Wort, J.This appeal has had a somewhat long history having been to this Court on a former occasion and remanded to the trial Court for further consideration, the learned Judge who remanded the case having allowed the plaintiffs to amend their claim. The subject-matter of the suit was an osara, a nad and a charan which were said by the plaintiffs to be on a village pathway or lane and it is with regard to that that this action was brought. The trial Court after remand came to the conclusion that the action was incompetent. The learned Judge decided that Order 1, Rule 8, Civil P.C., was a bar to the suit. The learned Judge, on appeal, however reversed the decision of the trial Court. Now, I have to point out in the first place that the appeal is limited to one of the three objects to which I referred--the osara only. I am rather surprised that the appellants have so limited their case because I can see no possible answer to their claim even if they had appealed as regards all three: the osasa, the nad and the charan. But I repeat that they limit their claim to the osara only and there is no doubt that this osara was built (according to the plaintiffs) on what was either a village path or village lane. In that sense it was a public nuisance, and in my judgment the learned Judge in the Court below has entirely misdirected himself as regards the operation of Order 1, Rule 8, Civil P.C. It is contended by the learned advocate for the respondents that this is not a public nuisance within the meaning of Section 91 of the Code as it was not a public high way but was merely a village lane. The decision of Wilson, J. in Chuni Lal v. Ram Kishen Sahu (1888) 15 Cal 460, which was referred to in Kali Charan Naskar v. Ramkumar Sardar 17 CWN 73, says that there are three kinds of pathway: a public highway, a public path or lane over which a certain class of the community has a right, and a private way. The words in the decision in Chuni Lals case Chuni Lal v. Ram Kishen Sahu (1888) 15 Cal 460 are these:

Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as the freemen of a city, tenants of a manor or the inhabitants of a parish or village. Such rights commonly have their origin in custom.

2. Now, I have no hesitation in coming to the conclusion that a village lane is not of that class. It is of the class of a public highway; it has not its origin in custom; but a village pathway or lane has its origin in dedication. But I am assuming for the purpose of the argument in this case that it is of the second class. Now, it is not contended, and it certainly could not be, that this is a private way over which one or two or a very limited number of persons have rights. It is a lane or pathway in which the community of the village has a right, and therefore when the plaintiffs sue they are suing with regard to a matter over which numerous persons have the same interest. Now, Jenkins, C.J., in deciding Kali Charan Naskar v. Ramkumar Sardar 17 CWN 73 while referring to the judgment of Wilson, 3. in Chuni Lal v. Ram Kishen Sahu (1888) 15 Cal 460, did not point out that Wilson, J. made this observation:

First, where such a right is claimed (the learned Judge was referring to the right of the second class), it would seem that a member of the class entitled might, by taking the proper steps u/s 30, Civil P.C., obtain permission to sue on behalf of himself, and the other members of the class, anyone who disturbed or sought to disturb the right of way.

3. The case in which Wilson, J. was giving Judgment was the converse of the case which is before me. The person who was claiming the property, over which private, or semi-private or quasi private right existed, wanted to have it freed from that light. But it is to be noted, as I have just stated, that Wilson, J. indicated that the second class of right and actions with regard to the second class came u/s 30 of the former CPC which is now Order 1, Rule 8. I have never yet heard it contended that a person or more than one person having a right with regard to a right of way is at liberty to bring an action without notice to other persons interested with the leave of the Court under Order 1, Rule 8. That is one aspect of the case. But it is admitted in this case that the plaintiffs made no claim as regards the damages which they themselves suffered, and taking the other view of the case, namely that this was in a sense a public way belonging to the first class of the classes to which Wilson, J. referred, the infringement is a public nuisance and therefore an action could be brought only by observing the conditions laid down in Section 91, Civil P.C. So which, ever way one looks at it whether as a public highway or a village lane, some form of consent was necessary. And if we treat it as a lane or as a right of the second class, notice will be necessary and leave also will be necessary under Order 1, Rule 8 of the Code. The learned Judge in my opinion clearly misdirected himself on this question of law and his judgment was therefore vitiated. The appeal so far as the osara is concerned is allowed, the judgment of the appellate Court is reversed and the judgment of the trial Court as regards the osara is restored. The appellant is entitled to costs throughout. Leave to appeal is refused.