Adamson v. Arumugum, (1886) ILR 9 Mad 463 that Section 30 (now order I Rule 8) of the Code of Civil procedure was not intended to allow individuals to sue on behalf of the general public but to enable some of a class having special interests to represent the rest of the class. This view received implied recognition from Privy council in Kumaravelu Chettiar v. Ramaswami Ayyar, ILR 56 Mad 657 = (AIR 1933 PC 183). There, their Lordships observed:
"It has been deemed essential that in a representative action the class of persons on behalf of whom relief is sought should be clearly defined. . . . .The gist of the requirement is that as the judgment in such an action is binding on all the members of the class represented, it is of the essence that the range of the estoppel be defined somewhere on the face of the proceedings."
Order I Rule 8 is merely an enabling provision. It provides no new right of suit but merely a right of representation where a right of suit already exists. This right is a right of suit independent of the provisions of order I Rule 8. which do not give the right of suit, and no individual can sue on behalf of the public at large for a public wrong where he would otherwise have no right of suit. It does give a right to sue in a representative capacity upon an existing right of suit, and that is a right to represent any particular defined section of the public with whom the plaintiff has a special common interest, but not to represent the public generally as a whole. It does not contemplate the issue of notice to the whole world or that the whole world should be bound by the decision in a suit under its provisions. Order I Rule 8 is only applicable to quasi-public rights at distinct from the rights of the public in general. The suit in the present case relates to a public highway and its use is not limited to a particular class of the public and, as such, the mere fact that the plaintiffs framed their suit under the provisions of order I Rule 8 does not brings about any change in their position
13. Learned counsel for the appellants has also challenged the finding arrived at by the court of appeal below to the effect that the settlement of the lands by the Chairman of Gaya Municipality with defendants 2 to 5 is not valid in the eve of law. It is not disputed that Exhibit G-II was executed by the then chairman of the Municipality and the value of the property conveyed by the same was more than Rs 500. Sub-sections (2) and (3) of Section 64 of the Bihar and Orissa Municipal Act run as follows:
(2) Every contract made on behalf of the Commissioners in respect of any sum exceeding five hundred rupees, or which shall involve a value exceeding five hundred rupees, shall be sanctioned by the commissioners at a meeting and shall be in writ-inland signed by at least two of the Commissioners, one of whom shall be the Chairman or Vice-chairman, and shall be sealed with the common seal of the Commissioners.
(3) Unless so executed, such contract shall not be binding on the commissioners." In view of the above provisions, the deed of lease (Ext. G-II) should have been executed, at least, by one Municipal Commissioner besides the Chairman himself; but it was executed only by the then Chairman on behalf of the Municipality. This being the position, it has to be held, in agreement with the court of appeal below, that Exhibit G-II was not validly executed. The submission of learned counsel has, therefore, to be overruled.
14. The result, therefore, is that the appeal is allowed and the judgment and decree of the courts below are set aside. The parties , will bear their own costs throughout.
Ramratna Singh, J.
