RAMDAHIN PANDE Vs. PARMESHWAR SINGH

JUDGEMENT

(1.) This appeal arises out of an action in which the plaintiffs were a limited class of villagers and claimed certain easements. The rights claimed were in connexion with plots Nos. 12, 13 and 14; as regards plots Nos. 12 and 13 there was a right of irrigation claimed, and as regards plot No. 14 the claim was for a right of passage, plot No. 14 being admittedly a rasta, and it is admitted by the defendant-appellant that he has got no right thereon. I have stated that the plaintiffs are a limited class and they sued on a right of action under Order 1, Rule 8. I propose to deal with the plaintiffs case so far as the rasta is concerned as it is contended by Mr. Bose appearing on behalf of the appellant that claiming, as he does not, right over the rasta, the only case that can be made by him is that so far as that plot is concerned the action was not maintainable in the absence of the consent of the Advocate-General under Section 91. I have had occasion to deal with this matter on two previous occasions at least, and my decisions are reported in 17 and 18, Patna Law Times, I propose, however, to deal with the matter by referring to an authority to which I referred on those two occasions but which was not cited at the Bar either on those occasions or this. It is the decision in (1868) 4 Ex 43 Harrop V/s. Hirst .

(2.) There the same question came up and Channel B, one of the learned Barons of Exchequer who delivered one of the judgments of the Court, pointed out that the principle, that an action cannot be maintained without proof of special damage, is a principle which does not apply in the case where the parties complaining belong to a particular class or section of the public. Under the general rule the consent of the Advocate-General is required in a suit with regard to a public right, but an action brought by a particular section is an exception to the general rule. It is perfectly clear in this case that as regards the rasta the action was by a particular class of persons and therefore maintainable without proof of special damage.

(3.) So far as plots Nos. 12 and 13 are concerned, I find myself in some difficulty. The plaintiffs failed to establish their rights of irrigation, and, had it been open to me, I do not think I should have any hesitation in dismissing their suit entirely with respect to plot Nos. 12 and 13. But the learned Judge in the Court below has given them a declaration and presumably an injunction as regards their right of watering cattle in both the plots. I have looked at the evidence for the purpose of understanding the case and the arguments put forward by both parties, and it seems to me perfectly clear that the right which the learned Judge has granted to the plaintiffs should be limited to plot No. 13, the nadi, and with that modification I am of opinion that the appeal should be dismissed; that is to say the plaintiffs have got the right of watering cattle from the nadi plot No. 13 and they have the right of way as a village pathway over plot No. 14.