Harbans Singh, J. - (1.) THE facts giving rise to this second appeal may briefly be stated as under: There is a pond (chhapar) towards the south of the abadi of village Khanur, tehsil and district Hoshiarpur and towards the south of this pond is a small area of a garden and beyond that garden is the phirni and the land and the abadi of village Jallowal. During the rainy season this pond overflows and the dispute between the residents of the two villages is with regard to the direction in which this surplus water should flow. It appears that in the year 1958 Sant Kewala Nand, who was the muntzim of the garden in which there is a smadh and which is towards the south of the pond referred to above, and three others of Khanur including the Gram Panchayat of Khanur filed a representative suit on their own behalf as well as on behalf of other residents of Khanur, against six residents of Jallowal and the Gram Panchayat of Jallowal seeking a mandatory injunction against the Defendants that they would remove the additional earth put by them over the phirni (circular road), varying from 2 feet to six feet, by which the flow of the water from the pond along the khal passing through the garden and then across the phirni and thereafter over the land belonging to mauza Jallowal had been obstructed. The allegations made in the plaint1 were that since time immemorial the overflow of the water of the pond was towards the south and the water passed through a khal which existed since long and then across the phirni towards mauza Jallowal and that after this phirni had been made during "the consolidation proceedings of village Jallowal, in order to stop this natural flow of the water, the phirni had been reinforced by putting additional earth, etc., with the result that this natural flow was obstructed. An application was made that the named Defendants be allowed to defend the suit for and on behalf of all other malkan of the village, list of whom, 295 in number, was attached as annexure 'A' to the plaint. This application was granted and a proclamation was made in the village. The three relevant issues in that case were Nos. 2, 3 and 4 as follows: (2) Whether the natural flow of the water from the pond has been from north to south through the channel ? (3) Whether the Plaintiffs have acquired a right of easement to pass water of the pond and the fields appurtenant thereto, i.e., B in Exhibit C. 1 towards village Jallowal through channel in Exhibit C. 1? (4) Whether the natural flow of the water of the fields shown as B in Exhibit C. 1 had been from north to south? The suit was dismissed by the trial Court but the appeal filed by the Plaintiffs was accepted on 6th of April, 1960, and the relevant issues were decided in their favour and a decree Was granted in favour of the Plaintiffs against the Defendants for mandatory injunction requiring the Defendants to remove the bund shown in red colour in the site plan, Exhibit C. 1, erected on the phirni and to restore the site underneath it to its original level, so as to allow the free flow of the water of the pond through the nullah in dispute and also of the rain -water of the fields marked B in the site plan, Exhibit C. 1, on to the fields situated towards south of the bund up to 6th of May, 1960, otherwise the Plaintiffs shall be entitled to get the same removed through execution of the decree on depositing necessary expenses, which shall be recoverable by them from the Defendants as costs in execution". It is conceded that an appeal filed by the Defendants against this appellate order was dismissed in limine by the High Court.
