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Hakim Mahmud Hasan and ors. Vs. L. Amba Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All941
AppellantHakim Mahmud Hasan and ors.
RespondentL. Amba Prasad and ors.
Excerpt:
.....signed, the compromise, the entire communities had made them their representatives and in that way they bad given an express or, at any rate, an implied consent, the decision would not be applicable to this case. in the present case the point that i would like to emphasize is that the suit is not brought on behalf of the entire public of nanauta, but is brought by certain members of one community only to vindicate their right to take out processions along that route. nor am i satisfied that it can be said in this case that special damage has not been proved......to the maintainability of the suit. both the courts below have recorded a finding that there was a public right of way across this land. the trial court went into the question at considerable length and discussed all the important oral and documentary pieces of evidence. the lower appellate court has not discussed the documentary evidence in the same manner, but has remarked:the learned munsif has discussed at very commendable length the entire documentary evidence on the record and i consider it a mere repetition to discuss it here again. i need only add that i agree with the lower court that the documentary evidence overwhelmingly proves that the disputed way is a public way. 2. he has referred to some evidence, but 'not to all the pieces of the documentary evidence. in my opinion the.....
Judgment:

Sulaiman, C.J.

1. This is an appeal on behalf of the defendants arising out of a suit brought by seven Hindus for a declaration that the Hindu residents of Nanauta have a right to take out their processions with all paraphernalia along a route over the defendants' land as also to pass that way and take out their carts by that way and for the removal of certain doors which have been fixed by the defendants obstructing this right and for a perpetual, injunction restraining them from offering any such obstruction in future. It is denied that there was any public way along this path and the defendants also took other technical pleas as to the maintainability of the suit. Both the Courts below have recorded a finding that there was a public right of way across this land. The trial Court went into the question at considerable length and discussed all the important oral and documentary pieces of evidence. The lower appellate Court has not discussed the documentary evidence in the same manner, but has remarked:

The learned Munsif has discussed at very commendable length the entire documentary evidence on the record and I consider it a mere repetition to discuss it here again. I need only add that I agree with the lower Court that the documentary evidence overwhelmingly proves that the disputed way is a public way.

2. He has referred to some evidence, but 'not to all the pieces of the documentary evidence. In my opinion the finding must be taken as a finding of fact and is not viciated by the mere circumstance that certain documentary evidence has not been referred to in the judgment. In 'particular, the lower appellate Court has not referred to a written compromise entered into by certain leading Hindus and certain leading Mohamedans, dated 14th October 1927. The next point urged in order to get round the finding of fact is that the lower appellate Court has made certain assumptions in the opening portion of the judgment and his finding is based on these assumptions. No doubt the lower appellate Court has begun its judgment in a very unhappy manner by saying them; there is a public way, that the public of Nanauta used that way and took their carts, etc., on that way and that the Hindu residents also took their religious processions, etc., by that way. But I am satisfied that this way of stating the facts was due to carelessness of the learned Judge who apparently meant that that wan the plaintiffs' case and that these were the allegations because he went on to refer to the defendants' case and then to the findings of the trial Court and then stated the points which were for determination. In spite of the mistaken way of beginning the judgment, I do not think that there was really any such confusion in the mind of the lower appellate Court. I, must therefore take it that the finding of fact is binding upon me and must be accepted in second appeal.

