*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY +S.A.No.621 of 2010 %08.09.2010 #Shaik Shamiunnisa. ..appellant. Vs. $Narravula Obulamma and others. ..Respondents. !Counsel for the appellant : Sri P.Gopal Das ^Counsel for the Respondents : Sri V.R.Reddy Kovvuri <Gist : >Head Note: ?Cases Referred: [1] AIR 1987 Madras 187 2 2005 (5) ALD 101 3 2005 (3) ALD 804 4 AIR 1965 SC 1147 5 AIR 1941 PATNA 249 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY S.A.No.621 of 2010 JUDGMENT: The appellant filed O.S.No.41 of 2006 in the Court of Senior Civil Judge, Rayachoty, against the respondents, for the relief of declaration that the suit schedule property is a public rasta in Bosenagar, Rayachoty; for mandatory injunction, for removal of existing structures and for a consequential relief of injunction to restrain respondent No.1 and her son- respondent No.2 from interfering with the use of the same. She pleaded that the lane, shown as ABCDEF in the plaint plan, is a public road and still respondents 1 and 2 are claiming it to be their exclusive passage and preventing the appellant and other men in the locality from using it. It was alleged that the original owner of the land, by name Narravula Chendrayudu Naidu, carved out plots, by leaving roads for ingress and egress, and the residents of the locality have purchased such plots and have constructed houses. According to her, the suit lane is an access for the residents of the locality to the bus stand and there was no basis for the respondents in preventing the use thereof. She pleaded that though she alone figured as plaintiff, the suit is filed for and on behalf of the residents of Bosenagar, Rayachoty. On behalf of respondents 1 and 2, a written statement was filed. They raised objection, as to the maintainability of the suit, on the ground that though it is filed in representative capacity, the permission of the Court was not obtained. They denied the assertions made by the appellant that she owns a plot in the locality. They pleaded that the suit schedule property exclusively belongs to them and it is not at all a public lane. The trial Court decreed the suit through judgment, dated 01.09.2008. Respondents 1 and 2 filed A.S.No.78 of 2008 in the Court of V Additional District Judge, Rayachoty. The appeal was allowed through judgment, dated 16.01.2010. Hence, this Second Appeal. Sri P.Gopal Das, learned counsel for the appellant, submits that the view taken by the lower Appellate Court, referable to the maintainability of the suit, is opposed to settled principles of law. He contends that though the relief is claimed in the interests of all the persons of the locality, being one of the users of the lane, the appellant is entitled to file the suit in her individual capacity. Learned counsel submits that the respondents failed to establish that the suit schedule property exclusively belongs to them and that was sufficient ground for the suit being decreed. Placing reliance upon several precedents, learned counsel submits that there was no basis for the lower Appellate Court in reversing the decree passed by the trial Court. Learned counsel for the respondents, on the other hand, submits that in clear and categorical terms, the appellant stated that she filed the suit for herself and on behalf of the residents of the locality, and in that view of the matter, it was obligatory on her part to obtain permission under Rule 8 of Order I C.P.C., and admittedly, no such permission was obtained. He contends that though the trial Court referred to this aspect, it has taken an incorrect view by treating the suit as having been filed in the individual capacity of the appellant. Learned counsel submits that the respondents have established their title to the property by filing the relevant sale deeds and the lower Appellate Court has taken correct view of the matter. The suit was filed for the relief of declaration, perpetual injunction and mandatory injunction. The appellant did not seek any individual relief for herself and the effort was only to ensure that the suit schedule property be declared and permitted to be used as public lane. The respondents, on the other hand, asserted their exclusive title over the property and have raised objection, as to the very maintainability of the suit. The trial Court framed the following issues for its consideration: 1. “Whether the plaintiff is entitled for declaration as prayed for? 2. Whether the plaintiff is entitled to permanent injunction as prayed for? 3. Whether the plaintiff is entitled to mandatory injunction as prayed for?” On behalf of the appellant, PWs.1 to 5 were examined and Exs.A.1 to A.10 were filed. On behalf of respondents, DWs.1 to 4 were examined and Exs.B.1 to B.6 were filed. The Commissioner appointed by the trial Court was examined as CW.1 and the record maintained by him was taken as Exs.C.1 to C.5. In ‘X’ series, one document, being the sale deed, dated 13.09.1971, was taken on record. The suit was decreed and the respondents filed an appeal. The lower Appellate Court framed the following points for its consideration: 1. “Whether the suit as filed by the plaintiff can be taken as the suit filed in representative capacity under Order I Rule 8 of C.P.C.? 2. Whether the plaintiff is entitled for declaration as prayed for? 3. Whether the plaintiff is entitled for permanent injunction as prayed for? 4. Whether the plaintiff is entitled for mandatory injunction as prayed for? 5. Whether there are any sufficient grounds to set aside the decree and judgment dt:01.09.2008 passed in O.S.No.41 of 2006 on the file of Senior Civil Judge’s Court, Rayachoty as prayed for?” The appeal was allowed ultimately. The