15. I agree, but I would like to give my own reasons. Mr. Brahmadeo Narayan attacked the judgment of the court of appeal below on several grounds. The first ground was that the court was not justified in refusing to take notice of events after the institution of the suit. The courts below found that by the "construction made or sought to be made on the suit land" the Bank and their employees (plaintiffs 1 to 6) suffered or were "in danger of suffering" special injury, inasmuch as the air and light coming to the Bank precincts would be obstructed and the right of passage of the employees of the Bank and its customers would be naturally affected. But admittedly sometime prior to the 22nd July, 1967, the Bank vacated holding No. 94 and shifted to another building situated on a different road at a distance of two furlongs from the suit land. There is no finding of special injury to plaintiff No. 7 (Mathura Sao), but he too filed a petition on the 22nd July, 1967, that he was never inconvenienced on account of the settlement of the suit land with the defendants and that he had joined the suit under pressure from the other plaintiffs. On the other hand, plaintiffs 1 to 6 filed a rejoinder to the effect that Mathura had filed the petition under the influence of the defendants. The court of appeal below disposed of Mathura's petition in these words:
"The said petition by him at such a late stage is itself a circumstance to show that now he has been prevailed upon by the appellants to file the said petition, and just to please them he hat filed the same." Mere filing of the petition on the 22nd July, 1967. cannot be a ground for rejecting it; and the court has not given any other reason, nor the counsel for the contesting respondents pointed out any other material in support of the said conclusion of the lower court. The court further held that it was unable to take notice of the aforesaid events, "having regard to the nature and scope of the suit". The court did not amplify this observation. The well settled legal position regarding taking notice of subsequent events is this. Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. The power of an appellate court to take notice of subsequent events was reiterated by the Supreme Court in Surinder Kumar v. Gian Chand, AIR 1957 SC 875 in the following passage:
''Moreover, in deciding the appeal we have to take the circumstances as they are at the time when the appeal is being decided and a judgment in rem having been passed in favour of the appellants it is necessary to take that additional fact into consideration. It was so held by the Federal Court in 1940 FCR 84 = AIR 1941 FC 5, where Gwyer C. J. quoted with approval the following observation of Chief Justice Hughes in Patterson v. State of Alabama. (1934) 294 U. S. 600 at p. 607:
"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law. which has supervened since the judgment was entered.' Varadachariar J., was of opinion that the hearing of an appeal is under the processual law of this country in the nature of a rehearing and, therefore, in moulding the relief to be granted in appeal an appellate Court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed."
A bench of this court quoted with approval in Bhola Ram y. Peari Devi, AIR 1962 Pat 168. the following passage from the judgment of Sir Asutosh Mookerjee in AIR 1915 Cal 103:
"A suit is to be tried in all its stages on the cause of action as it existed at the date of its commencement. An exception to this rule, namely, that a court may take notice of event? which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions, is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances become inappropriate or that it is necessary to base the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties."
16. The question now is whether the instant case falls within the exception to the general rule. The relief granted to the plaintiffs, on the basis of the finding that plaintiffs 1 to 6 were suffering or would suffer special injury on account of the construction of the balcony or the apprehended encroachment on either of the two foot-paths, became inappropriate after the Bank shifted from holding No. 94 to a building by, the side of another road at a distance of two fur-longs from the suit land. Hence, it is a fit case in which the court must take notice of the changed circumstance. It is true that plaintiffs 1 and 4 have their residential houses at a distance of 200 yards and 50 yards, respectively, from the suit land; but this nearness itself cannot justify the observation of the court of appeal below which reads thus: "It cannot be doubted that they will stand in need of using the suit lands for the passage and repassage more frequently; and that any obstruction or construction on the suit land is bound to affect and injure their said right specially." The situation of the suit land, which is a part of the southern footpath of the Halliday road the shops on the western side of the footpath, the pucca well and the Mahabir Asthan shows, on the other hand, that it would not be necessary for these plaintiffs to go over the suit land after the aforesaid changed circumstances. Even for the purpose of going to the Mahabir Asthan or the pucca well or to the shops it would not be necessary for any of the plaintiffs to go over the suit land. I am unable to agree with Mr. A.C. Ray, who appeared for the contesting respondents, that the passage to the Mahabir Asthan or the pucca well would be affected by the balcony or the proposed construction. The Mahabir temple (plot No. 11466) has only two entrances--one to the north opening on the Halliday Proper and the other to the south towards the well. The space in front of the entire southern wall of the temple is not obstructed by anything and there is open space on all the four sides of the well, the eastern portion of plot No. 11469 meeting the public road adjacent east; and, therefore, one can go even from this road through the open space into the temple through the southern entrance. The well itself is approachable from all sides through open space. The balcony is much too high to obstruct any passage. Of course, it rests on pillars constructed on some portion of plot No. 11467: but these pillars also do not obstruct any passage, as any entrance to this plot from the west is completely blocked by the shop of Mathura Halwai and the only place where one has to go to the east is the Mahabir temple. Entrance to plot No. 11469 is completely blocked from the west by the wall of Durgi Halwai's house. Thus, none of the original plaintiffs suffered any injury after 22-7-1967. The municipality, which was added as a co-plaintiff in the court of appeal below, has also not suffered any injury, as the balcony was constructed, under its bye-laws with the permission of the municipality; and no other construction on the suit land can be made by the defendants on account of the finding of the court below that the settlements of the suit land made by the municipality with the defendants were illegal.
