Bhandari, J - (1.) THIS is a civil second appeal on behalf of the defendants in a suit for injunction. The plaintiff-respondents and the defendant-appellants are residents of village Janaokhari (Tehsil Rajgarh ). To the east of this place there is a johar (tank) known as 'gogana' tank. The plaintiffs' case is that this tank is being used by the public. In the Settlement Record it is shown as Khasra No. 117 and in the plan filed with the plaint, it is denoted by the letter 'j'. The plaintiffs' case further is that Plaintiff No. 1 had his field - Khasra Nos. 145/50 adjacent to the village, and a village pathway passed from the village through his field and through the fields of other villagers and ended near the aforesaid tank. In the plan this pathway is shown A to B. The lower portion of this pathway is adjacent to the field of one of the defendants. The plaintiffs' case is that this pathway was being utilized by the villagers of the village Janaokhari for taking their cattle to the aforesaid tank and for bringing water to the village from the tank. On or about 8th of August 1956 the defendants raised a wall near the point 'c' in the plan and then obstructed the pathway. Thus, the plaintiff and the villagers of the aforesaid village could not traverse the whole pathway so as to reach the aforesaid tank at the Point 'b', but could only go from 'a' to 'c'. THIS amounted, according to the plaintiffs, to a public nuisance. The plaintiffs had filed an application in Tehsil Rajgarh to remove the obstruction but they were ordered to take proceedings in a court of law. The plaintiffs expressly mentioned in the plaint that their rights were specially infringed by the closure of the pathway in this manner and that the rights of the other villagers were also infringed. They applied to the Collector, Churu for granting permission to file a suit under sec. 91 (1) C. P. C. , which according to them, was granted on the 6th of August 1956. They, therefore, filed the present suit praying for a declaration that the aforesaid pathway was a village pathway for the plaintiffs' and the aforesaid village and the defendants had no right to close it. They also prayed that the defendants be restrained from creating any obstruction in that pathway and the obstruction put by them should be ordered to be removed. The defendants contested the suit and denied the allegations of the plaintiffs. According to them, there was another pathway passing through the field of Mauji Jat Asaram Chowdhry and Ladu Singh Rajput Plaintiff No. 1 and this was the pathway recorded in the revenue papers. It was also pleaded that the plaintiffs did not suffer any special damage and they had filed the suit with the consent of the Advocate General as required under sec. 91 C. P. C. and therefore the suit was liable to be dismissed. The trial court held that the plaintiffs have acquired a right of easement to the pathway A to B by prescription, while the lower appellate court has held that the pathway from A to B was a customary village pathway. Both the lower courts decided against the defendants on the plea that the suit was not maintainable, rejecting it on the ground that sec. 91 was not applicable as the pathway in dispute was not a public thoroughfare. There was an argument before it that the plaintiffs have themselves called it a public nuisance in their plaint and they cannot deny that it was a public thoroughfare but it controverted this argument by pointing out that the substance of the case of the plaintiffs was that it was a village pathway which word was used in the plaint in Paragraphs 9-10 and also in the paragraph relating to reliefs.
(2.) IN this second appeal, learned counsel for appellants has mainly argued that the suit was not maintainable as it was filed without the consent of the Advocate General as required by sec. 91 of the Civil Procedure Code. It has been mentioned in the plaint that the plaintiffs had obtained the sanction of the Collector who has also been empowered to grant sanction under sec. 91 C. P. C. by virtue of sec. 93 but the order of the Collector is very dubious inasmuch as he has written the words 'case may be registered', on the application filed by the plaintiffs for grant of sanction and it cannot be said that they had obtained the sanction of the requisite authority under sec. 91 C. P. C. It may, therefore, be taken that the suit has been filed without the consent of the Advocate-General or any other authority mentioned in sec. 93 C. P. C. It may also be mentioned that though the plaintiffs have used the words "aam-rasta" in the plaint, but they have clarified this by describing it as a village pathway. It may also be mentioned that the plaintiffs had definitely mentioned in the plaint that their personal right to take their cattle through this village pathway to the tank and to bring water from the tank is infringed by the closing of the pathway though they have also mentioned that such right is enjoyed by the other villagers and that the rights of the other villagers were also infringed. It has been argued that the plaintiffs have nowhere stated in the plaint how they suffered any special damage on account of the closure of the pathway. There is no force in this contention. The plaintiffs have clearly mentioned that they were the residents of village Janaokhara and it has also been mentioned that plaintiff No. 1 had his field adjacent to that village. It is also mentioned in paragraph No. 3 that plaintiff No. J used to take his cattle to the tank through this pathway and used to bring water also from the tank through the same. Thus there are clear allegations that at least plaintiff No. 1 suffered special damage. The argument of the learned counsel for the appellants, however, is that similar rights according to the plaintiffs were enjoyed by the other villagers and the closure of the pathway by the defendants constituted a public nuisance for which the plaintiffs and the other villagers had a common grievance and for the removal of such public nuisance, the suit could be brought only under sec. 91 C. P. C. with the consent of the Advocate General, and as there was no such consent, the suit was barred by the provisions of sec. 91 C. P. C. which runs, as follows - "91. (1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independent of its provisions". Sec. 91 C. P. C. has been a subject matter of judicial discussion in a number of cases in Courts in India. In this Court, this judicial controversy is noticed by Modi, J. in Mool Chand vs. Chhoga & Co. (l ). The learned Judge did not express any definite view whether the obstruction to a village pathway amounted to public