DALGOBINDA MAHATHA Vs. KHATU MAHATHA

JUDGEMENT

(1.) This second appeal is by the defendants. Plaintiffs, Khetu Mahatha and others brought Title Suit No. 89 of 1942 in the Court of the Munsif of Raghunathpur alleging that the defendants had converted portions of a village cart track into paddy fields. The suit was filed in accordance With the provisions of Order 1, Rule 8, Civil P.C. of the six plaintiffs, 1 to 3 are residents of village Damudih. Plaintiff 4 belongs to another village, but it is said that he has cultivation in village Damudih. The remaining two plaintiffs are the residents of neighbeuring villages. The alleged cart track is said to connect two District Beard Roads. Admittedly a portion of the cart track passing through Survey Plot No. 1480 has been shown in the survey map. According to the plaintiffs the cart track in question has been in existence for over 100 years, and it has been used by the public of the locality. The defendants, put in their appearance and contested the suit. According to them the suit was not maintainable in the form in which it was presented by the plaintiffs. The learned Munsif took up the question of maintainability of the suit raised in issue 2, and gave his decision that the suit is not maintainable in view of the provisions of Section 91(1), Civil P.C. He accordingly dismissed the suit with costs. The plaintiffs not satisfied with this decision preferred an appeal which was heard by the learned Subordinate Judge of Purulis. The learned Subordinate Judge took the view that the suit is maintainable, and he allowed the appeal, set aside the finding of the learned Munsif and remanded the suit for disposal according to law. As for costs of the appeal, the learned Subordinate Judge directed that the same will abide the final result of the suit in the trial Court. Hence this second appeal by the defendants.

(2.) On behalf of the defendants appellants it has been contended that the decision of the learned Subordinate Judge is wrong. It is said that even according to the admission of the plaintiffs-respondents in the plaint the path in question is a public path in which the general public is interested. The learned advocate for the appellants, had referred to a decision reported in Bibhuti Narayan Singh V/s. Sir Guru Mahadev Asram Prasad A.I.R. 1940 Pat. 449. One interesting feature of the present care is that both the learned Courts below have cited this ruling in support of their respective findings. This ruling lays down that where a suit is brought under Order 1, Rule 8, Civil P.C., the plaintiff must plead and show that he sues not on behalf of the public generally, but on behalf of a limited and clearly defined class with which he has a common interest and a common right of suit. Their Lordships further observe that in such a case the plaintiff must plead and show that the pathway in question is not a public highway in the full sense in which all members of the public who happen to go to the place have equal interest. The plaintiff has further to show that it is a way or path of the quasi public type in which the class lie represents has got special rights as distinct from these of the public generally. According to the learned Munsif the requirements laid down in Bibhuti Narayan Singh V/s. Sir Guru Mahadev Asram Prasad A.I.R. 1940 Pat. 449 have not been fulfilled in the present case. The learned Subordinate Judge, on the other hand, has held that the conditions are satisfied. The learned Subordinate Judge is also of opinion that it is a case in which it can be said that the plaintiffs according to the allegations in the plaint have suffered special damage. Admittedly where special damage is claimed, in such a case the suit need not come either under Section 91, Civil P.C., or under Order 1, Rule 8, Civil P.C.

(3.) I have carefully perused the plaint. It is true here and there are expressions which at first sight will lead one to think that the path is a public one over which the general public have got full rights, but in order to appreciate the true character of the suit, one should read the plaint as a whole. The path in question, as described in the plaint, can by no means be called a public highway. More than at one place in the plaint the path has been described as a cart track.