17. It may be mentioned here that there were two settlements by the municipality; the first under a registered deed dated 22-10-1964 with defendants 1 and 2 and the second under a registered deed dated 3-1-1955 with defendants 2 to 5. After the municipality had been superseded, the Special Officer of the municipality instituted a title suit No. 60 of 1951 in the court of a Subordinate Judge challenging the settlement dated 22-10-1946 as illegal on the ground that the land was required for municipal purposes, that is to say, for passage. This suit was decreed by the trial court and the defendants preferred an appeal. During the pendency of the appeal, however, the period of supersession expired and the Commissioners of the municipality resolved to compromise the appeal and to allow the settles to make constructions on the suit land for which a fresh deed of lease would be executed. The appeal was accordingly compromised on the settles paying the cost of this litigation. In pursuance of this compromise, the second deed dated 3-1-1955 was executed in favour of defendants 2 to 5 by the Chairman, Shree Radha Mohan Prasad, alone. The court below has rightly held that both these settlements were hit by the provision contained in Section 62 of the Bihar and Orissa Municipal Act, 1922, in view of the finding that the suit land appertained to the Halliday Road, and that the second settlement was further hit by Section 64 of that Act.
18. The next contention of Mr. Narayan was that Section 91 of the Code of Civil Procedure is a bar to the suit, if the finding regarding special damage or injury be set aside. It is admitted in the pleadings as well as in evidence that Halliday Road is a public highway; and that is the finding of the courts below. Section 91 enacts:
"91. (1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writ-ins of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this Section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
According to Section 288 of the Indian Penal Code, a 'public nuisance' is an act "which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right". This definition applies to Civil Procedure Code by virtue of Section 3 (44) of the General Clauses Act. The right of the public to pass over a public highway is a public right Under the civil law, there are two remedies against a person who causes any public nuisance. He may be sued under Section 91 or he is liable to damages in a suit at the instance of a private individual who suffers special damage by reason of the nuisance, that is, damage beyond what is suffered by him in common with other persons affected by the nuisance and, where a number of persons have suffered special damage, a representative suit under Order 1, Rule 8 of the Code may be brought without the consent of the Advocate General
19. In 1869, Sir Barnes Peacock. C. J.. said in Baroda Prosad v. Gorachand. (1869) 12 Suth WE 160; "We think it is clear that this suit will not lie. The plaintiff sues defendants for obstructing a public road without showing that he has sustained any particular inconvenience in consequence of the obstruction. If he can maintain this suit, any member of the public can do so. and the defendant may be ruined by innumerable actions by persons who have not sustained a farthing of damage." This view was affirmed by a full bench of the Calcutta High Court in Raj Koomar Singh v. Sahabzada, (1377-78) ILR 3 Cal 20 (FB), which was followed by subsequent decisions of the same Court The same view was taken by all the other High Courts, including the Patna High Court in Md. Din v. Mt. Atirajo Kuer, ILR 10 Pat 568 = (AIR 1931 Pat 418) Section 91 (1) of the Code of Civil Procedure introduced a change in the procedure, requiring the consent of the Advocate General, so as to avoid multiplicity of litigation. So far as suits by private individuals are concerned, Section 91 (2) left the old law intact. The aforesaid rule of special damage in suits relating to public nuisance has its origin in the desire to avoid multiplicity of litigation and, so far as that ground is concerned, there is no difference between the conditions in England and those in India.
