The suit out of which this appeal arises was filed by four plaintiffs in a representative capacity for a declaration that Survey No. 65/6 in the village of Singanur of extent about 77 or 78 cents in kalam poramboke and for an injunction restraining the defendants from having a Droupadi Ammen temple in any portion of that land. The original extent of the land was about 83 cents but in the north-east corner of it there is an old Perumal temple. Both the Courts below found that the suit land is Kalam poramboke. I will first deal with the preliminary objection that has been taken by the learned Advocate for the respondents. He contends that the appeal cannot proceed because it was originally filed by defendants 1 to 5 who were permitted by the District Munsif to defend the suit on behalf of those villagers who were of the same opinion as themselves but the second appellant died and his legal representatives were not brought on the record and the remaining four appellants are not persons who were authorised to carry on the appeal. The first case relied on for this contention is Wali Muhammad v. Mahlu (1). In that case certain persons filed a suit on behalf of themselves and several others under O. 1, R. 8 of the Code of Civil Procedure. Some of the persons so represented were also plaintiffs. They obtained a decree. In second appeal one of the persons who obtained sanction to represent others died and an application to bring his legal representatives on record was made in time but some of the other plaintiffs also died but their legal representatives had not been brought on record. It was held that it was a joint decree obtained by all the plaintiffs and though, after sanction under O. 1. R. 8 the second set of plaintiffs were not necessary plaintiffs, they having been parties to the suit and the appeal, their legal representatives ought to be brought on the record and the order under O. 1, R. 8 will not relieve the appellants from the necessity of impleading all the decree-holders or their legal representatives and therefore the appeal will abate in toto. An earlier decision of the same Court in Ram Dayal v. Mohammad Raju Shah (2), was distinguished on the ground that the persons who died never applied to be made parties to the suit and were not on the record. They were only represented by one person who obtained sanction under O. 1, R. 8 of the Code of Civil Procedure. The decision in Wali Muhammad v. Mahlu relies on and follows another decision of the same Court in Appeal No. 3169 of 1918 decided in 1922 and the two cases were said to be on all fours. These decisions were followed in Samail v. Haji (3). In this case five of the respondents were permitted to defend the appeal on behalf of others by an order under O. 1, R. 8 and there is no death among these respondents. But there were other respondents in the appeal as originally filed and some of these died. It was contended by the appellants' Advocate that the appeal did not abate but, the Court held that the other respondents having obtained a decree and having been made parties to the appeal, their representatives also ought to be made parties and if they are not made parties the appeal will abate. In my opinion these two cases are distinguishable on the facts from the case before me. In the second appeal before me I have not got the complication of parties other than those who obtained sanction under O. 1, R. 8 being parties in appeal. In the first place those are cases where the deaths occurred among the respondents and because the original respondents obtained a joint decree it was held that the appeal could not proceed without the legal representatives of all the respondents. But in the present case the death of parties is among the appellants and all the appellants were only those who obtained sanction under O. 1, R. 8. Another case mentioned is Srinivasalu Chetti v. Guraviah . In that case several plaintiffs obtained a decree for joint possession. There was an appeal, one of the plaintiffs-respondents died and his legal representatives were not brought on record. This case cannot help the respondents in the present second appeal. It being a joint decree for possession in favour of several parties, all of them or their legal representatives ought to be respondents on the record. There is no order under O.1, R. 8 of the Code of Civil Procedure in that case. Another case relied on before me is the decision of the Calcutta High Court in Naimuddin Biswas v. Mamruddin Lashkar . Here there is a decree against four landlords. They appealed, one of them died and his heirs were not brought on record. It was held that the whole appeal abated. There the rule was laid down that if the appeal can be heard in the absence of the deceased appellant the appeal can proceed but if the appeal cannot be so heard then only the appeal abates and whether the appeal can be so heard or not depends upon the nature of the suit. In this case also there is no order under O. 1, R. 8. In my opinion none of the cases cited governs the present case. It seems to me that where sanction was originally given by the Court to a certain number of persons either to prosecute or defend a suit and one of them dies his heirs are not competent to prosecute or defend the suit because the sanction was accorded to certain individual persons eo nomine and not to their heirs and unless the order can be construed so as to confer the right on the legal representatives also the right does not survive. In such a case the proper procedure seems to me for the remaining persons to apply to the Court for directions. They should bring to the notice of the Court that one of the parsons to whom the original sanction was given is dead and request the Court for directions whether the Court will be pleased to permit the remaining persons to continue to prosecute or defend the suit or if it thinks that the original number is necessary, directions should be given authorising an additional person who need not necessarily be the legal representative of the deceased person to join the survivors; and when the Court gives the necessary orders the suit will proceed. To say that in all such cases, first, that the legal representatives should be brought on record, secondly that if they are not brought on record the suit abates seems to defeat the ends of justice. In the present case I give sanction to the remaining four appellants to proceed with the appeal on behalf of their party and disallow the preliminary objection.
The only question in the case is whether the right of the villagers to use the suit land as a kalam porambake is infringed if the defendants use a considerable portion of it for the Droupadi temple and its festivals. The District Munsif gave a decree according to which the Government was to fix a site of 2 cents in extent in the south-west corner of the suit land towards the west of the pathway running across the land and the defendants will remove their temple to that site from the present spot A. There is also an injunction to that effect and also prohibiting animal sacrifices on the suit land. There was an appeal by the defendants and a memorandum of objections by the respondents to the Subordinate Judge of Cuddalore. The Subordinate Judge dismissed the appeal and allowed the memorandum of objections. He found that the suit land is a kalam poramhoke and that building a temple and carrying on festivals on it would be a substantial infringement of the right of the villagers to use the land as a kalam and that the lower Court had no power to direct the Government to select a particular spot for the temple. The defendants file this second appeal.
