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Bhauram v. Ladu Singh
Factual and Procedural Background
This is a civil second appeal by the defendants in a suit for injunction concerning a pathway and access to a tank (the “Gogana” tank) adjacent to the village Janaokhari (Tehsil Rajgarh). The plaintiffs (residents of Janaokhari) alleged that a pathway (shown in the plan as A–B) ran from the village through Plaintiff No.1's field (Khasra Nos. 145/50) and ended near the tank (Khasra No. 117, denoted ‘J’). The pathway was said to be used by villagers to take cattle to the tank and to fetch water.
On or about 8 August 1956, the defendants erected a wall near point C on the plan, obstructing the lower portion of the pathway so villagers could only go from A to C and not reach point B. Plaintiffs applied to the Tehsil for removal and were directed to pursue civil proceedings. They alleged in the plaint that their personal rights and those of other villagers were infringed and stated they obtained sanction from the Collector under sec. 91(1) CPC (said to be granted on 6 August 1956). The suit sought a declaration that the pathway was a village pathway for the plaintiffs and their village, an injunction restraining defendants from obstructing it, and an order removing the obstruction.
The defendants denied the plaintiffs’ claims, asserted there was another pathway recorded in revenue papers, and contended plaintiffs suffered no special damage. They also argued that the suit required the consent of the Advocate General under sec. 91 CPC and therefore was not maintainable. The trial court held that plaintiffs had acquired a prescriptive easement; the lower appellate court held the pathway was a customary village pathway. Both courts rejected the defendants' plea that the suit was barred by sec. 91, concluding the pathway was not a public thoroughfare within the meaning of sec. 91. This appeal challenges those conclusions.
Legal Issues Presented
- Whether a suit for removal of an obstruction to a pathway, described or assumed to be a public nuisance, can be instituted without the prior consent of the Advocate General under sec. 91(1) of the Civil Procedure Code when the plaintiff claims personal (special) damage.
- Whether the plaintiffs (in particular Plaintiff No. 1) have alleged and established such special damage (i.e., a personal cause of action) that makes the suit maintainable independently of sec. 91(1) (by virtue of sec. 91(2)).
- Whether the decree may properly grant relief on behalf of other villagers (i.e., whether plaintiffs can obtain relief not limited to their personal rights).
Arguments of the Parties
Appellants' (Defendants') Arguments
- The suit is not maintainable because it was filed without the consent of the Advocate General as required by sec. 91 C.P.C. for actions concerning public nuisance.
- The plaintiffs did not suffer any special damage; rights alleged were common to the public/villagers, so the suit, being in substance for removal of a public nuisance, required Advocate General's consent.
- There is an alternative pathway recorded in revenue papers, and therefore plaintiffs' claimed pathway/right may be mischaracterised.
Plaintiffs' Arguments
- Plaintiffs asserted they had obtained sanction from the Collector (empowered under sec. 93 CPC) to file the suit under sec. 91(1) CPC — alleged to be granted on 6 August 1956.
- Plaintiffs described the way as a village pathway (not a public thoroughfare in the broader sense) and alleged personal infringement of rights, particularly Plaintiff No. 1 who had his field adjacent to the village and used the pathway to reach the tank for cattle and water.
