Tudball and Sulaiman, JJ.
1. This is a defendant's appeal. The plaintiffs respondents are the representatives of the Shia community in the town of Aurangabad. The four defendants appellants are the representatives of the Sunni community in the same town.
2. In the years 1916 and 1917 trouble arose between the two communities in respect to the Muharram festival and the passing of the Shia procession along the road behind the Jama Masjid of the town. This road is a narrow passage about 12 feet wide. The Sunnis, it appears, objected to the Shias stopping behind the mosque, forming themselves into a circle and going through the Matam, chiefly on the ground that it interfered with the Sunnin, who were in the mosque, saying their prayers. In 1916 a working arrangement for that one year was made with the consent of parties but the trouble arose again in 1917 and the Shias made a representation to the District Magistrate, notice was issued to the Sunnis, they filed objections, with the result that the Magistrate directed that the Shias were to stop performing the Matam behind the mosque and within ten yards of it on either side. Thereupon the plaintiffs brought the suit out of which this appeal has arisen in the year 1918. The relief that they claimed was a declaration that they, along with other Shia residents of qasba Aurangabad, were entitled to stop and perform the Matam in a circle on the public thoroughfare at the back of the Jama Masjid and that the defendants had no right to offer obstruction to them or to prevent them from doing so. They further claimed Rs. 200 as damages by reason of the action taken in the years 1916 and 1917 by the Sunni community. They also asked for a permanent injunction to restrain the defendants from in any way obstructing them in performing the Matam in a circle at the back of the mosque. The defendants did not deny the right of the Shia sect to go down the road in procession on the occasion of the Muharram. What they did object to was the stopping of the procession every few paces, the formation of the crowd into a circle for the purpose of performing the Matam and the declaration which the plaintiffs claimed.
3. The learned Subordinate Judge found that no damages had been established and dismissed the claim for them. He gave a declaration that 'subject to the orders of the Local authorities regulating the traffic' the plaintiffs have a right to make 'short' stays in the lane at the back of the Jama Masjid at Aurangabad for the performance of Matam. He granted an injunction restraining the defendants mentioned in the plaint from interfering with the said performance. The defendants have appealed. On their behalf it has been maintained that the right which the plaintiffs claim is a right which no court can possibly decree, for the chief reason that it is one contrary to the user for which the road was dedicated to the public. The plaintiffs have filed objections. They have accepted the decree of the court below so far as the damages are concerned but they object to the words--'Subject to the orders of the local authorities regulating the traffic.' They say that they are entitled to a declaration without the use of these words at all, chiefly because the Local authorities, that is the District Magistrate and the Police officers, are no parties to the suit. It seems to us that the suit as brought must fail. What the plaintiffs want exactly is to be found in the evidence of the plaintiff Saiyid Hasan Ahmad. According to this witness, when the Shia community goes down this road in procession at the back of the mosque the procession stops every two or four paces, forms itself into a circle and performs the Matam, that is, the wailing, the beating of the breast and the crying of the names of Hasan and Huaain. He admits that the road is about 12 feet wide. It will then be seen that the dispute between the parties does not relate to the right of the plaintiffs to pass down this road in procession, but the right to stop on the road. As the witness Hasan Ahmad has admitted, every stoppage lasts from 5 to 7 minutes, so that, the distance in length, behind the mosque being about 25 yards, to cover this 25 yards the procession would take certainly not less than 35 minutes and probably very much longer. We have been referred on behalf of the plaintiffs to a large number of decisions which lay down that religious processions passing along a road are lawful and legal and cannot be prohibited. In some cases it has been laid down that religious processions are entitled to pass along a public road accompanied with music. There is at least one decision that nothing beyond a right of passage may be declared and that the plaintiff is not entitled to a declaration that he has a right to pass along the road while playing music. Be that as it may, we are not now concerned in this case with a right to play music or a right to pass in procession. If we examine the plaintiffs' evidence the right, which the plaintiffs claim is practically a right to stop a procession a large number of times to block the roadway completely and prevent its user by other members of the public. 400 to 500 men are supposed to take part in the procession, but the probability is that a far larger number take part. The repeated stopping of this procession for such long periods as 5 to 7 minutes in a narrow lane behind the mosque is certainly a nuisance and is inconsistent with the maintenance of the paramount idea that the right of the public on a public road is aright of passage. Counsel for the plaintiffs laid great stress on the judgment of the Madras High, Court in Vijiaraghava Chariar v. Emperor (1903) I.L.R. 26 Mad. 554, specially on the remarks to be found at pages 585, 586 and 587. It is difficult to understand why such great stress was laid upon this decision, because, if it be read carefully, it will be seen that the law as laid down there-is that a community has a right to go in procession through a public street subject to the control of the Magistrate and to use the public thoroughfare in a reasonable and usual way, It nowhere has laid down that a procession has a right to stop in the very unreasonable manner which the plaintiffs claim in the present case. Religious processions such as the plaintiffs contemplate in the present case are lawful and legal and come within a proper user of the public highway and are always subject to the control of the District Magistrate and Police Officers. To quote from the very ruling mentioned above, at page 587: 'This passage is referred to with approval by Collins, L.J, in Hickman v. Maisey and he adds, 'now primarily the purpose for which a highway is dedicated is that of passage, as is shown by the case of Dovaston v. Payne, and although in modern times a reasonable extension has been given to the use of the highway as such, the authorities show that the primary purpose of the dedication must always be kept in view. The right of the public to pass and re-pass on a highway is subject to all those reasonable extensions which may, from, time to time, be recognized as necessary to its exercise in accordance with the enlarged notions of people in a country becoming more populous and highly civilized, but they must be such as are not inconsistent with the maintenance of the paramount idea that the right of the public is that of passage.'
4. If we apply the principle underlying these remarks to the facts of the present case, we see clearly that what the plaintiffs ask in the present case is absolutely inconsistent with the maintenance of the paramount idea that the right of the public is that of passage. In plain words, what they ask from the court is a declaration that they have a right to block the passage in a very unreasonable manner. The declaration granted by the court below is a declaration which could not stand even if the plaintiffs were entitled to a right to block the roadway. It is too vague when it lays down that the plaintiffs have got a right to make 'short' stays in the lane. The stoppage of the procession is inconsistent, as we have said above, with the paramount idea that the right of the public along a public road is a right of passage. We repeat again that the plaintiffs' right of passage along this road in procession is not in dispute. They have gone to the furthest extreme and have claimed a right to which they are not entitled and which no civil court could possibly declare, namely, the right to block a road and prevent the public from using it. In our opinion the plaintiffs' suit as brought must fail and ought to have been dismissed. We allow the appeal and set aside the decree of the court below. The plaintiffs' suit will stand dismissed with costs in both courts. The cross-objections are dismissed with costs.