(2.) ON 1st of June, 1960, however, the suit, out of which the present appeal has arisen, was filed by the Plaintiffs, who were seven in number and were residents of Jallowal but were not land -owners in the village and are non -proprietors, being Harijans, against Sant Kewala Nand and the remaining persons who, were Plaintiffs in the earlier suit, seeking a perpetual injunction to the effect that the Defendants be restrained from allowing the water to flow from the pond in dispute situated in village Khanur towards Jallowal and that they should also be restrained from breaking any portion of the phirni shown red in the plan attached with the plaint and the Defendants should not take any steps to pass the water of the said pond towards the area of Jallowal. The allegations made were that the water of the pond, in fact, always used to flow towards the north of the pond and that some four years ago the Defendants dug a khal along the garden towards the south of the pond and towards the north of the land of Jallowal, with a view to pass the water towards Jallowal, and, in order to prevent this being done the Plaintiffs along with other inhabitants of village Jallowal strengthened the periphery in order to check the flow of water towards village Jallowal, that the Defendants assert that they had obtained a decree against the proprietors of village Jallowal restraining them from causing any obstruction in the flow of the water of the pond towards village Jallowal, that the Plaintiffs were not parties to the earlier suit and were not bound by the decree granted in that suit and that the flow of the water through village Jallowal was likely to damage the houses and huts belonging to the Plaintiffs and, consequently, they have brought this suit for permanent injunction. The suit was resisted, inter alia on the ground that the surplus water of the pond used to go through the khal in question towards village Jallowal from time immemorial, that natural flow of the water was from north to south and not vice versa, as alleged by the Plaintiffs, and that the previous litigation operated as res judicata. The two main points in the case were whether the previous judgment dated 6th of April, 1960, operated as res judicata and whether the Defendants have no right to flow water towards village Jallowal. The trial Court felt that the previous judgment did not operate as res judicata for the simple reason that the present Plaintiffs, who were residents of village Jallowal and, therefore, interested in the matter, were not parties to the previous suit and were not bound by it constructively either because their names were not in the list 'A' attached with the plaint. On merits, it was held that the natural flow of the water was from north to south and, consequently, the Defendants were entitled to the flow of the water over the garden and across the phirni towards mauza Jallowal. However, it was held that the Defendants were not entitled to increase the burden of the servient land of Jallowal by digging a channel and thus, increasing the flow of the water from the pond. The Defendants were, therefore, directed to fill up the channel to the level of the ground around it. In other respects, the suit of the Plaintiffs was dismissed. This order was confirmed by the lower appellate Court. Although it was specifically pleaded on behalf of the Defendants that the water always used to flow along the channel from time immemorial, this matter was not specifically put in issue, but it was assumed that the natural flow of water was along the entire land as such without there being any channel. On behalf of the Appellants it was urged that when the water overflowed from the pond from time immemorial the water naturally eroded the land along its path and a channel was bound to come into existence by such erosion and flow of water. However, it is not possible for me to go into this question because this was not put in issue.
(3.) THE learned Counsel for the Appellants, however, mainly argued the question of the previous judgment being res judicata. There can be no manner of doubt that the first suit was of a representative nature. All the residents of Khanur on one side and all the residents of village Jallowal on the other were interested in the matter in controversy. Explanation VI to Section 11 of the Code of Civil Procedure runs as follows: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. There can be no question that the Plaintiffs in the previous case (who are now Defendants) did litigate bona fide; that the litigation was in respect of a right claimed in common for themselves and others, namely, all the residents of Khanur. Similarly, there can be no manner of doubt that the Defendants in that case also litigated bona fide in respect of a right claimed in common for themselves and other residents of Jallowal. It is further clear that the provisions of Order 1, Rule 8, Code of Civil Procedure, were fully complied with. There is no difficulty in holding that not only the Gram Panchayat of Jallowal and six persons, who were actually made Defendants in the case and prosecuted the same, would be bound by the decision in that case but all the 295 persons, who were mentioned in the list 'A', would be bound by the same. The question for consideration, however, is whether the mere fact that the inames of the seven persons, who are now the Plaintiffs, were not included in list 'A' would have the effect of not making the previous judgment binding on them. The argument on behalf of the Respondents was that the intention of the Plaintiffs in the previous case was to implead only the right -holders of village Jallowal and the persons, who were made actual Defendants in the earlier case, were to represent themselves and other right -holders in the village and, consequently, they cannot be held to have represented the non -proprietors in the village. No doubt, the Word used in the plaint is 'malkan'. This may be taken to mean the land -owners, but, really