- On the pleadings, they asked for declaration and injunction qua the village pathway for themselves and the village.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mool Chand v. Chhoga & Co. | Discussed whether obstruction to a village pathway amounts to public nuisance; judge inclined to view that it does. | The court noted the case and proceeded on the assumption (for present purposes) that the obstruction may be a public nuisance, following the inclination observed in this authority. |
| Saiyid Mansur v. Saiyid Muhammad Zamanl (Privy Council) | Warning that the English distinction between indictment and action regarding highways should not be applied in India. | Used to caution against importing English procedural distinctions and to frame the interpretation of sec. 91 in the Indian context. |
| Choudhary Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur | Observation (Meredith, J.) that sec. 91(1) confers a new right: with Advocate General's consent, two or more persons may sue for removal of public nuisance without proof of special damage. | The court relied on this to explain that sec. 91(1) creates a new right to sue without special damage but does not extinguish independent causes of action preserved by sec. 91(2). |
| Dalgobinda Mahatha v. Kathu Mahatha | Authority that in the case of a village pathway a resident may enforce his right to pass through without recourse to sec. 91. | Applied as one of several authorities supporting the proposition that a village resident may have an independent cause of action to remove an obstruction to a village pathway. |
| S.K. Murugesa Mudaly v. Baruda Arunegiri Mudaly | Support for the proposition that rights over village pathways can be enforced by residents independently of sec. 91. | Relied on as part of a group of cases establishing that village pathway users may sue without involving sec. 91 procedure. |
| Faqir Chand v. Sooraj Singh | Authority supporting enforcement of rights in respect of village pathways by residents. | Used with other cases to show the existence of independent causes of action for villagers. |
| Somu Nogireddy v. Courugari Lingareddi | Authority cited for the principle that village pathway rights can be enforced by residents. | Part of the cluster of precedents indicating a resident's independent remedy exists. |
| Bandaru Venkayya v. Lakshmi Narasayya | Authority supporting villagers' independent cause of action in respect of village pathways. | Relied upon to reinforce the court's view that sec. 91 does not oust independent remedies. |
| Thangavel Nadir v. Sudalaimada Nadar | Another case cited for the principle that residents may enforce village pathway rights without sec. 91. | Used among other authorities to support the conclusion that Plaintiff No.1 had an independent right to sue. |
| Dasrath Mahto v. Narain Mahto | Authority that even in the case of a public thoroughfare a person in immediate neighbourhood entitled to use it may have special cause of action. | Applied to support the proposition that proximity and entitlement to use can establish special damage sufficient to maintain a suit independent of sec. 91(1). |
| Pahlad Maharaj v. Gauri Dutt Marwari | Similar proposition: immediate neighbourhood/user may have special cause of action in case of obstruction to a public thoroughfare. | Relied upon to show that obstruction to a public thoroughfare does not invariably channel all suits into sec. 91(1) — nearby users may sue independently. |
Court's Reasoning and Analysis
The court proceeded in several analytical steps, each based on material contained in the opinion:
- On characterization of the obstruction: the court observed prior authority (Mool Chand) and noted it would be acceptable to proceed on the assumption that the obstruction to the pathway could be treated as a public nuisance. The court expressly assumed, for present purposes, that the plaintiffs’ description of the matter as a public nuisance could be accepted.
- On the scope and purpose of sec. 91 C.P.C: the court analyzed sec. 91(1) as creating a specific procedural right allowing the Advocate General, or two or more persons with his written consent, to institute suits for removal of a public nuisance without proof of special damage — a mechanism to enable public-spirited litigants to bring such suits and to avoid multiplicity. The court quoted and relied on the formulation in Choudhary Bibhuti Narayan Singh to show that sec. 91(1) “confers a new right” to sue without special damage.
- On limitations of sec. 91 C.P.C: the court emphasized that sub-sec. (2) preserves any right of suit existing independently of sub-sec. (1). Therefore sec. 91(1) does not oust or extinguish independent causes of action where a plaintiff can demonstrate special damage or other private rights infringed.
- On constitutional/contextual caution: the court drew on the Privy Council’s warning in Saiyid Mansur to avoid importing English procedural distinctions about highways into Indian law, indicating the need to interpret sec. 91 in the Indian legal context.
- On application to facts: the court examined the plaint and found that Plaintiff No.1 had pleaded facts showing personal use and infringement — he lived in the village, had his field adjacent to the village, used the pathway to take cattle to the tank and to fetch water. Thus Plaintiff No.1 had alleged special damage and an independent cause of action which could be maintained without the Advocate General's consent (i.e., under the saving in sec. 91(2)).
- On the Collector’s sanction: although plaintiffs alleged they obtained the Collector's sanction under sec. 91/93, the court found the Collector’s endorsement (“Case may be registered”) dubious and concluded it could not be taken as the requisite sanction under sec. 91 CPC. Therefore, for present purposes, the suit had been filed without the consent of the Advocate General or any authority under sec. 93.
- On the scope of relief: while the plaintiffs’ pleadings sought relief not only for themselves but also for other villagers, the court held that plaintiffs cannot be granted relief on behalf of other villagers. Consequently, the decree required modification to delete the words “and the other villagers of village Janaokhari.”
