SHRIDHAR Vs. RAJABHAU

JUDGEMENT

(1.) THE suit out of which this appeal arises was filed, as a representative suit, by certain inhabitants of a locality for the establishment of their right to use the land in suit for the enjoyment of certain civil rights as members of the village community which forms the public of that place, viz., a right of way and a right to hoist up a Jhenda or flag etc. in plot No. 112 of mouza Badgaon Gujar. The plaintiffs denied that the defendants were occupancy tenants of the land, but the Courts below have held that they are the occupancy tenants thereof. The position, therefore, is that the tenant-right vests in the defendants, but that, it is burdened with an obligation to let the public of the place use the plot for the exercise of their public rights as members of the village community to which the plaintiffs also belong.

(2.) IN second appeal it is contended that this representative suit should have been thrown out as not maintainable or not validly instituted, as, admittedly, no permission of the Court contemplated by Order. 1, Rule 8, Civil P.C., was obtained before its institution. No doubt such a view prevailed once in the Calcutta High Court; but I think that the view taken by the Allahabad, Bombay and Madras High Courts is sounder and preferable; even the Calcutta High Court itself subsequently thought fit to dissent from the view taken in earlier days in Oriental Bank Corporation v. Gobind Lall [1883] 9 Cal. 604, as the report of the case of Ahmed Ali v. Abdul Majid [1917] 44 Cal. 258 shows. As there is nothing in the provisions of Order 1, Rule 8, Civil P.C., which precludes the Court from granting the permission even after suit, it follows that the permission need not necessarily be obtained before the suit is filed. The cases reported in Fernandez v. Rodrigues [1897] 21 Bom. 784 (F.B.), Baldeo Bharthi v. Bir Gir [1900] 22 All. 269, Srinivasa Chariar v. Raghava Chariar [1900] 23 Mad. 28 and Chennu Menon v. Krishnan [1902] 25 Mad. 399, fully support this view. In this state of the law the objection fails and is disallowed.

(3.) EVEN assuming that the objection was one which could, have been entertained at that late stage, I am not prepared to dissent from the view taken by the learned Judge as regards the inapplicability of Section 91, Civil P.C., to the facts of this case as disclosed or found. The several cases cited by the Court of appeal below do substantially support the view taken by it, and I may say that the case of Kalicharan v. Ram Kumar [1913] 17 C.W.N. 73, in particular, justifies the view so taken. The distinction between a public high way and a road over which a section of the public e.g., the inhabitants of any particular locality have a right of way pointed out there is worthy of note and cannot be lost sight of.