VIRUPAXAPPA FAKIRAPPA Vs. SHERIF SAB MULLA MASUD SAB

JUDGEMENT

(1.) The suit No. 505 of 1905, out of which this second appeal has arisen, was brought by the present respondents as representatives of the Mahomedan community of Betigiri against the appellants as representatives of the Hindu community, for a declaration that the plaintiffs were entitled to pass in procession with music by the temple of Shri Malikarjuna in Uppin Betigiri, and for an injunction restraining the defendants from preventing or obstructing the plaintiffs in the enjoynment of the plaintiffs right.

(2.) The suit was brought in consequence of an order which had been passed by the District Magistrate of Dharwar on the 20 of November 1905, under Section 44 of the Bombay District Police Act. The learned District Judge has allowed the right claimed by the plaintiffs in this suit in a qualified manner, that is, he has held them entitled to pass in procession with music by the temple and restrained the defendants from making, any noise during certain hours. And it is urged before us in second appeal that the plaintiffs are entitled to the absolute right in the manner claimed in their plaint.

(3.) But the first objection to the suit, in my opinion, is that there is no cause of action disclosed in the plaint or pleadings or evidence. The plaintiffs claim a public right and their complaint is that they have been hindered in the exercise of that right by the defendants. It is an elementary principle of law that no individual or class of individuals can sue in respect of such a right unless the obstruction caused has resulted in special damage: Sathu valad Kadir Sausare V/s. Ibrahim Aga valad Mirza Ago 2 B. 457 and Kazi Su-jaudin V/s. Madhavdas 18 B. 693. The suit, therefore, ought to have been rejected by the Court below upon that ground.