- Conclusion of analysis: because at least Plaintiff No.1 had alleged special damage and thus an independent cause of action preserved by sec. 91(2), the suit was maintainable despite the absence of Advocate General’s consent; however, relief could not extend to other villagers who were not parties asserting their own cause of action.
Holding and Implications
Holding: The appeal is dismissed with costs, subject to a modification of the decree deleting the words “and the other villagers of village Janaokhari.”
Implications:
- Direct effect: The trial / appellate courts’ determinations that plaintiffs (or at least Plaintiff No.1) have a cause of action to seek removal of the obstruction stand; the appeal by the defendants fails. The decree is modified to confine relief to the plaintiffs themselves and not to extend relief on behalf of other villagers.
- On sec. 91 C.P.C: The court clarified the interplay between sub-sec. (1) and sub-sec. (2): sec. 91(1) creates a procedural route allowing suits for public nuisance without proof of special damage with the Advocate General's consent, but sec. 91(2) preserves any independent right of suit — a person who suffers special damage may sue without such consent. Thus, sec. 91 does not universally bar private suits where special damage or an independent cause of action is pleaded.
- Broader precedent: The opinion applies and synthesizes prior authorities but does not purport to lay down a novel rule beyond the application of existing principles — its immediate consequence is the modification of the decree and dismissal of the appeal with costs.
This summary is strictly limited to the content and reasoning present in the provided opinion and does not add or infer facts or holdings beyond that text.
Bhandari, J.:— This is a civil second appeal on behalf of the defendants in a suit for injunction. The plaintiff-respondents and the defendant-appellants are residents of village Janaokhari (Tehsil Rajgarh). To the east of this place there is a johar (tank) known as ‘Gogana’ tank. The plaintiffs' case is that this tank is being used by the public. In the Settlement Record it is shown as Khasra No. 117 and in the plan filed with the plaint, it is denoted by the letter ‘J’. The plaintiffs' case further is that Plaintiff No. 1 had his field—Khasra Nos. 145/50 adjacent to the village, and a village pathway passed from the village through his field and through the fields of other villagers and ended near the aforesaid tank. In the plan this pathway is shown A to B. The lower portion of this pathway is adjacent to the field of one of the defendants. The plaintiffs' case is that this pathway was being utilized by the villagers of the village Janaokhari for taking their cattle to the aforesaid tank and for bringing water to the village from the tank. On or about 8th of August 1956 the defendants raised a wall near the point ‘C’ in the plan and this obstructed the pathway. Thus, the plaintiff and the villagers of the aforesaid village could not traverse the whole pathway so as to reach the aforesaid tank at the Point ‘B’, but could only go from ‘A’ to ‘C’. This amounted, according to the plaintiffs, to a public nuisance. The plaintiffs had filed an application in Tehsil Rajgarh to remove the obstruction but they were ordered to take proceedings in a court of law. The plaintiffs expressly mentioned in the plaint that their rights were specially infringed by the closure of the pathway in this manner and that the rights of the other villagers were also infringed. They applied to the Collector, Chum for granting permission to file a suit under sec. 91(1) CPC, which according to them, was granted on the 6th of August 1956. They, therefore, filed the present suit praying for a declaration that the aforsaid pathway was a village pathway for the plaintiffs' and the aforesaid village and the defendants had no right to close it. They also prayed that the defendants be restrained from creating any obstruction in that pathway and the obstruction put by them should be ordered to be removed. The defendants contested the suit and denied the allegations of the plaintiffs. According to them, there was another pathway passing through the field of Mauji Jat Asaram Chowdhry and Ladu Singh Rajput Plaintiff No. 1 and this was the pathway-recorded in the revenue papers. It was also pleaded that the plaintiffs did not suffer any special damage and they had filed the suit with the consent of the Advocate General as required under sec. 91 CPC and therefore the suit was liable to be dismissed. The trial court held that the plaintiffs have acquired a right of easement to the pathway A to B by prescription, while the lower appellate court has held that the pathway from A to B was a customary village pathway. Both the lower courts decided against the defendants on the plea that the suit was not maintainable, rejecting it on the ground that sec. 91 was not applicable as the pathway in dispute was not a public thoroughfare. There was an argument before it that the plaintiffs hide themselves called it a public nuisance in their plaint and they cannot deny that it was a public thoroughfare but it controverted this argument by pointing out that the substance of the case of the plaintiffs was that it was a village pathway which word was used in the plaint in Paragraphs 9-10 and also in the paragraph relating to reliefs.