I may now state some of the facts either admitted or found. The image of Droupadi was first brought to this village in about 1912 from Peramandur. Originally the villagers intended to construct the temple of Droupadi Ammen at a spot C towards the east of the village. At that time all the villagers seemed to co-operate together as the resolutions embodied in Ex. G show. A contract was given to one Mr. Doraiswami Mudaliar to look after the construction at the spot C. Rs. 600 were spent in raising some superstructure at the spot C but afterwards it was found that the necessary ground which has to be purchased for the site of the temple could not be purchased except at a very heavy cost and the whole scheme had to be dropped. Meanwhile the image was installed and a temporary temple was constructed at a spot B towards the southern end of the suit land. The actual ground covered by the temple is about 2 cents but at some distance from it there is a pit for fire-walking and also some similar shrines for Arjuna and Duryodhana. Now if it is only two cents of land that is required for the Droupadi festival, obviously the matter is one that ought to be settled in an amicable way, whatever the strict legal rights may be; and it is apparently in this spirit that the Munsif gave his judgment. If a small slice of two cents is cut off from this plot of 77 cents, not only will the defendants' party be satisfied but the inconvenience that can be caused to the villagers in the way of using the suit land as kalam would be very little. I may mention have that after the District Munsiff's decree the Government have selected a spot towards the west of the extent of two cents but the defendants are not satisfied. It is said one reason why the defendants want to remove the temple from the spot B in the south to the spot A is that some houses in the village took fire and the defendants believe in the superstition that because the Goddess had her eye on the houses therefore the houses took fire and if the temple is removed to a spot whence the Goddess can command only the street there will not be such accidents. This superstitious belief is the reason for the defendants' desiring a change. At first sight one feels that such superstitions should not waste the time of the public Courts. However, we have to decide the case according to the legal rights. When the case came on before Phillips and Madhavan Nair JJ., they directed that the Government should be made a party. The Government has been made a party and the Government Pleader stated that the Government have selected a spot of two cents according to the direction of the District Munsif but the defendants are not willing to take it. He also questioned the correctness of the Sub-Judge's observations in paragraph 64 of the Judgment. It is unnecessary to decide this question. The truth of the matter is that defendants want not two cents but a good deal more. One of the points raised before me by the learned Advocate-General is that unless the plaintiffs can show special damage the suit is not sustainable. But I am not able to agree with this contention. We are not concerned here with a public right or a pathway as to which there is an obstruction and a private party cannot maintain a suit unless there is special damage. In this case the kalam poramboke is dedicated to the use of the villagers as a threshing floor, the actual ownership being vested in the Government. The suit is filed on behalf of all the villagers. The villagers do not sue as members of the public but as the persons who have the right of using the suit land as a threshing floor. This objection of the learned Advocate-General must therefore be disallowed. He then mentioned a case in Ramaswami Iyer v. Secretary of State for India in which there was a communal land a part of which (of the extent of 41 cents) was granted to some potters. It was found that there was still left 1 acre 54 cents for communal purposes and there was also another plot of 2 acres 77 cents available for the same purposes. In the case before me there is no other land and the extent of the suit land is 77 cents. In my opinion the present case is distinguishable from the one cited. If it is only two cents that are wanted for the defendants, it may be that one is inclined to help the defendants. But a perusal of the 1st defendant's deposition shows that they cannot be content with a plot of two cents. This is apparently the reason why they would not accept the selection made by the Government. At page 60 he says “I want 33 cents in all for the purpose of the temple and only one cent for the temple construction purposes “. In re-examination he says the 33 cents are wanted for the purpose of the Kuttu which lasts for 18 days in a year. He also says that in the Bhajana temple 200 people will assemble. The commissioner appointed in the case states that the building portion measures 40 links east to west and 27 links north to south, the shed extends to 10 links more towards the east and 2 links more on other sides, and the Dhwajasthambham is 15 links distant from the shed. We have got altogether a plot of 67 by 31 links. This is about two cents. About 20 links to the east of the Dhwajasthambham there is the idol of Duryodhana on an elevated spot measuring 20 links in length. At another spot 55 links, there is the image of Aravan; 45 links to the east there is water pit and just to the east of it a fire pit. These are 43 links east to west and 20 links north to south. There is another space of 60 by 80 links required for some sacrifice, probably animal sacrifice. It is clear that, unless all these accessory regions are also provided, the defendants cannot carry on the Droupadi Ammen temple festivities in the way they want to. At first I thought that I might pour oil over the troubled waters by suggesting a compromise and restoring the Munsif's decree by consent, that is, by alloting a space of 2 cents and enclosing it in such a manner, that is, leaving an opening only towards the west so that the other villagers need not be disturbed by the festivities of the temple; and I made a suggestion to this effect to the Advocate-General and 1 reserved Judgment for nearly a fortnight expecting that his clients would come and state their willingness or otherwise in respect of this suggestion but I have heard nothing more about this matter.
Two or three points emerge clearly from the whole record. Any plot to be given for this new temple sought to be erected by the defendants must be a very small plot. It cannot take away a substantial slice out of the kalam poramboke. Secondly it ought not to be a source of nuisance or disturbance to other villagers. For that purpose it should be situated towards the western extremity and the opening of the temple should face the west and there should be no accessory regions attached to the temple for other subordinate festivities. Apparently the defendants cannot be satisfied with these conditions. In these circumstances I think the Subordinate Judge's decree is right and the second appeal is dismissed with costs of the plaintiffs-respondents.
N. R. R.Appeal dismissed.