1. We must take the facts before us to be that the plaintiff is the owner of a piece of land, that the substantial defendant alleges that that piece of land forms part of a public highway, that he took proceedings before the Magistrate under Section 133 of the Criminal Procedure Code against the plaintiff for obstruction to the alleged highway, and that an order absolute was made by the Magistrate under Section 137 directing the removal of the obstruction. The present suit has been brought practically for the purpose of obtaining a declaration that the plaintiff is the owner of the land free from any right of highway. The questions referred to us are these:
[His Lordship here read the questions referred and continued.]
2. It seems convenient to examine this matter under two separate heads, and to consider first whether, upon general principles, the present suit, either in its existing form or with any modifications, can lie, and what relief, if any, can be given in it; and, secondly, to consider whether, if so, the suit is barred by the provisions of the Criminal Procedure Code, or by the proceedings which have been taken under it.
3. With regard to the first of these questions, it may be useful to premise that by the common law of England there are three distinct classes of rights of way and other similar rights. First, there are private rights in the strict sense of the term vested in particular individuals or the owners of particular tenements, and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as the freemen of a city, the tenants of a manor, or the inhabitants of a parish or village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exist for the benefit of all the Queen's subjects; and the source of these is ordinarily dedication.
4. It is unnecessary to enquire whether the mode of acquiring each of these classes of rights is necessarily the same in all cases in England and in India. But it is, I think, important to remember that these three classes of rights exist in the one country as well as in the other. The first class, strictly private rights, we are all familiar with. The third class, public rights are of frequent occurrence. The second class of rights belonging to a portion of the public are also to be found in India. They are expressly recognised by the Legislature in Section 42, Illustration A, and Section 54, Illustration P, of the Specific Belief Act. It is specially important that this class of rights should be clearly understood and borne in mind in a country like India, where interests of the most essential importance depend so largely upon custom. And I am not sure that the existence of this class of rights has not sometimes been overlooked. I think there is reason to suspect that, in some cases, ways and other claims of a like nature have been treated as public rights, when perhaps they might have been both more correctly and more conveniently regarded as village ways and village rights; more correctly, because I think there is reason to suppose that such village roads as distinguished from public roads are of very common occurrence; more conveniently, because, as I shall show later, there may be more easy civil remedies for treating questions of village roads than questions relating to public roads.
5. With regard to private roads strictly so called, the provisions of the law for asserting rights of way on the one hand or resisting them on the other, in the Civil Courts are too well known to require detailed consideration here. With regard to rights vested in classes, it is unnecessary to enquire for the present purpose how far the same civil remedies are available on the one side and on the other, as in the case of strictly private ways. But it is, I think, important to observe that there are some additional remedies certainly open. First, where such a right is claimed, it would seem that a member of the class entitled might, by taking the proper steps under Section 30 of the Civil Procedure Code, obtain permission to sue, on behalf of himself and the other members of the class, any one who disturbed or sought to disturb the right of way. Upon the other hand, in s. 42, Illustration A of the Specific Relief Act, it seems to be distinctly pointed out that where such a right is claimed, a suit will lie by the owner of the soil for n declaration negativing the right, and I presume under Section 30 of the Civil Procedure Code a suit might be so brought, with the permission of the Court, against one or more members of the class as representing the rest. Section 54, Illustration P of the Specific Relief Act, further shows that if the owner of the soil obtained a declaratory decree against several villagers negativing a right of way, this would be good ground for restraining by injunction suits subsequently brought by the others. Again, a remedy is probably given for preventing the infringement of such a right of way under Section 133 and the following sections of the Criminal Procedure Code, no less than in the case of a public way in the full sense of the term.
