1. This is an appeal of five Vaishes of Moradabad, who instituted the suit out of which this appeal has arisen against the Secretary of State for India and five Mohamedan shop-keepers of Chowmukha Pal, Moradabad.
2. The cause of action of these five Vaishes of Moradabad, as set out in the plaint, is that without any reasonable and lawful ground, Maulvi Shams ud-din, the Tahsildar of Moradabad, prohibited and interfered with the bathing of the public and drawing water in a lota from the well and with the drawing of the water by the chamars, and on the report of the Tahsildar the Collector passed an order prohibiting the public from bathing, and the said order was contrary to the rights of the plaintiffs and the other parsons entitled and is prejudicial to them. With reference to the five Mahomedan shopkeepers, who are impleaded as defendants, the plaintiffs alleged:
On the strength of their party and religious bigotry they hinder and obstruct the plaintiffs, the other Hindus and others from lawfully using the said wall so that they show a threatening demeanour.
3. In para. 9 the plaintiffs alleged that in the suit many have a similar right, and on behalf of all of them the plaintiffs bring the case under Order 1, Rule 8. They, therefore, ask for a perpetual injunction against the defendants restraining them from interfering with the use of the welt in any way. They also seek for a declaration that as the well was constructed for the benefit of the public, the plaintiffs and also all the other Hindu public irrespective of caste are entitled to use the well for the purpose of bathing and taking water, and that all the Hindu public as well as the other persons are entitled to use the pucca well without interference or objection of anyone.
4. The suit was contested by the Secretary of State as also 'by the five Mahomedan defendants, The Court of first instance decreed the suit in the following words:
The plaintiffs' suit for a declaration that the entire Hindu public and other persons are entitled to use the well specified in the plaint without any restriction of caste, creed or colour and for injunction restraining the defendant from preventing any member of the public from, using the same is decreed. The plaintiffs' claim, as to bathing on the well is dismissed with this reservation that they will have a right to bathe on the platform of the well marked by me in the plan, Ex. (1), by the letter 'P' till they obtain sanction from the Defendant No. 1 to build a separate platform near the well and at a distance of at least one yard from it. Since the plaintiffs and the Defendants Nos. 2 to 6 do not come with true allegations, I would not award costs to any of them. As the plea of the Defendant No. 1 mainly succeeds, I order the plaintiffs to pay costs of the Defendant No. 1.
5. The appeal of the five Muhammadan defendants was heard by the learned District Judge of Moradabad. He has dismissed the suit on the ground that the plaintiffs had no cause of action. The plaintiffs have come up in second appeal and contend that it is immaterial whether any interference is made with the persons who actually come into Court but because the five Vaishes are Hindus, and the right's of sweepers and chamars are contested they are entitled to bring the suit as the representative suit, and they have good cause of action. I am of opinion that the plaintiffs' appeal must fail. Order 1, Rule 8, pre-supposes that the persons suing must have the same interest as the other parsons on whose behalf the suit is instituted. The Court below has said as follows:
As the rights of the Hindu community as Hindus are not denied by the defendants, although the rights of certain parsons who happened to be Hindus are denied, I am unable to hold that the plaintiffs, because they are Hindus are entitled to sue, although they do not belong to the particular set of persons who are prevented from enjoying the use of water from this well by the action of the defendants.
6. The appeal is dismissed. The parties must bear their own costs.