1. In disposing of A.S. No. 372 of 1926 the learned Subordinate Judge in my view has confounded two entirely different issues. In para. 6 of his judgment he proposes to himself the question whether the plaintiff's claim is cognizable by a civil Court, which is the subject matter of issue 6. He then goes on to discuss what the claim amounts to and appears to be deciding the question whether the plaintiff has established a right to require the gods to be stopped at his house, which is the subject matter of issue 2, though he concludes by finding that the right claimed by the plaintiff is not cognizable by a civil Court. I must take it that he has restricted himself to a consideration of issue 6 and that he has left issue 2 undecided.
2. The case upon which he seems to have relied on in his somewhat confused discussion is Krishnaswami Ayyangar v. Rangaswami Ayyangar (1909) 5 IC 76. There is no doubt that the brief passage in the judgment which is relevant upon this point concludes with the observation that the suit is not of a nature of which a civil Court can take cognizance. But the grounds given for coming to that conclusion are in the first place that the right claimed to stop the idol in front of the plaintiff's house is not part of the right to worship by a member of the community for whose benefit the temple has been dedicated, which, I think, must be regarded as a finding upon the merits of that particular case; another finding of the same description is that there can be no right to obstruct a highway for the purpose connected with the plaintiff's claim. I find it difficult to understand how the cognizable character of the claim can be decided on grounds such as these. It is unnecessary to canvass this case further because, in my view, the Privy Council case in Manzur Hasan v. Muhammad Zaman , which the learned Subordinate Judge dismisses as having no reference to the circumstances with which we are now dealing, is clear authority, as the learned District Munsif has taken it to be, that a claim by a person to exercise a right of worship is a claim of a description cognizable by a civil Court. Their Lordships have made reference to the differing views taken by the High Courts of Bombay and Madras and have expressed a preference for the Madras view, upheld by Calcutta, that a suit of this character is cognizable by a civil Court. Their Lordships were dealing with the right to conduct a religious procession through a public street; but their decision sets at rest the more general question, whether a claim to conduct or to participate in public worships is actionable. There can be no doubt that, whether it be well or ill-founded, the plaintiff's claim, is one so to participate and I think it is quite clear accordingly that issue 6 in the suit must be answered in plaintiff's favour.
3. The learned District Munsif, who has decided all the issues, has given the plaintiff a decree with reference to the two deities, Gangai Amman and Ponni Amman, which formed the subject matter of A.S. No. 372 of 1926 before the Subordinate Judge. The learned Subordinate Judge has not proceeded to consider the other issues with the exception of one, namely, issue 7, on the question of non-joinder. The point here raised was that the villagers as a body constituted the trustees of the affairs of these deities, that the defendants in obstructing the plaintiff acted as such trustees and that it was necessary either to implead all the villagers or to bring a representative suit in order that an operative decree might be passed. The single case upon which the learned Subordinate Judge in accepting this contention has relied upon is Haran Sheikh v. Ramesh Chandra AIR 1921 Cal 622.
4. That was a case against servient owners as defendants by a plaintiff who claimed a right of way over land in which the servient owners had shares. One such servient owner was omitted, and the Court held that the non-joinder was a fatal defect on the ground that the decree, if made, must be infructuous. 'With all respect it is difficult to see why it should have been infructuous against those persons who were parties to it, and in a later case, Surja Narain v. Chandra : AIR1924Cal1050 , doubts have been expressed as to the correctness of this decision. In the present/instance the plaintiff does not go so far as to say that the defendants' denial of his right is made as representing the trustees or that the trustees themselves had made any such denial of his right to participate in the worship. He has selected these defendants, he says, because they are the persons who have by overt acts obstructed him in the exercise of his alleged right. In these circumstances I am unable to see why a decree should not be passed against these persons, the plaintiff of course to take the risk that obstruction may come from some other quarter, which would not be bound by the decree. I cannot find any valid ground in this objection. With regard to the other deity, Dropathi Amman, the subject of A.S. No. 383 of 1926 on the file of the Subordinate Judge's Court, the question of the cognizability of the claim has again been raised; but I think it is unnecessary to enter into it because in this instance the learned Subordinate Judge has found that, assuming it to be a claim which can be entertained by a civil Court, the plaintiff voluntarily abandoned the exercise of any right he may have possessed by giving up the celebration of the festival in 1920. This is a finding of fact on which both the lower Courts are concurrent and is sufficient to dispose of the case in this respect, and I therefore record no finding in this instance upon issue 6.
5. The result of my findings is that the portion of the Subordinate Judge's decree which relates to A.S. No. 372 of 1926 is set aside and the lower appellate Court will restore A.S. No. 372 of 1926 to its file and proceed to dispose of it after finding upon the remaining issues. The portion of the decree relating to A.S. No. 383 of 1926 is confirmed. The appellant will pay the respondents half the costs of the second appeal. The remaining half of the costs will abide and follow the result of A.S. No. 372 of 1926.