6. When we turn to the case of public ways in the full sense of the term (and the present case falls under that heading), it is not quite so easy to say what remedies are open in the interest of the public on the one side and on the other side of the owner of the land who denies the public right. Certain suggested classes of suits directly connected with proceedings such as those which in this case have taken place before the Magistrate may be very briefly dismissed, but I shall consider them one by one. In the first place, it is plain both on principle and authority that no suit will lie to set aside the Magistrate's order. It is sufficient on this point to refer to the cases of Ujalamayi Dasi v. Chundra Kumar Neogi 4. B.L.R.F.B. 24 Mutty Ram Sahoo v. Moti Lall Roy 6 C. 291 and Rooke v. Pearee Lall Coal Go. 11 W.R. 434 : B.L.R. App. 43. Nor can the plaintiff sue the Magistrate personally, for the Magistrate has only acted in the discharge of his legal duty in a judicial character. For this may be cited Ujalamayi's case cited above and Meechoo Chunder Sircar v. Ravenshaw 11 B.L.R. 9 : 19 W.R. 345. Nor can the person who institutes proceedings be sued for damages, for he has only set the law in motion. For this, may be cited Chinta Monee Bapoolee v. Bigamber Mitter 10 W.R. 409 : 2 B.L.R.S.N. 15.
7. But putting all these forms of suit aside as out of the question, it remains to consider what remedies there are on one side and on the other for trying the question of the existence of a public right of way. In the Bombay Presidency no difficulty arises because by 11 W.R. Section 37 of the Bombay Act V of 1879 the soil of public roads is vested in the Secretary of State. Accordingly every question of highway becomes of necessity a question of conflicting titles to the soil, and can be treated as such. The case is probably much the same in Calcutta by reason of Section 189 of the Calcutta Municipal Consolidation Act, 1876, which vests the soil of public streets in the Commissioners, and perhaps also in Mufussil Municipalities, under Section 30 of Bengal Act III of 1884. But there is no such law applicable to the Province of Bengal generally.
8. If any one obstructs a public highway he may be liable to a criminal charge of nuisance under Section 283 of the Penal Code, or of mischief under Section 431, if the circumstances be such as to sustain either of these charges. Any one who sustains special injury by reason of an obstruction to a highway may bring a suit, claiming damages, and any other appropriate relief. And further, under Section 133 and the following sections of the Criminal Procedure Code, summary proceedings may be taken by a Magisterial to prevent or remove any such obstruction injurious to the public.
9. On the other hand, if a man owns land and anybody trespasses upon it, claiming a right to use it as a public highway, there can be no doubt that a suit for damages will lie. Under special circumstances, and if the injury likely to result were of a grave nature, I presume an injunction might be granted to restrain the threatened invasion of a man's property under a claim of public highway. Neither of these remedies is available under the circumstances of the present case. But I can see no reason, on principle, why a suit for a declaration of right should not lie, under Section 42 of the Specific Relief Act, on the part of an owner of land, against any one who has formally claimed to use the land as a public road, and thereby endangered the title of the owner. Such a suit could not have been maintained before the Specific Relief Act, because no consequential relief could have been claimed, and on this ground the decision proceeded in Madhub Chunder Gooho v. Kumla Kant Chuckerbutty 6 B.L.R. 643 : 15 W.R. 293. But the law upon this point has been altered by that Act. It is true that the declaration sc given would be absolutely binding only on the defendant to the suit, but it may be that no one but the defendant raises any claim adverse to the plaintiff, and that a decision binding upon the defendant will be sufficient for the plaintiff's protection, and if so, I do not see why he should not have such a declaration. Moreover, though such a declaration would not be conclusive against a stranger, it would be admissible against a stranger under Section 42 of the Evidence Act; and if the suit were fairly and properly conducted, the decision would, I think, be practically conclusive in any subsequent proceeding. It should be remembered, too, that exactly the same inconvenience or defect would occur, either in this country or in England, if the suit were one complaining of an actual trespass, in which the defendant justified his act under a claim to use the place in question as a public road, and if his claim were rejected. If such a suit as this does not lie, there seems to be no provision in the law by which a man can establish his title to enjoy his own land freely, as against one who claims to use it as a highway, and that is a state of things which I think we should not accept as the law, unless we are constrained to do so.
10. The second branch of the enquiry is whether, assuming such a suit to lie on general principles, it is barred by the provisions of the Criminal Procedure Code or by the proceedings which have taken place under them. It has been decided by a Full Bench in Raj Koomar Singh v. Shahebzada Roy 3 C. 20 that the existence of these provisions is not a bar to a suit brought for an obstruction on a highway by a parson who has suffered special damage, and I think it clear that it can no more be a bar to a suit of the converse kind brought to negative the existence of a highway.