20. But Mr. A.C. Ray, who appears for the respondents relied on the decision of the Privy Council in Manzur Hassan v. Muhammad Zaman, AIR 1925 P. C. 36 = 52 Ind App. 61, which was a case relating to obstruction of the right to use highways for processions by certain sects of the Muhamadan community. That was an appeal from a decision of the Allahabad High Court. After speaking of a conflict of decisions in such cases, however, Madras and Calcutta High Courts as also a Bombay decision on one side and another Bombay decision on the other, their Lordships referred to the facts in Satku v. Ibrahim Aga, (1877-78) ILR 2 Bom 457 and pointed out that this Bombay judgment proceeded entirely on English cases which lay down the difference between proceedings by indictment and by civil action. It was observed: "In their Lordships' decision such a way of deciding the case was inadmissible. The distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India." This observation was made, because in the Bombay case it had been held that even in cases of processions by rival sects or communities it was necessary to prove special damage to sustain a suit by a body of persons who were obstructing in the ease a highway. The Privy Council said that this view was wrong and they approved the view in Baslingappa Parappa v. Dharmappa Basappa, (1910) ILR 34 Bom 571 and the Madras view. No question regarding the necessity of proving special damage was raised in any of the Madras cases cited before their Lordships. But it was considered in the Full Bench case of Velan Pakkiri v. Subbayan TLR 42 Mad 271 = (AIR 1919 Mad 674) (FB), wherein it was observed: "The obstruction in the English cases cited consisted of interference with the surface of the highway which interfered with the right of the public to pass and repass freely. The same principle would no doubt apply, if the defendants obstructed the public by assembling on the highway for their own purposes, as for the purpose of holding a market. That would also be a public nuisance and the rule as to special damage would apply. If, however, the defendants assembled to prevent the plaintiffs from exercising their lawful rights to pass along with the highway in a particular manner, that would appear not to be a case of public highway." In (1910) ILR 34 Bom 571, the plaintiffs had in a representative capacity sought for a declaration of their right of marching in procession along a public road to a temple and for an injunction restraining the defendants from interfering with this right. It was held by the Bombay High Court that the suit was not for removal of a public nuisance but for declaration of the right of an individual community to use the public road; and for this the court relied on a Madras decision.
21. But Mr. Ray relied on the above quoted passage from the decision of the Privy Council and submitted that even in the case of a public nuisance the English principle is not applicable in India. But in the said passage the expression "public nuisance" was not used; and the facts of the case show that the observation contained in this passage was meant for processions on a public! highway. In this connection, a passage from a later decision of the Privy Council Maharaja Mansingh v. Arjun Lall, 64 Ind Cas 354 = (AIR 1937 PC 299) is significant and it reads thus:
"They express no opinion upon the question whether a permanent structure with pillars resting" upon the highway, is or is not an obstruction, or is an inappreciable obstruction to the highway, or is such as could be complained of by the Advocate General or by others with his consent (Section 91 C. P. C.) on behalf of the public, or by a member of the public showing damage special to himself." The last clause of this observation shows that the question of special damage is relevant to a suit by a private individual relating to an obstruction on a public highway. There are, of course, a few decisions which interpret the earlier Privy Council decision to mean that proof of special damage is not necessary in cases in which a member of the public prays for removal of an obstruction to a public highway. The decision in Mandikinee Debee v. Basanlakumaree Debee, ILR 60 Cal 1003 = (AIR 1933 Cal 884), supporting this view is against the long accepted view of the Calcutta High Court. Even in this case, one of the Hon'ble Judges said that special damage had been proved. The view of the other Judge, Jack, J., who thought that special damage need not be proved has been dissented from in Surendra Kumar Basu v. District Board, Nadia, AIR 1942 Cal 360. The decision in ILR 60 Cal 1003 = (AIR 1953 Cal 884) was referred to in Municipal Committee v. Muhammad Ibrahim, ILR 16 Lah 517-(AIR 1935 Lah 196), but the Hon'ble Judge did not discuss the law. The decision in Munusami Chetti v. Kuppusami Chetti, ILR (1939) Mad 870= (AIR 1939 