speaking, the word 'malkan' has a broader significance and means any owner in the village and it was not disputed that in view of the recent legislation that had come into force much earlier than 1958, when the first suit was brought, the non -proprietors, who had raised any houses on the lands in the village, had become owners of the sites under the houses and they have always been the owners of the malba and entitled to reside in those houses from generation to generation. In the wider sense of the term, therefore, the word 'malkan' would include proprietors as well as the non -proprietors residing and owning houses or sites in the village. In any case, it is not denied that the proprietors as well as the non -proprietors were equally interested in the matter in controversy. The Plaintiffs in the present case have specifically pleaded that the level of the phirni was raised by the Plaintiffs and other residents of the village in order to stop the flow of the water in that direction. Consequently, when a general proclamation was made in the village about the previous suit having been filed, it was open to the present Plaintiffs to appear before the Court and move for being made parties to the suit. The learned Counsel for the Respondents, however, urged that under no circumstances a person whose name is not included in the list attached with the plaint can be held bound by a decree granted in a representative suit. No authority directly on the point has been cited by the learned Counsel on either side. Reliance was placed on behalf of the Respondents mainly on a Privy Council ruling in Kumaravelu v. Ramaswami : A.I.R. 1933 P.C. 183. In that case certain persons belonging to Vaniya caste went to a temple to perform a certain vow, and while engaged in performing it, Defendants (the servants of the temple) turned them out of the temple. They brought a suit in which they sought, inter alia, the recovery of a sum as exemplary damages from the Defendants. No permission of the Court was taken nor were any notices issued to persons of the same caste. In a subsequent suit the Madras High Court had held that the previous suit operated as res judicata having been filed in a representative capacity. Their Lordships of the Privy Council held that the previous suit was not a representative suit but was only a suit inter partes and the decision in the suit could not be res judicata under Section 11, explanation VI. This decision of the Privy Council, therefore, is based on altogether different facts. The head -note (c) of the report, however, runs as follows: Order 1, Rule 8 formulates an exception to the general principal that all persons interested in a suit shall be parties thereto. It is an enabling rule of convenience prescribing the conditions upon which such persons when not made parties to a suit may still be bound by the proceedings therein. For the rule to apply the absent persons must be numerous; they must have the same interest in the suit which, so far as it is representative, must be brought or prosecuted with the permission of the Court. On such permission being given it becomes the imperative duty of the Court to direct notice to be given to the absent parties in such of the ways prescribed as the Court in each case may require: while liberty is reserved to any represented person to apply to be made a party to the suit. The obtaining of the judicial permission and compliance with the succeeding orders as to notice are quite clearly the conditions on which the further proceedings in the suit become binding on persons other than those actually parties thereto and their privies. In the present case there can be no manner of doubt that the procedure laid down under Order 1, Rule 8, Code of Civil Procedure, has been fully complied with. The sole question, however, is whether, if the suit is, in fact representative in the sense that the matter in controversy is common to a class of persons and if some of that class are actually made Defendants and some others are given in the list attached with the plaint, to whom a general notice under Order 1, Rule 8 Code of Civil Procedure, is sent, and by inadvertence or otherwise the names of one or more of that class are omitted from such a list, the decision in the case would be binding on such person or persons whose name or names have been so omitted. In Bishen Singh v. Bakhshish Singh : A.I.R. 1936 Lah. 13, a Division Bench of the Lahore High Court had even gone to the extent that if the prior suit is of a representative nature and is prosecuted bona fide and no injury had been caused for the non -compliance of the provisions of Order 1, Rule 8, even then the findings in the previous suit barred a subsequent suit on the ground of res judicata. The relevant portion of head -note (b) is as follows: The test to be applied was whether the previous litigation was bona fide and whether any injury had resulted to the Plaintiffs in the subsequent suit on account of the omission to comply with the provision of Order 1, Rule 8 in the former suit. The previous litigation could not be said to be not bona fide nor had any injury resulted to the present Plaintiffs by omission to comply with Order 1, Rule 8. Hence findings in previous suit barred the subsequent suit on ground of res judicata. It may be mentioned here that the Privy Council case of Kamara Velu mentioned above was noted and distinguished in this case. Reference may also be made to Chuhar Singh v. Raghbir Singh : A.I.R. 1956 P&H 241. The head -note (b) runs as follows: In order to bring a suit within Explanation VI, the following conditions must be established: (1) that there must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit; (2) that the parties not expressly named in the suit must be interested in such right and (3) that the litigation must have been conducted bona fide on behalf of all parties interested. In plain words, Explanation VI of the section extends the meaning of the words "under whom they or any one of them claim.;