1. The matter has been fully argued before us and we have come to the conclusion that the District Judge's judgment cannot be supported. In the previous litigation the present 1st plaintiff's father claimed a right of way over the path in question. The case was taken up to the High Court and it was held in Khaji Syyad Hussain Saheb v. Ediga Narasimhappa 16 Ind. Cas. 962 : (1913) M.W.N. 991 accepting the finding of the lower Appellate Court in that behalf, that the path was a public one and that the plaintiff was not entitled to maintain the suit without alleging special damage. Accepting this decision the present 1st plaintiff, who is the son of the plaintiff in the previous litigation sued along with three others the same defendants for a declaration that the path is a public one. The necessary sanction under Section 91 of the Civil Procedure Code was obtained to institute the suit. The defendants now plead that it is a private right of way. The District Munsif overruled this plea and gave plaintiffs a decree. On appeal the District Judge has reversed this judgment and has dismissed the suit.
2. Apart from the view we take in regard to the binding nature of the previous judgment it seems to us that it would not conduce to the proper administration of justice, if a defendant who has been defeated on a particular view of the facts put forward by him is allowed to resile from that position and to raise a defence inconsistent with his original contention. Even if there is no question of res judicata, we would have held that the defendants are estopped from questioning the judgment to which they were parties. See Sayam Ramamoorthi Dhora v. Secretary of State 19 Ind. Cas. 656.
3. But we think that the present contention is res judicata and that Explanation VI to sectional governs this case. The essence of a litigation, which is carried on by a private party for injuries sustained by him in the exercise of a right common to him and others, is that there is a public right and that the party suing has suffered special damage in enforcing that right. The fact that in obtaining this individual remedy, it is not open to him to get a declaration embodied in the decree that the right is a public one, will not affect the principle of res judicata. Mr. Balakrishna Rao's citations from English decisions only established that a private individual is not competent to obtain a declaration that a right is a public one. The vindication of such a right is either by indictment or by a suit by the Attorney-General. But no authority has been quoted for the proposition that an individual is not entitled in his own right to seek redress in respect of the injuries sustained by him in the exercise of his privileges connected with a public right. That is a common law right; and when that right is put in Court there must necessarily be a finding whether the special injury was sustained by the plaintiff in exercising his rights as a member of the public. When that adjudication is given, the -finding regarding the right becomes res judicata in a subsequent litigation by virtue of Explanation VI to Section 11 which gives a comprehensive definition of the terms 'under whom they or any of them claimed.' Mr. Balakrishna Rao's argument that the enactment of Section 91 prohibits a member of the public from obtaining a finding regarding the public right would render nugatory Explanation VI to Section 11 and would strike at the root of the common law right which every individual possesses in these matters. There is authority also for the view we have taken. Godimella Bangamma v. Panchangam Narasimhacharyulu 35 Ind. Cas. 31 M.L.J. 26 decides the converse of the present case, but the principle is there recognised as argued by Mr. K. V. Krishnaswami Ayyar that the right litigated in the first litigation need not be on behalf of the general public, provided the foundation of the claim is that the injury was suffered in exercising a right common to the plaintiff and others. Muhammad Amir v. Sumitra Kuar 24 Ind. Cas. 97 is also to the same effect. The decision in Rama Das v. Hanumantha Bow 12 Ind. Cas. 440 under Section 92 of the Code enunciates the same principle.
4. For these reasons we are of opinion that the finding in the. previous litigation that the suit path is public one operates as res judicata in the present suit and that it is not open to the defendants to go behind that finding.
5. We must reverse the decree of the District Judge and restore that of the District Munsif with costs here and in the lower Appellate Court.