MANGE Vs. LALJI HARNAM

JUDGEMENT

(1.) The surviving question for determination in this appeal is whether the representative suit of the plaintiff-respondents could have been maintained under the provisions of Order 1, Rule 8 of the Code of Civil Procedure? Both the trial Court and the learned District Judge having found in, favour of the plaintiffs, the defendants have come in appeal to this Court.

(2.) The suit was instituted by four persons against Mange and Dhan Pal, who are now the appellants before me, and the relief sought was for injunction to restrain the defendants from interfering with the right of the plaintiffs in respect of 15 kanals of land or in the alternative for possession and mesne profits of Rs. 200/-. At a very early stage, a prayer was made that the plaintiffs who belonged to Panna Dahliz in the village of Sunari Kalan may be allowed to sue the defendants in a representative capacity, the other biswedars of the village having identical interest in the suit land. It is unfortunate that though the plaintiffs mentioned the identity of interest of the persons of Panna Dahliz, the formal order of the Court in the handwriting of the Reader accorded permission to them to prosecute the suit on behalf of the biswedars of Sunari Kalan. In the application of 23rd of July, 1955, it was stated at the end that "for this reason the proprietors of Panna Dahliz of village Sunari Kalan pray that they may be permitted to prosecute the suit on behalf of all the biswedars of Panna Dahliz whom they may be allowed to represent". In the order which was passed on 1st of August, 1955, permission was given on behalf of the proprietors of village Sunari Kalan. It is not disputed that Panna Dahliz is a part of village Sunari Kalan.

(3.) The issues on merits having been decided a favour of the plaintiffs a decree was accordingly granted in their favour. In appeal before this Court, Mr. M. L. Sethi has not challenged the finding on issue No. 1 that the plaintiffs are owners of the suit land. He has. however, urged that proper permission under Order 1, Rule 8, Code of Civil Procedure not having been granted, the suit was liable to dismissal. Mr. Sethi has also contended that the defendants, who are the residents of village Sunari Kalan, have been adversely affected inasmuch as the property claimed by the plaintiffs consists of land which is meant for village school. It is worthy of note that on the application of the plaintiffs made on 23rd of July 1955, the proprietors of village Sunari Kalan were served with notices and nobody appeared to oppose the application. On behalf of Mr. Sethi, reliance has been placed on a Privy Council decision in Kumaravelu Chettiar v. T. P. Ramaswami Ayyar, AIR 1933 PC 183. At page 185 Lord Blanesburgh observed thus :