1. The appellant is the defendant and the appeal is directed against the judgment of affirmance of the learned 3rd Additional Subordinate Judge, Siwan.

2. The litigation arose in the following circumstances: Plot Nos. 3891 and 3890 appertaining to Khata No. 683 of Mauza Siwan belonged to the appellant Ramrup Pandey. These two plots adjoins each other. Plot No. 3892 also adjoins plot No. 3891. By a registered deed of sale dated 14-10-1963 the plaintiff purchased the southern portion of plot 3891 measuring 17 dhurs and the northern part of plot 3892 measuring 12 dhurs from defendant No. 1. After this purchase the plaintiff constructed his house on the purchased portion of plot 3891. The suit land has been described in the plaint and they stand marked by two rectangular figures ABCE and EFGH. The dimensions of the rectangle ABCD is 3 ft. east to west and 9 ft. north to south. The dimensions of the figure EFGH is 3 ft. north to south and 138 ft. east to west. The total area of these two figures have been shown as 5½ dhurs and this is the suit land.

2-A. The case of the plaintiff was that ABCD and EFGH that is to say, the suit property, ABCD existing in plot No. 3891 and EFGH in plot No. 3890, both belonging to defendant No. 1 were rastas since long being used as such by the general public as also the plaintiff. The defendants put bamboos and Tattis on a portion of the suit land interfering with the right of user of the general public including the plaintiff. This led to the institution of the suit by the plaintiff for a declaration that the suit land was being used as a Rasta and the defendants had no right to block the same. Further prayer was for a direction to the defendant to remove the bamboos and the Tattis kept on the suit land.

3. This suit was filed in the year 1964. On 29-9-1969 the plaintiff put in a prayer for amendment of the plaint to the effect that the suit land was a public Rasta and that the plaintiff was suing in representative capacity as contemplated in Order-1, Rule 8 of the Code of Civil Procedure. By order dated 27-11-1969 the prayer for amendment of the plaint was allowed on payment of Rs. 32 as cost to the defendant which amount was paid to the lawyer for the defendants and accepted by him. The plaint was amended and on an opportunity being given to the defendants they filed additional written statement as well. Notice as contemplated under Order 1, Rule 8 of the Code of Civil Procedure was issued and published duly.

4. The defendants contested the suit mainly on the ground that the suit land was never a Rasta nor the members of the public had ever acquired right of easement of way over the same.

5. The trial court found that the plaintiff and other members of the public at large had acquired right of easement over the suit land and that the defendants had no right to interfere in the exercise of right of easement over the same. The result was that the trial court decreed the plaintiff's suit. The defendants carried the matter in appeal. The lower appellate court affirmed the finding of the trial court referred to above and dismissed the appeal. It is in these circumstances the defendants have come to this court in second appeal.

6. The substantial point of law as formulated by the learned single Judge while admitting this second appeal may be seen in Order No. 3 dated 14-11-1979. The submission of Shri Dwivedi, learned counsel for the appellant, in substance was twofold. His firm contention was that no permission having been granted by the trial court as required under O. 1, Rule 8 of the Code of Civil Procedure the suit is not maintainable and needs to be dismissed outright. His second submission was that the finding of fact recorded by both the courts below were in the nature of inferences from the facts found and these findings were perverse so far as the declaration of the two courts below that the space covered by figure ABCD in the map attached to the plaint was a Rasta to which the public had acquired right of easement. Such a declaration has been given by the two courts below regarding the space covered by figures EFGH also but frankly enough Sri Dwivedi did not dispute nor could he dispute the finding of fact recorded by the two courts below regarding the same, namely, that the space shown by the figure was a Rasta in public use over which the public had a right of easement. Shri Singh learned counsel for the respondent refuted these contentions of Shri Dwivedi regarding the figure ABCD.

7. For the reasons of public policy and preventing multiplicity of suits Order 1, Rule 8 of the Code of Civil Procedure provides, inter alia, that where there are numerous persons having the same interest in one suit, one or more of such persons may with permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. Rule 8(2) of Order 1, provides that the court shall in every case where permission or direction is given under sub-rule (1) give notice of the institution of the suit to all persons so interested to have their say, if any, in the litigation. Rule 8(6) provides that a decree passed in a suit under this rule shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended as the case may be. Order 1, Rule 8(1)(a) while necessitating the permission of the court does not lay down that such permission must be recorded in writing. Reasonably enough in relevant circumstances and on appropriate materials the court can infer that the permission of the court was given impliedly. This apart any irregularity on this score will be curable under the provision of Section 99 of the Code of Civil Procedure. Initially the plaintiff filed the plaint in his individual capacity. Subsequently, however, he filed a petition for amendment of the plaint. The amendment sought for was that the plaintiff be given permission to sue in representative capacity and that the Rasta be declared to be in use of the public by virtue of the right of easement acquired. This prayer for amendment, as stated above, was heard on 27-11-1969 and the prayer was allowed on payment of cost which was received by the learned counsel for the defendants. The plaint was amended, accordingly, and then notice as required in Order 1, Rule 8(2) was ordered to be issued. The order sheet indicates that the said notice was duly served. Amendment of the plaint necessitated an opportunity to the defendants to file additional written statement. The defendants got this opportunity and filed written statement. Issues framed earlier needed recast and paragraph 4 of the trial court judgment shows that issues were recast at the instance of the defendants.

