Basil Scott, C J

[1] In this case the plaintiffs sue on behalf of themselves and of other members of a religious community at Deshnur to have a declaration of their right of marching in procession with a car along a particular public road to certain temples, and for an injunction restraining the defendants from interfering with the plaintiffs.

[2] The suit arises out of an application made by members of the plaintiffs community to the District Magistrate under the local Police Rules for permission to hold the procession and to march with the car along the road. The Magistrate not being convinced of their legal right so to use the public road referred them to a civil Court for a declaration of that right.

[3] The members of another religious community who occupy land abutting upon the road at a point where the width of the road way is defined by two gates called Mulla Agashi and Durga Agashi, have put in a written statement denying the right of the plaintiffs to march along the road.

[4] In the first Court it was found that the road was a public road, but it was held the plaintiffs suit must fail as the road being public the plaintiffs could not sue unless special damage were shown and proved, and reference was made to Satku valad Kadir Sansare v. Ibrahim Aga valad Mirza Aga (1877) I. L.R. 2 Bom. 457 and Kazi Sujaudin v. Madhavdas (1893) I.L.R. 18 Bin. 693 in support of that decision. The suit was therefore dismissed and that decree was affirmed by the District Judge.

[5] In appeal before us it was contended for the respondents that the plaintiffs wished to conduct along the road a car which was too large to pass through what was properly speaking the public road as defined by the space between the two gates which we have already referred to. We, therefore, remanded the case for a finding as to whether the car of the plaintiffs could pass through the two gates. The lower Court found that it could pass. It was then contended by the respondents that the car which had been submitted for measurement to the lower Court on this issue was not the car which the plaintiffs had originally wished to conduct in procession. We then referred that question to the lower Court and it was held that the car was the same car. The question, therefore, is whether the plaintiffs have a right to conduct in religious procession a car which is not too wide to pass along the public road.

[6] There has been no obstruction of their right but the defendants in consequence of the course taken by the District Magistrate have denied the right claimed by the plaintiffs.

[7] The suit is not for the removal of a public nuisance but for a declaration of the right of an individual community to use the public road. It is, therefore, a suit which raises the same question as that which was the subject of the decision in Sadgopachariar v. Rama Rao (1902) I.L.R. 26 Mad 376, in which the Court held that the correct view is that every member of the public and every sect has a right to use the public streets in a lawful manner and it lies on those who would restrain him or it to show some law or custom having the force of law abrogating the privilege. That case was appealed to the Privy Council and their Lordships of the Judicial Committee held that the decision of the lower Court was perfectly right that all members of the public have equal rights in public roads.