1. The defendants have been found by the lower Appellate Court to have dug a channel through a part of the village site, and that portion of the channel which passes through the village site also runs in front of the house of the plaintiffs and lies between their house and the well. The plaintiffs have therefore brought this suit on behalf of the village community for a mandatory injunction requiring the defendants to block up that part of the channel. Which lies within the village site. The only point argued in appeal is whether the suit is maintainable. I do not think there can, be any doubt that the plaintiffs can have no cause of action unless they suffered special damage from the construction of this channel; and I do not consider that the construction of this channel is anything more than a common nuisance. It seems to me equally clear that the only manner in which a common nuisance can be abated is for a suit to be brought Under Section 91, Civil P.C. with the permission of the Advocate General. It has been argued in support of the judgment of the lower Court' that the whole community of the village could bring a suit for the abatement of this nuisance; but I do not find any authority for that contention. Revd. P.G. Simon v. Thuraimuthu Kadamban (1910) 6 I.C. 41 has been cited as an instance where a village community were allowed to sue where a certain person wrongfully cultivated a part of the village natham; but that case can be distinguished as it appears that the whole village, including the village site, was held by the ryots themselves and not, as ordinarily, by the Government or zamindar, when the Government becomes the trustee on behalf of the villagers for the protection and care of property ordinarily described as communal property. Ramchandara V. All Muhammad (1913) 35 All 197 is another case on which the respondents rely and was an instance where certain Mahomedans were prevented from worshipping in a mosque because it had bean alienated to a Hindu; and it was held that a suit was maintainable by individual Mahomedans because each of them had a right to worship in that mosque and if his right was interfered with he had a right to sue. It has been pointed out that there was no public right to worship in that mosque, the right belonging to every one of the numerous members of a particular community. Ramchandara V. All Muhammad (1913) 35 All 197 has therefore to distinguished on that ground. The only remedy for a member of the public who is inconvenienced by a nuisance but has suffered no special damage from it is therefore to seek the permission of the Advocate-General Under Section 91, Civil P.C.
2. A point has incidentally been raised in this appeal as an Additional reason why the lower Appellate Court should not have granted the mandatory injunction prayed for and that is the great delay in bringing the suit, As to that, I find that no objection was raised on that ground in the written statement or in the grounds of appeal in the lower Appellate Court; and I am not therefore prepared to listen to it now. In spite of the fact that the plaintiffs were not entitled to bring the suit or to proceed with it without the permission of the Advocate. General, I do not think that the decree of the lower Appellate Court should be set aside on that ground in view of the fact that this objection was not expressly taken in the Courts below. The defendants allowed the suit and the first appeal to proceed without clearly raising this technical objection. I do not see why, in view of the fact that Section 91, Civil P.C. does not actually prohibit the filing of a suit unless the Advocate-General consents, the absence of the consent of the Advocate-General should not be the subject of a waiver by the defendants. It is true of course that if Section 91, Civil P.C. had said that no suit should be filed with regard to a common nuisance without the consent of the Advocate-General, such an objection as has here bean taken could be raised at any stage; as it would be a statutory bar to the filing of the suit. Sub-section 91 is not so worded. It runs:
Two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit though no special damage has been caused;
and I think this difference in the wording has the effect that a mere failure to obtain the permission of the Advocate-General would not render a suit not maintainable if no objection is taken by the other side. I do not think, it would be equitable be allow the defendants to raise a plea at this stage after the plaintiffs have gone through the expense and trouble of conducting the suit and defending it in appeal. Both the Courts below treated the suit by the plaintiffs as one representing the community; and as the defendant seemed content that the suit should proceed upon the footing that it was a representative suit, the decree should not be set aside merely on the ground that the permission of the Advocate. General was not obtained. The appeal is therefore dismissed with costs.