Decided on February 01,1952



Venkatarama Ayyar, J. - (1.) This Second appeal raises a question of some novelty and importance about the rights of members of the public to take funeral procession through public streets and pathways. The plaintiffs are the appellants. They are residents of a hamlet called Puthukudy Kallur which is attached to the village of Kodaganallur. The defendants are residents of this latter village. To the west of the hamlet of Puthukudy Kallur there is a road running north to south, marked Road No. 9-G in the plaint plan, Ex. P. 1. At a point in the said road marked X in Ex. P. 1 there is branch road running east and that is marked X. Y. Z. in the plan. This road passes through the streets in the village of Kodaganallur between the points X-1 to E E X6 and at the point Y it turns southwards and leads on to the cremation ground on the banks of the river Tamraparni marked "Z" in the plan. The plaintiffs allege that the main road 9-G and the branch road X, Y, Z, are public roads belonging to the District Board, that they are entitled to use these roads for carrying the dead for cremation at the place "Z" and that the defendants are unlawfully obstructing the plaintiffs in exercise of these rights. They accordingly pray for a declaration that they are entitled to use these roads "for all purpose inclusive of taking or leading funeral processions" and for an injunction restraining 'he defendants from interfering with such user by the plaintiffs. The suit is laid in a representative capacity on behalf of the villagers of Pudukudy Kallur and the defendants are sued as representing the villagers of Kodaganallur.
(2.) The defendants admit that the road, 9-G is a public path-way but they contend that a portion of the branch road marked X and X-1 is a private road belonging to the owners of adjacent lands and that, therefore, the plaintiffs are not entitled to pass along that portion of the road. They also contend that even if the road is a public pathway the plaintiffs have no right in law to take funeral processions through it as that was not the customary route. Lastly it is argued that the suit is barred under Section 91, C. P. C. The learned District Munsif rejected all these contentions. He held that X. X-1 was a public road; that the plaintiffs as members of the public were entitled to use public pathways for funeral processions and that Section 91, C. P. C. was no bar to the maintainability of the suit. The suit was accordingly decreed. On appeal the learned Subordinate Judge reversed this decree and dismissed the suit. He agreed with the District Munsif that the road X. X-1 was a public one and that the action was not barred by Section 91, C. P. C. but he held that the right to use public roads for funeral processions was not an ordinary user and that the plaintiffs could not claim it as a matter of right. In the result he allowed the appeal and dismissed the suit. The plaintiffs prefer this second appeal.
(3.) In view of the concurrent findings of the courts below that the road X. Y. Z. is a public pathway the only question that arises for determination is whether the plaintiffs as members of the public are entitled to take funeral processions through the road, X. Y. Z. The right of members of the public to take processions along a public road or street has been the subject of judicial consideration for over a century. At one time, it was considered that though a person is entitled to pass and re-pass on public highways, he had no right to take processions as that was an extraordinary user and could be justified only by custom or special grant. Thus in an early case reported in "Decisions of the Sadar Adalat" in -- 'Sambalinga Moorthy v. Vembarry Govinda Chetti'. (1856-58) MSD 219 (A) the civil Judge of Salem held that a Guru had no right to be carried in a palanquin in procession through the streets of Salem merely on the ground that they were public streets and that such a right could be supported only if there was a "Sannad or patent granting it." This was reversed by the Court of Sadar Adalat on the ground that the right to pass in procession in the streets was "a natural right inherent in every subject of the State not requiring as the civil judge appears to suppose to be created by a sannad or patent." In -- 'Parthasaradi v. Chinna Krishnan', 5 Mad 304 (B) it was held by Sir Charles A. Turner C. J. and Muthuswami Aiyar J. that "persons of all sects are entitled to conduct religious processions through public street so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstruction of the thoroughfare or breaches of the public peace." The leading case on the subject is the one reported in -- 'Sadagopacharjar v. Rama Rao', 26 Mad 376 (C). Therein it was held by a Bench of this Court that "the right to conduct religious processions in the public streets is a right inherent in every person, provided he does not thereby invade the rights of property enjoyed by others, or cause a public nuisance or interfere with the ordinary use of the streets by the public, and subject to such directions or prohibitions as may be issued by the Magistrate to prevent obstructions to the thoroughfare or breaches of the public peace." On appeal this decision was affirmed by the Privy Council in -- 'Sadagopachariar v. Krishnamurthi Rao', 30 Mad 185 (PC) (D). The question arose again for decision by the Privy Council in the case reported in -- 'Manzur Hassan v. Muhammad Zaman', AIR 1925 PC 36 (E). There the dispute was between two sects of Muhamadans, the Shias and Sunnis as to their respective rights in taking processions during the Muharam. It was held that members of a religious body have the right to conduct religious processions with appropriate observances along the highways. In - 'Martin and Co. v. Faiyaz Husain', AIR 1944 PC 33 (F) the Privy Council again observed: "The plaintiffs have the right as members of the public to take part in religious processions in the streets; subject of course to the rights of other members of the public to pass and re-pass along the same streets and subject to the powers of the appropriate authorities of controlling traffic and preventing disturbance. This right as a normal user of the highway does not originate in custom." This view had been repeatedly laid down in several decisions of the Madras High Court. Vide -- 'Mannada Mudali v. Nallayya Goundan', 32 Mad 527 (G); -- 'Andi Moopan v. Muthu Virama Reddi', AIR 1916 Mad 593 (H) and -- 'Pakkiri Taragan v. Subbayan Samban', AIR 1919 Mad 674 (FB) (I). The law is thus well settled that it is the inherent right of every member of the public to take out a procession along public streets and pathways so long as the rights of others to use the public pathways similarly are not infringed.;

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