2. In this second appeal, learned counsel for appellants has mainly argued that the suit was not maintainable as it was filed without the consent of the Advocate General as required by sec. 91 of the Civil Procedure Code.
3. It has been mentioned in the plaint that the plaintiffs had obtained the sanction of the Collector who has also been empowered to grant sanction under sec. 91 CPC by virtue of sec. 93 but the order of the Collector is very dubious inasmuch as he has written the words ‘Case may be registered’, on the application filed by the plaintiffs for grant of sanction and it cannot be said that they had obtained the sanction of the requisite authority under sec. 91 CPC. It may, therefore, be taken that the suit has been filed without the consent of the Advocate-General or any other authority mentioned in sec. 93 CPC. It may also be mentioned that though the plaintiffs have used the words “Aamrasta” in the plaint, but they have clarified Page: 483this by describing it as a village pathway. It may also be mentioned that the plaintiffs had definitely mentioned in the plaint that their personal right to take their cattle through this village pathway to the tank and to bring water from the tank is infringed by the closing of the pathway though they have also mentioned that such right is enjoyed by the other villagers and that the rights of the other villagers were also infringed.
4. It has been argued that the plaintiffs have nowhere stated in the plaint how they suffered any special damage on account of the closure of the pathway. There is no force in this contention. The plaintiffs have clearly mentioned that they were the residents of village Janaokhara and it has also been mentioned that plaintiff No. 1 had his field adjacent to that village. It is also mentioned in paragraph No. 3 that plaintiff No. 1 used to take his cattle to the tank through this pathway and used to bring water also from the tank through the same. Thus there are clear allegations that at least plaintiff No. 1 suffered special damage.
5. The argument of the learned counsel for the appellants, however, is that similar rights according to the plaintiffs were enjoyed by the other villagers and the closure of the pathway by the defendants constituted a public nuisance for which the plaintiffs and the other villagers had a common grievance and for the removal of such public nuisance, the suit could be brought only under sec. 91 CPC with the consent of the Advocate General, and as there was no such consent, the suit was barred by the provisions of sec. 91 C.P.C which runs, as follows—
“91.(1) In the case of a public nuisance the Advocate General, or 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, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independent of its provisions”.
6. Sec. 91 CPC has been a subject matter of judicial discussion in a number of cases in Courts in India. In this Court, this judicial controversy is noticed by Modi, J. in Mool Chand v. Chhoga & Co. (1). The learned Judge did not express any definite view whether the obstruction to a village pathway amounted to public nuisance or not but his judgment shows that he was inclined to take the view that it amounts to public nuisance. In the case before me the plaintiffs have themselves described it as a public nuisance and it would be better for me to proceed on the assumption that it is a public nuisance.
7. The question, however, remains whether even when there is a case of public nuisance it is always necessary for the plaintiff's to obtain the consent of the Advocate General before filing the suit. In any discussion relating to the provisions of sec. 91 C.P.C we must take note of the warning given by their Lordships of the Privy Council in Saiyid Mansur v. Saiyid Muhammad Zamanl (2) that—
“The distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India.”
8. The purpose of sec. 91 may be to avoid multiplicity of suits relating to public Nuisance. In my humble opinion the purpose may be more fundamental inasmuch as two or more persons who may be not directly concerned with the public nuisance which is involved in the case but who are public spirited enough to see that it is removed may come in a court of law for the removal of the nuisance with the previous consent of the Advocate General. If such two or more persons come to a court of law, they can come only by virtue of sub-sec. (1) of sec. 91, otherwise they have no independent cause of action. In this sense, sub-sec. (1) creates a right to maintain the suit in the two persons as observed by Meredith, J. in Choudhary Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur (3);—
“It does confer a new right, and in express terms, namely the right wilh the consent of the Advocate General to sue for the removal of a public nuisance without proof of special damage. That was a right which could not exist independently of that section.” (p. 462)
9. But this does not mean that sec. 91 takes away the right of any person if he has any cause of action to maintain a suit without the consent of the Advocate General. Sub-sec. (2) of sec. 91 C.P.C makes this position very clear.