lower Appellate Court took the view that the suit was not maintainable, since permission contemplated under Rule 8 of Order I C.P.C., was not procured by the appellant. The provision reads as under: “8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit, - (a) One or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) The Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended under sub-rule (1), may apply to the Court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) 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.” The relief claimed by the appellant was not personal in nature and it was for the benefit of herself and others. It is not a case where the relief in respect of usage of public lane was claimed by the appellant alone. In the plaint itself, she stated that she filed the suit for herself and on behalf of the residents of the Bosenagar locality. Therefore, it became necessary for the appellant to comply with Rule 8. The trial Court did bestow its attention to this question, though no specific issue was framed on this. However, it observed that the suit can be treated as having been filed in the individual capacity, of the appellant. The principle, which is to the effect that Rule 8 of Order I C.P.C., does not debar a person, within the community from maintaining a suit in his own right; was invoked. However, the facts pleaded by the appellant are different. She did not file the suit in her own right, but it was, as proclaimed by her, for the benefit of the residents of the locality. The lower Appellate Court framed a specific point on this and has undertaken extensive discussion. Reference was made to the judgment of the Madras High Court in Assistant Commissioner, Hindu Religious and Charitable Endowment, Salem and others v. Nattamai K.S.Ellappa Mudaliar and others[1] and maintained a clear distinction between the suit filed for the rights of the community, on the one hand, and a member of the community in his own right, on the other. Learned counsel for the appellant has placed reliance upon the judgment of this Court in Yelugula Subba Rao v. Perumalla Sri Ramakrishna Murthy[2], wherein it was held that no individual can claim rights upon roads or road margins, and a person, who is a user of the road, cannot be obstructed. There is no quarrel with the proposition. In the instant case also, had the respondents encroached any public lane, or obstructed the use of lane, they can have certainly be injuncted in a properly constituted suit. The basic question here is as to whether the suit filed by the appellant was in order, with reference to Rule 8 of Order I C.P.C. The judgment in Thudimella Lakshminarayana and another v. Thummala Narasaiah Naidu and another[3], is to the same effect and there also the issue was not about the maintainability of the suit. The judgment of the Supreme Court in Municipal Board, Manglaur v. Mahadeoji Maharaj[4], is also not an authority as to the applicability of Rule 8 of Order I C.P.C. In Dasrath Mahto v. Narain Mahto[5], a Division Bench of the Patna High Court laid down that in a suit filed under Rule 8 of Order I C.P.C. , the plaintiff will not have to prove any special damage. The facts of that case suggest that permission as required under Rule 8 of Order I was in fact obtained. Once the plaintiff stated that the suit is filed for the benefit of the entire community, she alone cannot champion the cause and make the respondents to defend themselves. The lower Appellate Court has taken the correct view of the matter. A serious error was committed by the trial Court. Keeping aside the procedural defect in the suit, it may be noted that the relief claimed in it was to the effect that the suit lane is a public rasta. Not only the relief of perpetual injunction, but also the one of mandatory injunction requiring the respondents to remove certain structures was claimed. It was therefore, evident that the rasta was not capable of being used in the existing form. The lay out, if any, sanctioned by a statutory authority to show that the suit schedule property was a public lane was not filed. The discussion undertaken by the trial Court however slipped into the one of easementary rights of the appellant. The observation reads as under: “…Because the case of the plaintiffs is not based upon mere fact of possession and enjoyment of the suit schedule property and it is based upon the rules of easement by prescription as observed in respect of the earlier issue for infringement of easementary right of the plaintiff to use the suit schedule property as rasta she is very much entitled for permanent injunction even against the true owner because the title of the true owner itself is burdened with such easementary right. Therefore, the defendants are liable to be prevented by way of permanent injunction as prayed for and the plaintiff established her case to grant such relief and this issue is answered accordingly that the plaintiff is entitled for the permanent injunction as prayed for.” This is totally untenable and clearly outside the scope of the suit. The claim based on easementary right stands on a different footing and altogether different connotations arise. Further, the trial Court has proceeded to pronounce upon the title of the respondents, by referring to certain documents. The whole approach was untenable. The lower Appellate Court has rectified the serious mistakes committed by the trial Court. Therefore, the Second Appeal is dismissed. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY, J Dated:08.09.2010 L.R. copy to be marked. GJ [1] AIR 1987 Madras 187 [2] 2005 (5) ALD 101 [3] 2005 (3) ALD 804 [4] AIR 1965 SC 1147 [5] AIR 1941 PATNA 249