HARISH CHANDRA SAHA Vs. PRAN NATH CHAKRAVERTY

JUDGEMENT

(1.) This is an appeal by a defendant against the judgment and decree of the Subordinate Judge of Tippera affirming in appeal those of the Munsif of Comilla. The suit was one for the declaration of a right of way and for a mandatory injunction on the present appellant to remove certain obstructions on the pathway in question. The suit was decided in the plaintiff's favour.

(2.) It is argued, in the first place, that the learned Subordinate Judge is wrong in his finding that the plaintiffs have suffered special damages. The plaint sets out that the way is a public way and plaintiff seeks relief for himself and his fellow villagers of Balerabad. The trial in the Court of first instance was on the footing that the right of way claimed was a public one and not one peculiar to the plaintiffs. The learned Munsif observes: "The point; for trial would, therefore, be whether the portion of the suit land covered by stations 66-69 to 18-25 is the public Gopat or not" and he decides that "it is no doubt a Gopat used by the men of the locality and they have the right to pass with plough...etc. " This finding was affirmed in appeal, the judgment of the learned Subordinate Judge being, that the plaintiffs have succeeded in proving the existence of the public way over the disputed land," On these findings, the question of whether the plaintiffs have or have not suffered the special damage does not arise. I may mention that it has been held by this Court in Harihar Das V/s. Chandra Kumar Guha 49 Ind. Cas. 79 : 23 C.W.N. 91, that a suit for a declaration that a pathway is a village pathway and for an injunction of the kind now Bought can proceed without proof of special damage,

(3.) The second point urged before me is that there was in fact no permission under Order 1, Rule 8. Now the finding of the Munsif, whose permission it was which was necessary under the rule, is "the plaintiffs have taken permission of the Court to sue for the public." That finding was not attacked in the Court of Appeal below. The learned Subordinate Judge sets out clearly what the points were which were urged before him and this is not one of them. It is plain, moreover, from his judgment that the correctness of this particular finding was never challenged and I must now take it as a fact that the Munsif did give the permission referred to under Order 1, Rule 8, It has been suggested in this connection that the suit should fail in the absence of the consent of the Advocate-General given under Section 92 of the Code of Civil Procedure. But the suit is, in my judgment, one to which Order I, Rule 8 is appropriate and the Court's permission having been obtained under that rule, recourse to the Advocate-General was unnecessary.