nuisance or not but his judgment shows that he was inclined to take the view that it amounts to public nuisance. In the case before me the plaintiffs have themselves described it as a public nuisance and it would be better for me to proceed on the assumption that it is a public nuisance. The question, however, remains whether even when there is a case of public nuisance it is always necessary for the plaintiff's to obtain the consent of the Advocate General before filing the suit. In any discussion relating to the provisions of sec. 91 C. P. C. we must take note of the warning given by their Lordships of the Privy Council in Saiyid Mansur vs. Saiyid Muhammad Zaman (2) that - "the distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India. " The purpose of sec. 91 may be to avoid multiplicity of suits relating to public nuisance. In my humble opinion the purpose may be more fundamental inasmuch as two or more persons who may be not directly concerned with the public nuisance which is involved in the case but who are public spirited enough to see that it is removed may come in a court of law for the removal of the nuisance with the previous consent of the Advocate General. If such two or more persons come to a court of law, they can come only by virtue of sub-sec. (1) of sec. 91, otherwise they have no independent cause of action. In this sense, sub-sec. (1) creates a right to maintain the suit in the two persons as observed by Meredith, J. in Choudhary Bibhuti Narayan Singh vs. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur (3): "it does confer a new right, and in express terms, namely the right with the consent of the Advocate General to sue for the removal of a public nuisance without proof of special damage. That was a right which could not exist independently of that section. " (p. 462) But this does not mean that sec. 91 takes away the right of any person if he has any cause of action to maintain a suit without the consent of the Advocate General. Sub-sec. (2) of sec. 91 C. P. C. makes this position very clear. I may in this connection refer to the following passage in the Journal of the Indian Law Institute, New Delhi, January, 1959 Issue, in the Article 'legal-Interest required to challenge the validity of administrative action : A Preliminary Survey : by A. T. Markose, Director of Research, Indian Law Institute p. 273 "before reviewing some of the decisions relating to this subject it is necessary to mention certain provisions of the Civil Procedure Code of India that give certain powers to the Advocate General. The general position to-day is that because of the provisions of sec. 91 and 92 of the Civil Procedure Code except in the case of a right of way over public paths (which as Mukher-jee, J. pointed out was not a private right strictly so palled) no private person can file a suit for the removal of a public nuisance without showing special damage. We have seen that in Italy among the matters allowed to be agitated by the azione populari is one in the matter of charitable institutions. Any person of a district can sue to set right illegalities that have taken place in a charitable foundation of that district. In India, that kind of function is now considered to be the exclusive duty of the Advocate General of the State concerned. The Advocate-General has to sue, or give in writing consent to two or more persons to sue for declaration and an injunction in cases of public nuisance under sub-sec. (1) of sec 91 of the C. P. C. At the same time sub-sec. (2) of sec. 91 C. P. C. preserves any right of suit which may exist independently of the above mentioned section. Since any right of suit that may exist independently of sec. 91 C. P. C. is preserved we have to see whether, before the Civil Procedure Code, members of the public as such were allowed to file such suits " The crx of the matter is to examine whether any person has a cause of action for infringement of his right under what may be called the law of the land. If he has, he cannot be debarred from filing the suit under sec. 91 sub-sec. (1 ). Ordinarily a man whose right is infringed has a cause of action to go to a court of law for the enforcement of the remedy provided in law. In a case of obstruction of a pathway, be it a public nuisance or not, a person may show that such obstruction should be removed as he lives in proximity where obstruction has been caused and his right to go by a particular way to his place of residence or to his field is affected and would operate so injuriously on him as to entitle him to come to a court of law praying for its removal independently of the provisions of sec. 91 (1) C. P. C. The right to take out procession was safeguarded by their Lordships of the Privy Council in Saiyid Manzur Hassan's case (2 ). There is ample authority in the following cases that in the case of a village pathway, a resident of a village may enforce his right to pass through that pathway without having recourse to sec. 91. Dalgobinda Mahatha Vs. Kathu Mahatha (4), S. K. Murugesa Mudaly Vs. Baruda Arunegiri Mudaly (5), Faqir Chand Vs. Sooraj Singh (6), Somu Nogireddy Vs. Courugari Lingareddi (7), Bandaru Venkayya vs. Lakshmi Narasayya (8) and Thangavel Nadir vs. Sudalaimada Nadar (9 ). Even in the case of public thoroughfare a person in the immediate neighbourhood and entitled to use a public thoroughfare may be taken to have a special cause of action to maintain] the suit for the removal of the obstruction. (See (1) Dasrath Mahto Vs. Narain Mahto (10) and Pahlad Maharaj Vs. Gauri Dutt Marwari (11 ). The essence of the matter is whether the individual who has brought the suit has a cause of action to maintain it. If he has, his case falls under sub-sec. (2) of sec. 9t of the Code of Civil Procedure and he is not bringing the suit because of the right given under sub-sec. (1) of sec. 91 and his suit is maintainable. In this view of the matter, the plaintiffs (or at least plaintiff No. 1) have/has clearly the right to file the suit without the consent of the Advocate General under sub-sec. (l) or the Collector. The prayer in the Suit is couched in the language showing that plaintiffs be granted a right over the village pathway AB not only for themselves but for other villagers of village Janaokhari also and the relief granted is also with respect to other villagers. The plaintiffs cannot be granted any relief for other villagers. It is, therefore, necessary to modify the decree passed in favour of the plaintiffs to that extent and in the decree the words 'and the other villagers of village Janaokhari' are deleted. With this modification, the Appeal fails and is dismissed with costs. . ;