Mad 691) was by a Single Judge of the Madras High Court. The Patna view is also against the view taken in these decisions and the Calcutta High Court, in AIR 1942 Cal 360. accepted the view taken in ILR IS Pat 190= (AIR 1937 Pat 481) in which a learned Single Judge of this court did not accept the view taken by Jack, J. of the Calcutta High Court. The legal position has been dealt with exhaustively by a bench of this court in ILR 19 Pat 208 = (AIR 1940 Pat 449). Their Lordships examined (1) the exact nature, scope and application of Section 91 and Order 1, rate 8, Civil Procedure Code; (2) the application of the doctrine of special damage to India, and (3) the nature and scope of representative suits regarding obstructions to highways, village ways and pathways. Their Lordships discussed the relevant English cases, Privy Council decisions and a large number of decisions of the Indian High Courts. Their Lordships pointed out the distinction between public rights in the full sense, e. g., the right over a public highway, which exist for the benefit of all the members of the public and quasi-public rights e. g. a pathway used by the inhabitants of a village only or along with the inhabitants of some other villages or the locality. To put it another way, where the privilege to use a road is enjoyed only by one particular section of the community or by inhabitants of two or three villages, and not by others, the road is not a public road, such private ways generally have their origin in custom, but such ways can be converted into a public highway after user by the general public sufficient to raise the presumption of dedication. Their Lordships approved two decisions of Wort, J., of the Patna High Court to the effect that "While it is necessary to prove special damage in cases where the plaintiff sues merely as a member of the public in respect of a public right in the full sense, it is not necessary to prove it in the case of a quasi-public rights, where the plaintiff sues as a member of the limited class whose special rights have been infringed". Their Lordships then referred to a bench decision of this Court in Pahlad Maharaj v. Gouri Dutt, 18 Pat LT 737 = (AIR 1937 Pat 620) and pointed out that the placitum of the report was misleading. It was a case in which the plaintiff and, the defendant lived on opposite sides of a narrow road of a village and the defendant had built on the thoroughfare a structure containing a platform and a privy constituting a nuisance not only to persons passing through the thoroughfare but particularly to the plaintiff who lived on the opposite aide of the road The learned Chief Justice who delivered judgment in that case said: "The plaintiff was in a peculiar positron to suffer loss and must be deemed to have suffered the loss from the inconvenience and nuisance committed by the defendant." What this decision, therefore, laid down was that in some cases the necessary special damage can be inferred from the circumstances: but it offers no support for the proposition that an individual member of the public, suing either by himself or as representing the public, generally, can have a right of suit without proof of special damage. In that ease, the learned Chief Justice also observed:
"It is perfectly true that in the case of public thoroughfare generally & mere stranger to a district cannot on the ground that he is a member of the general public bring a suit for the removal of an obstruction unless he can prove some particular damage, if, for example, smoke is, emitted in undue quantity in the streets of Calcutta, it will hardly lie in the power of an inhabitant of Patna to say that whereas he is a member of the public and pays occasional visits to Calcutta he is interested as of right to bring a suit for the removal of the nuisance."
Mr. Ray, therefore, contended that every person of Gaya town, irrespective of the fact whether he lives by the side of or near the Ralliday Road, would be deemed to suffer particular inconvenience (justifying the inference of special damage) on account of any encroachment on the suit land in the instant case. But the facts of the case of Pahlad Maharaj do not justify this inference from the passage quoted above. His Lordship the Chief Justice gave an extreme example in this passage. What his Lordship meant wats that a mere stranger to a particular locality who paid occasional visits to places in another locality through a public thoroughfare cannot bring a suit for the removal of an encroachment, on the ground that he is a member of the general public, unless he can prove some particular damage. Unless, therefore, in the instant case, the plaintiffs prove that they had frequently to pass through the footpaths, of which the suit land forms a part, they cannot succeed without proving special damage on account of the alleged obstruction.
