Walsh and Ryves, JJ.
1. We find ourselves unable to agree with the view which the District Judge has taken in this particular matter. The point in dispute is a small one and we think the law is really quite clear. It is probable that the true legal considerations were not pointed out to the learned Judge in the argument. There is in the mohalla Taksalyan, in Muttra, a well which has become the subject of much litigation. There is a mosque adjoining thereto and the trustees of the mosque, who are of course Muhammadans, have been from time to time asserting a right of private ownership over this well. When the word 'well' is used in this connection, it includes of course the chabutra and also certain strips of land adjoining the chabutra and appurtenant to the well, in the same way that when a man speaks of his house he includes the compound and the gate, although they are no part of the house. Some time back the trustees of the mosque came into collision with the Municipal Board about this well. They applied to the Municipal Board for a certain sanction under the Municipalities Act and were refused. They then brought a suit asserting that the well was the property of the mosque, in which they joined the Municipal Board as defendants and in which certain other persons, Banias of the mohalla, applied for and were granted permission to join as defendants in defence of the alleged public property in the well. That suit was tried out and it was held that the trustees of the mosque had failed to prove their title to the well; that the well was a public one, and that the trustees of the mosque had no right to enclose it; Fifteen years have passed since that decision and the trustees of the mosque, having regard to their present assertions, are entitled to some credit for having sat down patiently under that decision for so long. But whether times have changed, or whether the trustees regard 15 years as a period longer than is reasonable to expect judicial consistency, they have recently erected what they politely call a room, but what is really a structure in which nobody is ever likely to sit or was ever intended to sit, but which represents in the shape of a wall an obstruction to the public use of the well. This was no doubt done in defiance of the previous decision and as a challenge to the public. Possibly the complexion of the Municipal Board has changed in the interval. It would have been possible for the Municipal Board representing the public to have brought a suit for the removal of that construction; (by Section 55 of the Act of 1900, and by the corresponding section of the Act of 1916, all public wells in Muttra are vested to the Municipal Board), but they did not; and the present plaintiffs being residents in the mohalla, interested in the well if it, is a public one, properly obtained the sanction of the Legal Remembrancer to bring a suit under Section 91 for the removal of this interference with their public right. The Municipal Board of course represents the public in such matters as wells and other things which are vested in them, but the refusal of the Municipal Board, or the negligence of the Municipal Board, to assert a public right does not affect the existence of the public right, and the plaintiffs had a perfect right to sue in assertion of their public right if they could get the necessary authority required by the Legislature for bringing such a suit. So stated, it would seem perfectly obvious and a mere matter of common sense, apart from any legal considerations, that the only question was whether the construction put up by the trustees of the mosque was an interference with the public well or with the public enjoyment thereof. Nobody could reasonably suppose that it was open to the trustees in any suit brought by persons representing the public to question the point which has already been decided against them. Probably on this ground no evidence was taken in the court below and the Munsif came to the conclusion that the previous decision bound the defendants, and that the construction which the defendants erected amounted to an encroachment, and made an order accordingly for its removal. The defendants appealed upon the ground that the matter was not res judicata, and the District Judge probably overlooking, the provisions of Section 11, explanation VI, to which we will refer in a moment, has come to the conclusion that the suit is not between the same parties. The view he probably took was that by Section 41 of the Evidence Act the previous judgment was not a judgment in rem within the meaning of Section 41, but that it was merely a matter which was to be taken into consideration within the meaning, of Section 42 of the Indian Evidence Act. He actually says that the issues and the principal parties are different. In one sense they are, but where we differ from him is that, in our opinion, in the legal sense they are the same. Mr. Gulzari Lal, for the trustees of the mosque, suggested that the question in this suit related to a certain triangular insignificant piece of land, which was outside the well and outside the previous dispute. That point was certainly not clearly stated by the defendants in their written statement; but it is a question of fact as to whether or not it appertains to the well. The suit was brought in relation to the obstruction which had been erected on this triangular piece of land on the allegation that the piece appertained to the well. It has not been seriously disputed that it does, and, of course, if it does, the triangular piece was substantially decided even though the word used in the former judgment was 'well.' With regard to the parties, that is not a question of fact but a question of law. The persons are undoubtedly not the same nor is the form under which they appear on the record, but the Municipal Board in the previous suit represented the public. The Banias who asked to be joined could not have done so except upon a bond fide assertion of an interest in the public right, and as they were defendants in the suit brought by the trustees, there can be no doubt that they were bond fide litigating in respect of a public right which they were defending. Section 11 forbids any court to try an issue which has been substantially in issue in a former suit between the parties under whom they claim. As a matter of fact the section seems slightly obscure in this respect; but it must mean the parties to the subsequent suit claiming under parties to the prior suit, and, applying explanation VI to this case, it is quite clear that the present plaintiffs are claiming under the persons who bond fide litigated in respect of a public right in the first suit. The result is that Section 11 applies and that no issue can be raised in this suit as to whether or not this well and its appurtenances are public property. There being nothing else left in the suit, the appeal must be allowed and the judgment and decree of the Munsif restored with costs here and below.
2. We suggest that if the parties are desirous of arriving at a final agreement which will bind them and their successors for all time as to the actual dimensions of this public well, the best plan would be for them, if they are agreeable thereto, to apply to the Munsif under this decree to make a further addition thereto. Of course he cannot do so without their consent, but with their consent there will be no difficulty whatever, and on such application the Munsif either by going there himself or by sending his amin, could demarcate the land itself, have a photograph, taken or by measurement have a plan prepared and affixed to this decree finally showing in a clear picture the dimensions of the land appertaining to the well. If any attempt to do this is made or any difficulty occurs, reference may be made to this Bench, but we do not wish the Munsif to understand that he is compelled to do anything if he is not disposed to do so.