Linsam Ramaseshayya vs Myneni Ramayya and Others

Viswanath Sastri, J.—The second Defendant is the Appellant in this Second Appeal. The suit was hied for a declaration that a tank comprised in R. S. No. 97/1 measuring 4 acres 14 cents in the village of Kotha Tummalapalli was common to ah the villagers and for an injunction restraining Defendants 2 to 4 from obstructing the Plaintiff''s user of the tank water for himself, his men and cattle and from diverting the tank water to their seed bed lands for the purpose of raising seedling thereon, The suit was dismissed by the trial Court, and substantially decreed by the appellate Court, The sole Plaintiff is the contesting Respondent in this Second Appeal. On behalf of the Appellant, it is urged that the suit should have been dismissed because (1) the tank is the private family property of Defendants 2 and 3; (2) the suit has not been instituted with the sanction of the Advocate-General u/s 92 CPC Code; and (31 the suit has not been instituted in conformity with the procedure, prescribed by Order 1, Rule 8, Code of Civil Procedure.

On the first point, the lower Appellate Court has found that the tank in question is not the private property of the family of Defendants 2 and 3 but is a public tank which the residents of the village and passers-by are entitled to use for drinking purposes and also for bathing and washing, if not objected to by the villagers. The donor of the site of the tank examined as P. W. 1 stated that she gave the site for the diK Eing of a tank for the use of all the villagers. D. W. 6, the adopter son of P. W. 1 who would not be entitled to the site, if it had not been gifted for a proper charitable purpose by the widow, also supports the Plaintiff''s case that the tank is "Dharma cheruvu". The family of Defendants 2 and 3 was once the most prominent and affluent family in the village and Lingam and Ramaseshayya the then manager of the family had the tank constructed In 1908 with the labour and money contributions of the villagers.

Prom 1930 to 1944 the family of Defendants 2 and 3 had left the village on account of financial embarrassments and during this period l\\ W. S the natural brother of the 1st Defendant managed the tank and the 1st Defendant paid the kist on R, S. No. 97/1. The case of Defendants 2 and 3 that the site of the tank was purchased by Lingam Ramaseshayya from P. W. 1 is not proved by any documentary evidence. The witnesses examined on behalf of the Plaintiff speak: of the construction of the tank with the labour and funds of the Villagers under the supervision or management of Lingan Ramaseshayya. I accept the finding of the lower Appellate Court that the tank belongs in common to all the villagers and Is not the personal or private property of Defendants. The Plaintiff, as a resident of the village, is therefore entitled to use the tank water for all legitimate purposes.

On the second point, I am of the''opinion that the suit is not bad for want of sanction of the Advocate-General ''under Section 92 of the Code of Civil Procedure. Section 92 of the CPC does not apply unlc.-s the relief sought in the suit is one or other of the reliefs specified In the section. The words "further or other relief" in S. 92 (h) within which the Appellant sought to bring this suit, mean relief of the sane nature as those contemplated in 3. 92 (a) to (g). See Abdur Rahim v, Abu Mahommed I''.arkat Ali, ILR 55 Cal 519 : AIR- 1928 IV 10) (A). Section 92, Code of Civil Procedure, postulates the existence of a trust of a public charitable nature and deals with the reliefs to which a party as representing the public, may be entitled on that basis.

A suit for a declaration that certain property belongs to a public charity can he brought by persons Interested in the charity without the consent of the Advocate-General. ILR 515 Cal 519 : AIR 1928 PC 16) (A), Jimialuddin v. Mnjtaba llussain, ILR 25 All 631 at p. 635 CB), Loke Nath Mukerjee and Others Vs. Abani Nath Mukherjee and Others, , Subramanya Iyer v, Maya Kone. 1939 2 MLJ 920 : AIR 1940 Mad 81) (D). Section 92 has no application where the suit is brought not to vindicate or establish the right of the public in respect of a public trust but to remedy the infringement of an individual right or vindicate a personal or private right of the Plaintiff. Tirumalai Devasthanam v. krish-nawa ILR (1943) Mad 619 : AIR 1943 Mad 460) (PB) (E), Jawaher v. Akbar ain ILR 7 All 178 (PB) (P). Here the Plaintiff, as one of the villagers entitled to use the common village tank, seeks to prevent an unlawful interference with his right by the Defendants. The suit is therefore not bad for want of sanction u/s 92, CPC Code.

On the third point, I am of opinion that if the suit is one for the vindication of the personal or private right of individuals or for preventing an infringement of such right and is substantially one in respect of a. wrong done to the Plaintiff individually the suit is not a representative one in true sense of the term. To bring a case within the provisions of Order 1, Rule 8, CPC Code, all the members of a class should have a common interest in a subject-matter and a common grievance and the relief sought should in its nature, be beneficial to all. The Plaintiff''s case is that he has been prevented from using the tank by Defendants 2 to 5. To establish his right to use the tank he alleges and proves that the tank is common to all the villagers of whom he is one.

A declaration that the tank is common to all til villagers is only incidental to the main relief injunction.

This is not a public tank in the sense the it has been dedicated to the public at large and the complaint is not about a public nuisance. If is- a village tank constructed only for the bene of the village community or resident of the village The Plaintiff, as a permanent resident of thj village, has an interest in its proper maintenance and in the preventing the diminution of the water in the tank by its unlawful diversion bl the Defendants for that cultivation purpose Such improper diversion of water is bound cause damage or injury to the villagers who have to use the tank for drinking or bathing purpose during summer time. It is true that other villagers might also be similarly interested.

Order l, Rule 3, Code of Civil Procedure, is a enabling provision and does not compel any on, to represent many if, by himself, he has a righ of suit. Tlie rule does not vest a right of sui in a person and if he, by himself, has no righ1 to sue, he cannot proceed to sue on behalf other by Invoking the aid of Order 1, Rule 8, CPC At the samp time, Order 1, Rule 8, CPC Cede, does not debar a member of the village community from maintaining a suit in his own right in respect of a wrong done to him though the act complained of may also be injurious tc some other villagers.

There are a few considerations to which I may refer in this connection. Order 1, Rule 8, CPC Code, has been framed in order save time and expense, to ensure a single comprehensive trial of questions in which a large body of persons are'' interested and to avoid har assment to parties by a multiplicity of suits.t Where there are numerous persons having a conmon Interest who would sue or be sued together, f a suit by or against some of them will not be a representative suit and the decision rendered there in will not be res judicata against those Persons who are not on the record as parties unless the requirements of Order 1, Rule 8, CPC have been observed Kumaravelu v. Rama-1 sami, ILR 56 Mad 657 : AIR 1933 FC 183) (G). I Where the relief sought is discretionary, the Court might refuse such relief if it has reason to think that the suit is not bona fide and injury complained of is trivial. This consideration docs- t not apply to the present case.

For these reasons, the Second Appeal '' fails and is dismissed with costs. No leave