22. In the case of Choudhury Bibhuti Narayan Singh, ILR 19 Pat 208 = (AIR 1940 Pat 449). their Lordships then discussed the English cases on the point and said that the doctrine of special damage has two very definite limitations. First, it applies only to cases regarding public rights in the full sense, and in support of this limitation quoted the following passage from Harrop v. Hirst, (1868") 4 Ex. 43:
"It is conceded that where an indictment may be maintained there is no remedy by action without proof of individual damage. But the same principle does not apply where the injury complained of is not one affecting the public generally, but only a particular class or section of persons."
Secondly, an invasion of special rights will provide a cause of action without special proof of damage, for in such a case the law will presume damage; and for this reliance was placed on a passage from the case of McCartney, 1904 AC 301 Their Lordships concluded as follows:
"There is no reason why the doctrine of special damage, subject to these limitations, should not apply also in India, and it is clear from the wording of Section 91, Code of Civil Procedure, that the legislature itself contemplates that it should. For there would be no point otherwise in providing a special right of suit in the absence of special damage, and the use of these words constitutes an implied recognition of the existence of the rule. It is clear also from the general trend oi the rulings, which I have examined, that the doctrine has been applied subject to the two limitations I have mentioned. It is by reason of these limitations that it has been held not to apply to cases of quasi-public rights, such as village roads, and where the plaintiff sues either for himself as a member of the limited class of persons having special rights in common, or on behalf of that limited class in a representative suit under Order I, Rule 8. Code of Civil Procedure, for infringement of those rights. So much for the doctrine of special damage in its application to India."
23. With regard to Order 1, Rule 8 of the Code, their Lordships said that it is merely an enabling provision and it provides no new right of suit, but merely a right of representation where a right of suit already exists, and that right of suit is provided by the invasion of the special rights of the limited class represented. On the other hand, Section 91 gives a new right of suit, namely, a right of suit for the removal of a public nuisance, even where there is no special damage and no invasion of any special right. The definition of 'public nuisance' in Section 268 of the Penal Code is wide enough to cover cases of obstruction to village pathways; and, therefore, a special suit under Section 91 can be instituted with the consent of the Advocate General for obstruction of a village pathway even in the absence of any special damage. In view of Sub-section (2), however, Section 91 does not take away any independent right of suit which may exist, nor does it override the provision of Order 1, Rule 8 and take away any right of suit under that rule even in a case of public nuisance. This rule gives a right to sue in a representative capacity upon an existing right of suit -- a right to represent any particular defined section of the public with whom the plaintiff has a special common interest, but not to represent the public generally as a whole. Their Lordships concluded thus:
"It follows from all this that in the case of suits such as those with which we are concerned in these appeals, relating to obstructions to village ways, if the plaintiff does not utilize the special provision of Section 91, or prove special damage, but purports to sue under Order 1, Rule 8, be must plead and show (1) that he sues not on behalf of the public generally, but on behalf of a limited and clearly defined class with which he has a common interest and a common right of suit, (2) he must plead and show that the pathway in question is not a public highway in the full sense in which all members of the public who happen to go to the place have equal interest; he must show that it is a way or path of the quasi-public type recognized long ago by Wilson, J. in (1888) ILR 15 Cal 460 (FB). in which the class he represents has got special rights as distinct from those of the public generally."
24. Mr. Ray relied also on a bench decision in Dasrath Mahto v. Narain Mahto, 22 Pat LT 111 = (AIR 1941 Pat 249) in support of his contention that special damage need not be proved in the instant case, but this decision is distinguishable, as the facts are similar to those in the case of Pahlad Maharaj. The decision of Raghava Rao, J., in S.K. Murgesa Mudaly v. Baruda Arunagiri Mudaly, AIR 1951 Mad 498 also relates to a village street. Of the two decisions referred to therein, Subbamma v. Narayan-murthy, AIR 1949 Mad 634 is based on the decision of Wadsworth, J., in AIR 1939 Mad 691, which has been discussed in paragraph 6 of this judgment and the other decisions 52 Ind App 61 = ILR 47 All 151 = (AIR 1925 PC 36) was in respect of processions on a public highway None of these decisions is, in my opinion applicable to the instant case.