11. The question remains whether the proceedings that have taken place before the Magistrate are a bar to this suit; in other words, whether an order absolute by a Magistrate for the removal of an obstruction from a place held by him to be a highway is final and conclusive upon the question of highway or no highway. The decision of a Magistrate in a summary proceeding is not, I think, ordinarily final and conclusive on a question of title, and does not exclude the jurisdiction of the Civil Courts to enquire into the matter, unless the intention of the Legislature that it shall have such effect is shown. In the present case, no such intention is expressly declared, arid such indications of intention as are to be found seem to me to point in the other direction. It is expressly said that a preliminary order under Section 133 is not to be called in question by a Civil Court, and that no suit shall lie (which means I apprehend no suit for damages for anything done in good faith under Section 140 or Section 142. But nothing is said as to the order absolute which, if anything does so, affects the title.
12. The authorities upon this point appear to stand thus: Act XXI of 1841 differed much in its language from the sections we now have to construe, especially in that it gave an appeal from the Magistrate's order. Under that Act there was some conflict of decision as to whether the Magistrate's order precluded a civil suit to try the existence of a highway. In The Government v. Choonee Lall S.D.A. (1853) 129 it seems to have been thought that such a suit would not lie, and the same view was taken in Prankishen Surma v. Ramrooder Surma Marsh 214 : 2 Hay 86, and apparently in Kedarnath Mookerjee v. Parbutty Peishtar 2 W.R. 267. On the other hand, in Anundmohun Khan v. Roy Shambhoonath Chuckerbuttee S.D.A. (1858) 938, it was held that a civil suit lay to establish that a place was not a highway which the Magistrate bad held to be one, and this was followed in Sham Doss v. Bhola Doss 1 W.R. 324.
13. under Section 308 of the Criminal Procedure Code (Act XXV) of 1861, there was again some conflict of opinion. In Bhakas Ram Sahoo v. Chummun Ram 7 W.R. 11 the question was treated as an open one, but it was said that if a suit lay the Government must be a party, a view also thrown out in the case cited from the Sudder Dewanny Adawlut, 1858. In Azeezoolleh Gazee v. Bunk Beharee Roy 7 W.R. 48 and in Bam Shodoy Ghose v. Juttadharee Holdar 7 W.R. 95 the jurisdiction of the Civil Court was expressly upheld. Some observations of Peacock, C.J., in Boroda Pershad Moostafee v. Gora Chand Moostafee 12 W.R. 160 : 3 B.L.R.A.C. 295 are rather against the jurisdiction and in Meechoo Chunder Sarcar v. Ravenshaw 11 B.L.R. 9 : 19 W.R. 345. Couch, C.J., expressed a decided opinion that a Magistrate's decision bars a civil suit.
14. Under the Code now in force in Khodabuksh Mundul v. Monglai Mundul 14 C 60 Prisep and Bevlrly, JJ., decided that a civil suit is barred by the Magistrate's order. On the other hand, in this Court, White and Field, JJ., in Motty Ram Sahoo v. Mohi Lall Roy 6 C. 291, held that the Magistrate's decision did not preclude a Civil Court from enquiring into the question of title. And in the Bombay High Court this view has been repeatedly accepted, both under the earlier and under the present Acts. It was taken by Melville and Kemball, JJ., in Lalji Ukheda v. Jowba Douba 8 B.H.C.R.A.C. 94; by Westropp, C.J., and F. Melville. J., in Nilkanthapa Malkapa v. Magistrate of Sholapur 6 B. 670; and by Melville and West, JJ., in Bularam Chatrukalal v. Magistrate of Taluqa Igatpuri 6 C. 672
15. I should answer the first question referred to us in the affirmative. I should answer the second by saying that the declaratory decree given is correct. The third and fourth I should answer by saying that the Secretary of State could not properly be made a party. And I should dismiss the appeal without costs.