Jaggamoni Dasi v. Nilmoni Ghosal And Anr.

1. The plaintiff in this case makes the following allegations in her plaint: that her father, the late Gunga Narain Dutt, purchased certain brohmutter land on the bank of the river Hooghly, and during his lifetime built thereon certain mundirs, or temples, dedicated to Ishwar Siva, a bathing-ghat, and a room called gungajatri-ghur, and close thereto another ghat, called an antorjoli-ghat, about six feet in breadth; that, ever since the above ghat was built, sick persons, who have lost all hopes of recovery, have been brought to the aforesaid gungajatri-ghur, and, when on the point of death, have been removed to the said ghat, where the rites of antorjoli have been performed according to practice and the Hindu Shastras; that, the plaintiff is her father's executrix and the manager of his property; that the defendants have recently used the ghat for the purpose of landing goods from their boats; that, in consequence of their doing so, the sick persons brought to the river-side have been subjected to annoyance, and the object with which the ghat was built has been frustrated. The plaintiff, therefore, asks the Court to declare that the ghat was intended and dedicated for the purposes already mentioned; and further asks that the defendants be restrained from using such ghat for the purpose of loading and unloading articles of trade.

2. The Munsif gave the plaintiff a decree. There was then an appeal to the District Judge of the 24 Parganas, who was of opinion that the plaintiff is not entitled to maintain this suit. He says:

"It is quite clear that the plaintiff cannot claim exclusive possession, as the ghat is a public, intended for the celebration of the antorjoli, ceremony by dying persons of the Hindu persuasion. The proper course for the plaintiff to adopt is to bring to the notice of the Magistrate that the defendants, by carrying on the occupation of landing goods at a public ghat intended only for antorjoli purposes, have interfered with the comfort of those members of the community who are entitled to use the ghat for a particular purpose. The Magistrate then, if he concur in the finding on facts arrived at by the Munsif in his very careful judgment, will be in a position to take action against the defendants under the provisions of Section 521 of the Criminal Procedure Code."

3. It is now contended before us that the District Judge is in error in holding that the plaintiff is not entitled to maintain this suit; and it appears to us, for reasons which we are about to state, that this contention is correct. An application for an injunction must be made by a person who has a sufficient interest in the subject-matter, and the question then arises whether the plaintiff has a sufficient interest in the subject-matter of this suit. There is here no deed of endowment, and no evidence has been taken as to the exact purpose and object of this so-called endowment. The first question which suggests itself is whether the plaintiff's father, in building those temples, this antorjoli room, and this ghat, intended to give to the Hindu community a right of easement over the soil, or intended to transfer the ownership of the buildings as well as the ownership of the soil to such community. It by no means necessarily follows that, because the plaintiff's father erected this ghat and this antorjoli-room, and allowed the Hindu community to use them for the purposes set out in the plaint, he intended to divest himself of the ownership of the soil, &c. In the case of Lade v. Shepherd 2 Str. 1004 the plaintiff had built upon his own property a street which had ever since been used as a highway. The defendant, who had land contiguous thereto and separated therefrom only by a ditch, made a bridge over this ditch, the end of which bridge rested on the Highway. The plaintiff brought an action of trespass against the defendant, and it was insisted for the defendant that, by the plaintiff's making this street, there was a dedication of it to the public, and therefore, however, he might be liable to an indictment for nuisance, yet the plaintiff could not sue him as for a trespass on his private property. It was held that the dedication was to the public, so far as the public had occasion for it, which was only for a right of passage, but that it was never understood to be a transfer of the absolute property in the soil. So in the present case it might be said that there was a dedication to the public, so far as the public had occasion to use this ghat and this room for the purposes set out in the plaint; but that it never was understood to be a transfer of the absolute property in the soil. The case just cited has been referred to as an authority in the more recent case of St. Mary Newington v. Jacobs L.R. 7 Q.B. 47. In the case now before us there is no suggestion that any sevait was appointed; and this being so, the donor,--that is, the plaintiff's father,--would, according to Hindu law, be the sevait. If a sevait had been appointed it might be said that the ownership of the soil had been transferred to such sevait, but inasmuch as it does not appear that any sevait was appointed, it may well be reasonable to suppose that the ownership in the soil continued in the plaintiff's father. A case has been referred to the case of Baroda Prasad Mostafi v. Gora Chand Mostafi 3 B.L.R. A.C. 295; S.C. 12 W.R. 160; that was a suit for obstructing a public road. Peacock, C.J. said:

"The plaintiff sues defendant for obstructing a public road, without showing that he has sustained any particular inconvenience in consequence of that obstruction. If he can maintain this suit, any member of the public can do so, and the defendant may be ruined by innumerable actions by persons who have not sustained a farthing of damages. It is said that the plaintiff has a right to sue, because he was one of the persons who dedicated the road to the public; but it is not because he gave the road to the public that he is necessarily entitled to be the guardian of the public and to sue whenever there is any obstruction to the public which causes him no inconvenience beyond that which is sustained by every other member of the public."

The learned Chief Justice then proceeded to point out that there was a sufficient remedy provided by Section 308 and the following sections of the then Code of Criminal Procedure, Act XXV of 1861. Similar provisions are now to be found in Section 521 of the present Code of Criminal Procedure. Now we think that it is not possible in this case to say that this ghat and this room were public thoroughfares or public places within the meaning of Section 521. The dedication, if dedication there were, was not for the use of the whole public but for the use of a particular community, a particular portion of that public,--that is, persons professing the Hindu religion, and, in a more restricted way, for such members of that community, as are at the point of death. In this view it appears to us that the case before us is to be distinguished from the case of Baroda Prasad Mostafi v. Gora chand Moostafi 3 B.L.R. A.C. 295; S.C. 12 W.R. 160 and we may further observe that, in that case, no question was raised as to the ownership of the soil, and no reference was made to the class of cases of which Lade v. Shepherd 2 Str. 1004 may be taken to be an example. In this view it appears to us that the first question which arises in this case is whether the plaintiff's father, when he erected these rooms and this ghat, intended to grant to the Hindu community merely a right of easement over this property, or to transfer the ownership in the ghat and the soil to that community. If it be found that there was no intention in the donor to transfer the property in the soil, there can be no doubt that the plaintiff is entitled to maintain the present suit. But we think that even if it be found that there was a dedication, the effect of which was to transfer the ownership in the soil to the Hindu community, the plaintiff, as the representative of the donor, may well be entitled to maintain the present suit, there being apparently no sevait or trustee; and the object of the suit being, not to resume the grant, but to effectuate the intention of the grantor by preserving the property to the uses for which he presumably granted it.

4. We must, therefore, set aside the decree of the Court below and remand the case for decision upon the merits, with reference to the observations which we have made in this judgment. The costs of this appeal and of the Courts below will abide the ultimate result.