25. Mr. Brahmadeo Narayan also attacked the finding of the court below that the lease in question was bad on account of certain provisions of the Bihar and Orissa Municipal Act, 1922, mainly on the ground that it is a matter between the municipality and the defendant lessees; but now that the municipality has been transposed by this court to the category of the plaintiffs, it is necessary to decide the same. Of course, Section 62 of the Act empowers the Municipal Committee al a meeting, to lease any land, but this power is limited in the same section by the provision that such lease can be made subject to the condition that the land is no1 required for the purpose of the Act. As it has been held by the courts below that, the suit plots appertain to the Halliday Road and they are required for the purposes of the public using them as footpath, the lease was invalid. It was also bad on account of non-compliance with the provision of Section 64 of the Act. which requires that every contract involving a sum of more than five hundred rupees shall be executed by at least two of the Commissioners, of whom one shall be the Chairman or Vice-Chairman. But the lease in question was executed by only the Chairman. Of course, one or two other Commissioners signed the lease, but they did so as witnesses--not as executants. Further, the facts of the case and the provision of Section 62 of the said Act do not justify the application of Section 53A of the Transfer of Property Act
26. In view of the preceding findings, it is not necessary to decide whether the court of appeal below was justified or not in coming to the conclusion that defendant no 5 got the resolution for the lease passed by the Commissioners on the ground that he was a friend of, and belonged to the party of the Chairman. It is also not necessary to record any finding on the argument of Mr. Narayan that, even if there had been any encroachment by defendants 2 to 5, a decree for damages would meet the ends of justice, rather than an injunction for removal of the encroachment.
27. The last argument of Mr. Narayan was that the court below had wrongly relied on certain statements and certain documents. It appears that the municipality had intended to settle some land out of plot no, 11469 lying in front of the house of one Raghu-nandan Dubey and others with defendant No. 2. Two title suits were, therefore, instituted in 1940 by Dubey and others for restraining the municipality from settling this land. The suits were decreed on the ground that the land proposed to be settled was required for municipal purposes (See paragraph 12 of the judgment of the court of appeal below). In 1946, present defendants 4 and 5 had instituted a title suit against present defendants 2 and 3 under a registered deed dated 22-10-46. In that suit, defendants 4 and 5 had stated in the plaint that the suit land was a roadside land and was used as footpath appertaining to Halliday Road; and, as has been rightly pointed out in paragraph 15 of the judgment of the lower appellate court, an opportunity was given to these defendants to explain the statement, but they failed to do so. The courts below were justified in taking into consideration this statement as also the judgment in the suits of 1940, both of which relate to portions of the suit plots. In paragraph 13 of the judgment, the lower appellate court has spoken of a litigation in respect of a portion of plot No. 11459, being the northern footpath of Halliday Road; but it has not used the judgment of the litigation in support of its finding relating to the suit land. Hence, there was nothing wrong on the part of the courts below in referring to those matters. Mr. Narayan did not make any comment regarding the use of any other document or litigation by the courts below.
28. In view of the foregoing discussions, it must be held that Order 1, Rule 8 of the Code of Civil Procedure is not applicable to the instant case, as it does not relate to a pathway of the quasi-public type and that, inasmuch as Halliday Road is admittedly a public highway in the full sense, Section 91(1) of the Code is a bar to the present suit on account of the failure on the part of the plaintiffs to prove special damage, even though the settlement of the suit land with the defendants was void and they did not acquire any title to the suit land under the deed of lease dated 3-1-55.
29. In the result, the appeal is allowed and the suit is dismissed; but the parties will bear their own costs throughout,