KEDARNATH SAH Vs. NARENDRA PRASAD SHAH

JUDGEMENT

(1.) This is an appeal by the defendant second party against a judgment of reversal. The plaintiffs-respondents first party, five in number, instituted a suit purporting to sue in a representative capacity under the provisions of Order 1, Rule 8 of the Code of Civil Procedure (hereinafter referred to as the Code') being members of the public of the Bhagalpur Municipality, as well as in their individual capacities. The main relief prayed for in the suit was a declaration to the effect that a sale deed dated the 23rd of March, 1961 executed by the Special Officer of the Bhagalpur Municipality which was at the relevant time superseded by the State Government under the provisions of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as 'the Act') was illegal, invalid and conferred no title on the appellants. The Bhagalpur Municipality was impleaded as defendant No. 1 and the Special Officer as defendant No. 2, they being respondents Nos. 6 and 7 to this appeal. The further prayer was for a permanent injunction restraining the appellants from making any structure and also for a mandatory injunction directing the appellants to remove the existing structure from the municipal land in question, namely, 634 sq. feet equivalent to 11 dhurs 10 dhurkis in a lane commonly known as Anand Ausdhalaya Bye-Lane in Mohalla Khalifabagh, in Ward No. 4 of the Bhagalpur Municipality in the town of Bhagalpur. The averments made in paragraphs 4 and 5 of the plaint are to the effect that the aforesaid Anand Ausdhalava Bye-Lane emanates from the main Anand Ausdhalaya Road and runs towards north in a circuitous way and terminates near the house of plaintiff No. 1. On either side of the Bye-lane there are houses abutting it without any space between those houses and the Bye-Lane. A small piece of open land which has been a part and parcel of the said Bye-Lane has been in use of the residents and house owners including the plaintiffs and the public in general and the said piece of open land is the only breathing space in a very densely populated area, where the incoming and outgoing vehicles can cross each other in the Bye-lane or the vehicles can stop for loading or unloading and other purposes for the use of the plaintiffs and others. The service of latrines and drains of the houses specially of plaintiffs Nos. 3 and 4 and others is being effected through the said open space and the rubbish and refuge and garbage of all the houses abutting the Bye-Lane are also collected on the aforesaid open space for clearance and carriage by the sanitation department of the Municipality. The said open space has been in use as a part of the road for the purposes of the public and also of the plaintiffs and other inhabitants of the aforesaid Bye-Lane since time immemorial and is still required for the aforesaid purposes. The further case of the plaintiffs-respondents first party was that the appellants-defendants second party formerly lived as a tenant in a house of plaintiff No. 3, which was later on purchased by one Radha Devi, who is not a party to the present proceedings. The aforesaid defendants had encroached upon a small portion of the said open space of the Bye-lane by erecting a tinshed and a 'bhathi' (oven). Subsequently Radha Devi aforesaid evicted the appellants from the house and the Municipality took action against them under the provisions of Sections 196 and 198 of the Act for removal of the said encroachment from the municipal land, The appellants then bringing the municipal employees in their collusion prevailed upon the Special Officer of the Municipality to sell to them a Portion of the open land described above for a consideration of Rs. 1,725/-. The respondents first party-plaintiffs came to know of this clandestine transaction only on the 9th of May, 1961 when the appellants were making preparations for erecting a thatched house on the said open land of the Municipality. The respondents first party along with others protested with the result that the appellants could not get possession over the land. The land in dispute, it is asserted, is still needed by the Municipality for its use, and the public of the municipal area in general and the respondents first party in particular have, been greatly prejudiced and their valuable rights infringed by the illegal act of the Special Officer in purporting to sell the municipal land in favour of the appellants without any authority in law to do so.

(2.) The defence of the Municipality, the Special Officer as well as the appellants was that the land in question was a cul de sac and of no use to the Municipality and, therefore, the Special Officer sold it in favour of the appellants. The additional defence of the appellants was that they were already in possession of the land in question for more than thirty years before the transaction of sale was entered into and that on account of such possession the land was sold to them.

(3.) It may be mentioned at the outset that the notices as contemplated by Order 1. Rule 8 of the Code were not issued and the trial proceeded, and both the courts below have decided the case on the footing of the suit having been filed by the plaintiffs-respondents first party in their own right. Indeed, it has not been disputed at the Bar that the provisions of Order 1, Rule 8 of the Code embody merely an enabling rule. This rule does not debar a member of a community from maintaining a suit in his own right even though the act complained of may also be injurious to the whole community. If, therefore, in any case of the present nature, the plaintiffs show that they have their own rights which have been infringed, then irrespective of the fact that they are members of the public and suffer along with them, the injury to themselves would be sufficient damage to entitle them to bring a suit in their own right.