BHAURAM Vs. LADU SINGH

JUDGEMENT

(1.) THIS is a civil second appeal on behalf of the defendants in a suit for injunction. The plaintiff-respondents and the defendant-appellants are residents of village Janaokhari (Tehsil Rajgarh ). To the east of this place there is a johar (tank) known as 'gogana' tank. The plaintiffs' case is that this tank is being used by the public. In the Settlement Record it is shown as Khasra No. 117 and in the plan filed with the plaint, it is denoted by the letter 'j'. The plaintiffs' case further is that Plaintiff No. 1 had his field - Khasra Nos. 145/50 adjacent to the village, and a village pathway passed from the village through his field and through the fields of other villagers and ended near the aforesaid tank. In the plan this pathway is shown A to B. The lower portion of this pathway is adjacent to the field of one of the defendants. The plaintiffs' case is that this pathway was being utilized by the villagers of the village Janaokhari for taking their cattle to the aforesaid tank and for bringing water to the village from the tank. On or about 8th of August 1956 the defendants raised a wall near the point 'c' in the plan and then obstructed the pathway. Thus, the plaintiff and the villagers of the aforesaid village could not traverse the whole pathway so as to reach the aforesaid tank at the Point 'b', but could only go from 'a' to 'c'. THIS amounted, according to the plaintiffs, to a public nuisance. The plaintiffs had filed an application in Tehsil Rajgarh to remove the obstruction but they were ordered to take proceedings in a court of law. The plaintiffs expressly mentioned in the plaint that their rights were specially infringed by the closure of the pathway in this manner and that the rights of the other villagers were also infringed. They applied to the Collector, Churu for granting permission to file a suit under sec. 91 (1) C. P. C. , which according to them, was granted on the 6th of August 1956. They, therefore, filed the present suit praying for a declaration that the aforesaid pathway was a village pathway for the plaintiffs' and the aforesaid village and the defendants had no right to close it. They also prayed that the defendants be restrained from creating any obstruction in that pathway and the obstruction put by them should be ordered to be removed. The defendants contested the suit and denied the allegations of the plaintiffs. According to them, there was another pathway passing through the field of Mauji Jat Asaram Chowdhry and Ladu Singh Rajput Plaintiff No. 1 and this was the pathway recorded in the revenue papers. It was also pleaded that the plaintiffs did not suffer any special damage and they had filed the suit with the consent of the Advocate General as required under sec. 91 C. P. C. and therefore the suit was liable to be dismissed. The trial court held that the plaintiffs have acquired a right of easement to the pathway A to B by prescription, while the lower appellate court has held that the pathway from A to B was a customary village pathway. Both the lower courts decided against the defendants on the plea that the suit was not maintainable, rejecting it on the ground that sec. 91 was not applicable as the pathway in dispute was not a public thoroughfare. There was an argument before it that the plaintiffs have themselves called it a public nuisance in their plaint and they cannot deny that it was a public thoroughfare but it controverted this argument by pointing out that the substance of the case of the plaintiffs was that it was a village pathway which word was used in the plaint in Paragraphs 9-10 and also in the paragraph relating to reliefs.

(2.) IN this second appeal, learned counsel for appellants has mainly argued that the suit was not maintainable as it was filed without the consent of the Advocate General as required by sec. 91 of the Civil Procedure Code.