Learned counsel for the appellant relied on a single Bench decision of Allahabad High Court reported in AIR 1973 All 281 (Smt. Munni Devi v. Satgur Dayal Tandon) wherein it was held that permission of the court is an essential condition for maintaining a suit in a representative capacity and it is only when such leave is granted that the court shall issue notice that such a suit has been instituted. Granting of permission by the court is no doubt necessary but the question is whether such permission should be expressly given in writing or in appropriate circumstances the permission should be deemed to have been given impliedly. This decision does not say that for want of permission unless it is given specifically in writing, the suit must fail. This apart notice having been issued in that case mainly to invite objections from the general public as to the prayer of the plaintiff for suing in a representative capacity being allowed, the facts of this case are manifestly distinguishable from the facts of the instant case.

8. Learned counsel for the respondents relied on a decision of the Bombay High Court reported in AIR 1959 Bom 491 (Mukhda Mannudas v. Chhagan Kisan Bhawasar*) wherein it was held that there need not be a formal order on Record for permission to sue in representative capacity under O. 1, R. 8 and the permission can be inferred where the plaintiffs' prayer that they should be allowed to sue in a representative capacity under O. 1, R. 8 is granted by the court. In such circumstances the lower appellate Court was right in concluding that the trial Court will be deemed to have accorded permission sought for under O. 1, R. 8 impliedly. This contention of Shri Dwivedi must, therefore, fail and the suit is held to be maintainable.

9. Coming to the other contention of Shri Dwivedi, if I may say so, the suit lands consists of two parts under ABCD and EFGH. It is only the finding of the two courts below about ABCD that is being challenged as perverse. The trial court as also the lower appellate court, it must be said at once, has recorded the finding about ABCD being a public Rasta in public use by virtue of right of easement acquired, on due consideration of the evidence adduced. There is concurrent findings of fact of both the two courts below on this point. Certain principles have been laid down about the approach to be adopted by the High Court while sitting in second appeal. In this connection one of the decisions may be referred to as reported in AIR 1963 SC 302 (V. Ramachandra Ayyar v. Ramalingam Chettiar) wherein their Lordships of the Supreme Court laid down that if a finding of fact has been recorded by the new Rasta came into being after construction of the house by the plaintiff on plot No. 3891 which has been undisputedly constructed after he purchased the land in 1963. A reference to paragraph 4, however, may show that the new Rasta was not a Rasta other than the disputed Rasta. It is true that in his examination-in-chief P.W 6 stated that this Rasta was thereafter the construction of the house (Wah Rasta Makan Banne Ke Bad Se Hai). It appears what he meant to say is that this Rasta came into existence only after the construction of the house. Learned counsel for the respondent referred to in this connection the evidence of D.W 4 in paragraph 10 wherein he stated that adjoining north of the land which was sold to the plaintiff there stood his Baithak at one time. He further statred that when that Baithak was there he used to pass through the disputed Rasta. The lower appellate Court has dealt with the evidence of the witnesses for the plaintiffs while dealing with the evidence of the witnesses for the plaintiff and he specifically referred to the evidence of P.Ws 3, 5 and 6 who have unequivocally stated that there is a public Rasta and that this Rasta has been coming into existence since long before the time of their hosh.

10. The next submission of Shri Dwivedi was that the Rasta represented by figures ABCD would have been useless for the public inasmuch as that Rasta leads exclusively to the house of the plaintiff. The map appended to the plaint no doubt shows this position but the purchase by the plaintiff was made in the year 1963 and the possibility of the public acquiring right of easement over the same is there and the plaintiff has successfully established this aspect of the case. It is true that evidence about the existence of Rasta shown by EFGH cannot lead to the inference about the existence of Rasta represented by figures ABCD but on going through the evidence on record it appears that all the witnesses have referred to the two blocks of the Rasta as the disputed land and their evidence, therefore, obviously related to both parts of the Rasta. The plaintiff might have purchased the land of plot No. 3891 in 1963 but if the general public acquired right of easement over the Rasta ABCD by long user as required under the law, the plaintiff being one of public can well claim such right in spite of his purchase in the year 1963. I have given my anxious consideration to the evidence on the record and I see no justification to interfere with the concurrent finding of facts recorded by the two courts below regarding the acquisition of the right of easement by the public over the Rasta shown by figures ABCD and EFGH in the map attached to the plaint as well.

11. There is, thus no merit in this appeal which fails and is dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs of this second appeal and the parties are directed to bear their own costs.

Appeal dismissed.