10. I may in this connection refer to the following passage in the Journal of the Indian Law Institute, New Delhi, January, 1959 Issue, in the Article ‘Legal-Interest required to challenge the validity of administrative action: A Preliminary Survey: by A.T Markose, Director of Research, Indian Law Institute p. 273.
“Before reviewing some of the decisions relating to this subject it is necessary to mention certain provisions of the Civil Procedure Code of India that give certain powers to the Advocate General. The general position to-day is that because of the provisions of sec. 91 and 92 of the Civil Procedure Code except in the case of a right of way over public paths (which as Mukherjee, J. pointed out was not a private right strictly so called) no private person can file a suit for the removal of a public nuisance without showing specialdamage. We have seen that in Italy among the matters allowed to be agitated by the azione populari is one in the matter of charitable institutions. Any person of a district can sue to set right illegalities that have taken place in a charitable foundation of that district. In India, that kind of function is now considered to be the exclusive duty of the Advocate General of the State concerned. The Advocate-General has to sue, or give in writing consent to two or more persons to sue for declaration and an injunction in cases of public nuisance under sub-sec. (1) of sec. 91 of the C.P.C At the same time sub-sec. (2) of sec. 91 C.P.C preserves any right of suit which may exist independently of the above mentioned section. Since any right of suit that may exist in lependently of sec. 9 C.P.C is preserved we have to see whether, before the Civil Procedure Code, members of the public as such were allowed to file such suits”
11. The crx of the matter is to examine whether any person has a cause of action for infringement of his right under what may be called the law of the land. If he has, he cannot be debarred from filing the suit under sec. 91 sub-sec. (1). Ordinarily man whose right is infringed has a cause of action to go to a court of law for the enforcement of the remedy provided in law. In a case of obstruction of a pathway, be it a public nuisance or not, a person may show that such obstruction should be removed as he lives in proximity where obstruction has been caused and his right to go by a particular way to his place of residence or to his field is affected and would operate so injuriously on him as to entitle him to come to a court of law praying for its removal independently of the provisions of sec. 91(1) C.P.C The right to take out procession was safeguarded by their Lordships, of the Privy Council in Saiyid Manzur Hassan's case (2). There is ample authority in the following cases that in the case of a village pathway, a resident of a village may enforce his right to pass through that pathway without having recourse to sec. 91. Dalgobinda Mahatha v. Kathu Mahatha (4), S.K Murugesa Mudaly v. Baruda Arunegiri Mudaly (5), Faqir Chand v. Sooraj Singh (6), Somu Nogireddy v. Courugari Lingareddi (7), Bandaru Venkayya v. Lakshmi Narasayya (8) and Thangavel Nadir v. Sudalaimada Nadar (9). Even in the case of public thoroughfare a person in the immediate neighbourhood and entitled to use a public thoroughfare may be taken to have a special cause of action to maintain the suit for the removal of the obstruction. (See (1) Dasrath Mahto v. Narain Mahto (10) and Pahlad Maharaj v. Gauri Dutt Marwari (11). The essence of the matter is whether the individual who has brought the suit has a cause of action to maintain it. If he has, his case falls under sub-sec. (2) of sec. 91 of the Code of Civil Procedure and he is not bringing the suit because of the right given under sub-sec. (1) of sec. 91 and his suit is maintainable. In this view of the matter, the plaintiffs (or at least plaintiff No. 1) have/has clearly the right to file the suit without the consent of the Advocate General under sub-sec. (1) or the Collector. The prayer in the suit is couched in the language showing that plaintiffs be granted a right over the village pathway AB not only for themselves but for other villagers of village Janaokhari also and the relief granted is also with respect to other villagers. The plaintiffs cannot be granted any relief for other villagers. It is, therefore, necessary to modify the decree passed in favour of the plaintiffs to that extent and in the decree the words ‘and the other villagers of village Janaokhari’ are deleted. With this modification, the appeal fails and is dismissed with costs.
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