3. The next point urged is that the written compromise which was by way of an amicable settlement of the dispute between the two communities estops the plaintiffs from maintaining the present suit. It may be very unfortunate that a compromise arrived at some years ago which might have been acted upon between the parties and which might have been considered to be very satisfactory and fair, is not now accepted by one community. But the question is whether the compromise can legally bind that community. The first serious difficulty in the way of the defendants is that there was no express plea in the written statement that this compromise had the effect of estoppel. There was a reference in para. 9 to what took place in 1927, but there was no plea that the written compromise was binding on the present plaintiffs. Accordingly no specific issue was framed on this question by the trial Court, though the trial Court, no doubt, referred to this compromise in its judgment. But it did not go into the question of the binding nature of the com-promise because it felt that the point not having been raised in the written statement, the plaintiffs had no opportunity to give evidence that the Hindu residents of Nanauta had not signed the compromise representing all the Hindus of Nanauta. In the grounds of appeal before the lower appellate Court the point was not expressly taken that the compromise operated as an estoppel. Accordingly the lower appellate Court has not discussed the question and it does not appear that the point was expressly pressed before it because it is not contained in the abbreviated grounds mentioned in the judgment. In these circumstances I do not thirik that it would be proper to allow this point to be raised in second appeal in the form in which it is taken.

4. If a point taken like this were allowed to be raised, then no doubt there would be some support for the contention based upon it, in view of the decision of a Bench of this Court in Babu Ram Singh v. Subhan 1929 All 519, by Boys and Bennet, JJ. Apparently in that case a similar compromise entered into by the leading members of the two communities was held to be binding and the agreement was considered to have been signed by all the signatories in their representative capacity. If the finding in that judgment was based on the view that in point of fact, although only a few leaders signed, the compromise, the entire communities had made them their representatives and in that way they bad given an express or, at any rate, an implied consent, the decision would not be applicable to this case. But if it was intended to be laid down that a compromise signed by a few self chosen representatives on behalf of the two communities is binding on both the communities for all time to come, I would have felt great hesitation in following that decision and would have been compelled to refer the case to a Division Bench. But in this case, as I think that I should not allow a new point to be taken that this was a compromise made by the representatives of the two communities which absolutely binds the plaintiffs, the point does not arise for decision. The third point urged before me is that the obstruction of a public way amounted to a public nuisance within the meaning of Section 91, Civil P.C., and accordingly the plaintiffs had ho right to maintain a suit without the previous sanction of the Advocate-General. The present suit is, no doubt, a suit brought under Order 1, Rule 8, Civil P.C., and is a representative suit brought on behalf of the entire Hindu community, but it is not a suit brought on behalf of the public of Nanauta, but is on behalf of one particular community forming part of it. Unlike Section 92(2) which provides that no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section, Section 91 has a different sub-section added to it, under which nothing in that section shall be deemed to limit or other wise affect any right of suit which may exist independently of its provisions. Section 91, Sub-section (1) authorises two or more persons to sue with the previous consent of the Advocate-General in respect of a public nuisance, but it does not compel them to do so nor is there anything in Section 91 which confers a new right. If a right exists independently of that section, that right is not taken away. Obviously therefore B. 91 confers no new right, and it does not take away any pre-existing right. I am therefore unable to hold that the present suit is defective because a previous consent of the Advocate-General had not been taken.

5. The last point urged is that no suit for the removal of a public nuisance can be maintained without proving special damage caused to the plaintiff. Of course, if a plaintiff comes to Court merely on the allegation that the public in general has suffered some damage or is likely to suffer some damage on account of a public nuisance a suit may not be maintainable if the plaintiff does not also allege that he himself, as a member of the public, has suffered or is likely to suffer some damage. But where the plaintiff has been himself obstructed and prevented from exercising his right which he has in common with others, I have not been shown any authority which has laid down that his suit is not maintainable. In the present case the point that I would like to emphasize is that the suit is not brought on behalf of the entire public of Nanauta, but is brought by certain members of one community only to vindicate their right to take out processions along that route. The plaintiffs therefore, strictly speaking, put forward not a claim for the removal of what can be called a public nuisance, but brought a suit for remedying the infringement of a special right exercised by the Hindu community only. In this view of the matter the suit in my opinion, would be maintainable. Nor am I satisfied that it can be said in this case that special damage has not been proved. If there is a right to take out a procession along a particular route and the defendants' action causes an obstruction with the result that the processionists are compelled to change the route or are prevented from following the usual route, that in) my opinion would amount to special damage. In these views, I dismiss the appeal with costs.


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