CHANDRAWATI DEVI Vs. RAMESHWAR KAVIRAJ

JUDGEMENT

(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