1. This is an application for leave to appeal to His Majesty in Council by certain persons, who were defendants, in a suit instituted by one Mohammad Salim, for a declaration that he had a certain right with respect to the sacrifice of cows in a certain village and for injunctions. The suit failed in the Court of first instance but has succeeded in this Court. The Court granted a declaration with certain safeguards and the injunctions prayed for.
2. As already stated, the defendants have made this application for leave to appeal to His Majesty in Council. The question is whether that leave should be granted. It is conceded that the valuation of the suit was below Rs. 10,000 and, therefore, it is impossible to say that the subject-matter involves directly or indirectly property of the value of Rs. 10,000. Mr. Banerji, who appears for the applicants, has contented himself with putting the case under Clause (c), Section 109, Civil P.C. His contention is that the matter is of general importance and the question of law involved in the proposed appeal, has not been settled definitely for India.
3. There can be no doubt that the matter is of general importance. The question is often disputed between the two main communities of the country and in that way it must be a matter of general importance. But the more important question is whether the two points proposed to be argued before their Lordships of the Privy Council have not in truth been settled by a pronouncement of their Lordships or whether we should regard them as still open for argument before the Privy Council. The points that have been urged before us are Clauses (a) and (b) of the memorandum of appeal proposed to be filed before His Majesty in Council. They are as follows:
(a) Because the suit did not involve any claim to any legal character or any right as to any property and as such was not maintainable.
(b) Because Section 42, Specific Relief Act, enables Courts to grant relief where no relief is available in common law and is not intended to be converted into a new and mischievous source of litigation, nor should declaration be made of abstract rights exclusive of practical utility.
4. Put in other words, the question raised is whether Section 42 Specific Relief Act would permit the suit to be maintained. Section 42, of the Act reads as follows:
5. Any person entitled to any legal character or to any right as to any property....
6. It has been urged that no question of any right to any property' is involved in this particular case. The argument is that the right of the plaintiff to sacrifice the cow is not denied, but from the mere fact that the plaintiff owns a cow and that he is entitled, as the owner of the cow, to kill it, it does not follow that the civil Court should grant a declaration to that effect The contention, put in other words, is this: The word right' as used in Section 42 is synonymous with the word' entitled' in the same sentence and that whilst declaration as to title may be given, a wider declaration as to user in any particular way may not.
7. In the case of Manzur Hasan v. Mahmud Zaman certain Shia residents of a village called Aurangabad claimed a declaration that they were entitled to take out a procession through the public streets of the village and to perform their religious ceremonies in the course of the progress of the procession. That right was denied by the Sunni sect of the community and one of the questions that arose was whether such a suit was maintainable in a civil Court. There was a difference of opinion among the High Courts in India and their Lordships, after reviewing all the cases, and one of their own judgments, came clearly to the conclusion that the suit was maintainable. At page 65 of the report it will be found that the suit instituted by the Shias of Aurangabad was far a declaration of their right to go in procession and for a perpetual injunction. The right' there claimed was, therefore, a right to 'use' the public way just as here the right claimed is a right to use the plaintiff's own property in a particular way. In the case before their Lordships of the Privy Council it was not denied that a member of the public had a right to pass over a public road. On the same page their Lordships observe:
The case seems to their Lordships to raise for authoritative decision the question as to the 'right' of religious processions to proceed along the roads in India....
8. Here again is a clear indication that the right claimed was not mere title but a right to use a particular thing in a particular way. At p. 66 of the report their Lordships formulate the following question for themselves:
Does a civil suit lie against those who would prevent a procession with its observances?
9. Having formulated this question for themselves, their Lordships, as already stated, granted a declaration of the 'right.'
10. This case of Mansur Hasan, therefore, appears to be a clear authority that Section 42, Specific Relief Act is no bar to the maintenance of the present suit Mr. Banerji has, however, argued that what their Lordships of the Privy Council had in their mind was Section 9, Civil P.C., and not Section 42, Specific Relief Act. As a matter of fact, the Privy Council do not say that they were considering Section 9, Civil P.C. It is true that they do not also mention Section 42, Specific Act, but in a general way, they do lay down that such a suit of this nature was maintainable. We, therefore, decide that Section 42 is no bar to the maintenance of the suit.
11. The matter being concluded, in our opinion, by a judgment of their Lordships of the Privy Council, it would be unnecessary for us to send up this case for a fresh decision on the same point.
12. In the result, we dismiss this application with costs.