RAMASESHAYYA Vs. RAMAYYA

JUDGEMENT

(1.) The second defendant is the appellant in this second Appeal. The suit was filed for a declaration that a tank comprised in R. S. 97/1 measuring 4 acres 14 cents in the village of Kotha Tummalapalli was common to all the villagers and for an injunction restraining defendants 2 to 4 from obstructing the plaintiff's user of the tank water for himself, his men and cattle and from diverting the tank water to their seed bed lands for the purpose of raising seedlings thereon. The suit was dismissed by the trial Court and substantially decreed by the appellate court. The sole plaintiff is the contesting respondent in this second appeal. On behalf of the appellant, it is urged that the suit should have been dismissed because (1) the tank is the private family property of defendants 2 and 3; (2) the suit has not been instituted with the sanction of the Advocate-General under Sec. 92 Civil Procedure Code; and (3) the suit has not been instituted in conformity with procedure prescribed by Order 1 Rule 8 Civil Procedure Code. On the first point, the lower Appellate Court has found that the tank in question is not the private property of the family of defendants 2 and 3 but is a public tank which the residents of the village and passers-by are entitled to use for drinking purposes and also for bathing and washing, if not objected by the villagers. The donor of the site of the tank examined as P. W. I stated that she gave the site for the digging of a tank for the use of all the villagers. D. W. 6, the adopted son of P. W. 1 who would now be entitled to the site, if it had not been gifted for a proper charitable purpose by the widow, also supports the plaintiff's case that the tank it " Dharma Cheruvu ". The family of defendants 2 and 3 was once the most prominent and affluent family in the village and Lingam Ramaseshayya the then manager of the family had the tank constructed in 1908 with the labour and money contributions of the villagers. From 1930 to 1944 the family of defendants 2 and 3 had left the village on account of financial embarrassments and during this period P. W. 8 the natural brother of the 1st defendant managed the tank and the 1st defendant paid the kist on R. S. 97/1. The case of defendants 2 and 3 that the site of the tank was purchased by Lingam Ramaseshayya from P. W. 1 is not proved by any documentary evidence. The witnesses examined on behalf of the plaintiff speak to the construction of the tank with the labour and funds of the villagers under the supervision or management of Lingam Ramaseshayya. I accept the finding of the lower appellate court that the tank belongs in common to all the villagers and is not the personal or private property of the defendants. The plaintiff, as a resident of the village, is therefore entitled to use the tank water for all legitimate purposes.

(2.) On the second point, I am of the opinion that the suit is not bad for want of sanction of the Advocate-General under Sec. 92 of the Civil Procedure Code. Sec. 92 of Civil Procedure Code does not apply unless the relief sought in the suit is one or other of the reliefs specified in the section. The words " further or other relief" in Sec. 92 (h) within which" the appellant sought to bring this suit, mean relief of the same nature as those contemplated in Sec. 92 (a) to (g). See Abdul Rahim v. Abu Mohamed Barkat Ali. Sec. 92 Civil Procedure Code postulates the existence of a trust of a public charitable nature and deals with the reliefs to which a party, as representing the public, may be entitled on that basis. A suit for a declaration that certain property belongs to a public charity can be brought by persons interested in the charity without the consent of the Advocate-General. Abdul Rahim v. Abu Mahomed Barka Ali Jamaludin v. Mujtaba Hussain Lokenath v. Abani Nath Subramanya Iyer v. Maya Kone Sec. 92 has no application where the suit is brought not to vindicate or establish the right of the public in respect of a puplic trust but to remedy the infringement of an individual right or vindicate a personal or private right of the plaintiff. Tirumalai Devasthanam v. Krishnayya, Jawahar v. Akbar Hussain Here the plaintiff, as one of the villagers entitled to use the common village tank, seeks to prevent an unlawful interference with his right by the defendants. The suit is therefore not bad for want of sanction under Sec. 92 of the Civil Procedure Code.

(3.) On the third point, I am of the opinion that if the suit is one for the vindication of the personal or private right of individuals or for preventing an infringement of such right and is substantially one in respect of a wrong done to the plaintiffs individually, the suit is not a representative one in the true sense of the term. To bring a ease within the provisions of Or. 1 Rule 8 Civil Procedure Code, all the members of a class should have a common interest in a common subject-matter and a common grievance and the relief sought should in its nature, be beneficial to all. The plaintiff's case is that he has been prevented from using the tank by defendants 2 to 5. To establish his right to use the tank he alleges and proves that the tank is common to all the villagers of whom he is one. A declaration that the tank is common to all the villagers is only incidental to the main relief of injunction. This is not a public tank in the sense that it has been dedicated to the public at large and the complaint is not about a public nuisance. It is a village tank constructed only for the benefit of the village community or residents of the village. The plaintiff, as a permanent resident of the village, has an interest in its proper maintenance and in the preventing of the diminution ol the water in the tank by its unlawful diversion by the defendants for their cultivation purposes. Such improper diversion of water is bound to cause damage or injury to the villagers who have to use the tank for drinking or bathing purposes during summer time. It is true that other villagers might also be similarly interested. Or. 1 Rule 8 C. P. C., is an enabling provision and does not compel any one to represent many if, by himself, he has a right of suit. The rule does not vest a right of suit in a person and if he, by him- self, has no right to sue, he cannot profess to sue on behalf of others by invoking the aid of Or. 1 Rule 8 C. P. C. At the same time, Or. 1 Rule 8 C. P. C. does not debar a member of the village community from maintaining a suit in his own right in respect of a wrong done to him though the act complained of may also be injurious to some other villagers.