Arthur Wilson, J.

1. We must take the facts before us to be that the plaintiffis the owner of a piece of land, that the substantial defendant alleges thatthat piece of land forms part of a public highway, that he took proceedingsbefore the Magistrate under Section 133 of the Criminal Procedure Code againstthe plaintiff for obstruction to the alleged highway, and that an orderabsolute was made by the Magistrate under Section 137 directing the removal ofthe obstruction. The present suit has been brought practically for the purposeof obtaining a declaration that the plaintiff is the owner of the land freefrom any right of highway. The questions referred to us are these:

[His Lordship here read the questions referred andcontinued.]

2. It seems convenient to examine this matter under twoseparate heads, and to consider first whether, upon general principles, thepresent suit, either in its existing form or with any modifications, can lie,and what relief, if any, can be given in it; and, secondly, to considerwhether, if so, the suit is barred by the provisions of the Criminal ProcedureCode, or by the proceedings which have been taken under it.

3. With regard to the first of these questions, it may beuseful to premise that by the common law of England there are three distinctclasses of rights of way and other similar rights. First, there are privaterights in the strict sense of the term vested in particular individuals or theowners of particular tenements, and such rights commonly have their origin ingrant or prescription. Secondly, there are rights belonging to certain classesof persons, certain portions of the public, such as the freemen of a city, thetenants of a manor, or the inhabitants of a parish or village. Such rightscommonly have their origin in custom. Thirdly, there are public rights in thefull sense of the term which exist for the benefit of all the Queens subjects;and the source of these is ordinarily dedication.

4. It is unnecessary to enquire whether the mode ofacquiring each of these classes of rights is necessarily the same in all casesin England and in India. But it is, I think, important to remember that thesethree classes of rights exist in the one country as well as in the other. Thefirst class, strictly private rights, we are all familiar with. The thirdclass, public rights are of frequent occurrence. The second class of rightsbelonging to a portion of the public are also to be found in India. They areexpressly recognised by the Legislature in Section 42, Illustration A, andSection 54, Illustration P, of the Specific Belief Act. It is speciallyimportant that this class of rights should be clearly understood and borne inmind in a country like India, where interests of the most essential importancedepend so largely upon custom. And I am not sure that the existence of thisclass of rights has not sometimes been overlooked. I think there is reason tosuspect that, in some cases, ways and other claims of a like nature have beentreated as public rights, when perhaps they might have been both more correctlyand more conveniently regarded as village ways and village rights; morecorrectly, because I think there is reason to suppose that such village roadsas distinguished from public roads are of very common occurrence; moreconveniently, because, as I shall show later, there may be more easy civilremedies for treating questions of village roads than questions relating topublic roads.

5. With regard to private roads strictly so called, theprovisions of the law for asserting rights of way on the one hand or resistingthem on the other, in the Civil Courts are too well known to require detailedconsideration here. With regard to rights vested in classes, it is unnecessaryto enquire for the present purpose how far the same civil remedies areavailable on the one side and on the other, as in the case of strictly privateways. But it is, I think, important to observe that there are some additionalremedies certainly open. First, where such a right is claimed, it would seemthat a member of the class entitled might, by taking the proper steps underSection 30 of the Civil Procedure Code, obtain permission to sue, on behalf ofhimself and the other members of the class, any one who disturbed or sought todisturb the right of way. Upon the other hand, in s. 42, Illustration A of theSpecific Relief Act, it seems to be distinctly pointed out that where such aright is claimed, a suit will lie by the owner of the soil for n declarationnegativing the right, and I presume under Section 30 of the Civil ProcedureCode a suit might be so brought, with the permission of the Court, against oneor more members of the class as representing the rest. Section 54, IllustrationP of the Specific Relief Act, further shows that if the owner of the soilobtained a declaratory decree against several villagers negativing a right ofway, this would be good ground for restraining by injunction suits subsequentlybrought by the others. Again, a remedy is probably given for preventing theinfringement of such a right of way under Section 133 and the followingsections of the Criminal Procedure Code, no less than in the case of a publicway in the full sense of the term.

6. When we turn to the case of public ways in the full senseof the term (and the present case falls under that heading), it is not quite soeasy to say what remedies are open in the interest of the public on the oneside and on the other side of the owner of the land who denies the publicright. Certain suggested classes of suits directly connected with proceedingssuch as those which in this case have taken place before the Magistrate may bevery briefly dismissed, but I shall consider them one by one. In the firstplace, it is plain both on principle and authority that no suit will lie to setaside the Magistrates order. It is sufficient on this point to refer to thecases of Ujalamayi Dasi v. Chundra Kumar Neogi 244. B.L.R.F.B. Mutty Ram Sahoov. Moti Lall Roy 6 C. 291 and Rooke v. Pearee Lall Coal Go. 11 W.R. 434 :B.L.R. App. 43 Nor can the plaintiff sue the Magistrate personally, for theMagistrate has only acted in the discharge of his legal duty in a judicialcharacter. For this may be cited Ujalamayis case cited above and MeechooChunder Sircar v. Ravenshaw 11 B.L.R. 9 : 19 W.R. 345/nfcitation> Nor canthe person who institutes proceedings be sued for damages, for he has only setthe law in motion. For this, may be cited Chinta Monee Bapoolee v. BigamberMitter 10 W.R. 409 : 2 B.L.R.S.N. 15

7. But putting all these forms of suit aside as out of thequestion, it remains to consider what remedies there are on one side and on theother for trying the question of the existence of a public right of way. In theBombay Presidency no difficulty arises because by 11 W.R. Section 37 of theBombay Act V of 1879 the soil of public roads is vested in the Secretary ofState. Accordingly every question of highway becomes of necessity a question ofconflicting titles to the soil, and can be treated as such. The case isprobably much the same in Calcutta by reason of Section 189 of the CalcuttaMunicipal Consolidation Act, 1876, which vests the soil of public streets inthe Commissioners, and perhaps also in Mufussil Municipalities, under Section30 of Bengal Act III of 1884. But there is no such law applicable to theProvince of Bengal generally.

8. If any one obstructs a public highway he may be liable toa criminal charge of nuisance under Section 283 of the Penal Code, or ofmischief under Section 431, if the circumstances be such as to sustain eitherof these charges. Any one who sustains special injury by reason of anobstruction to a highway may bring a suit, claiming damages, and any otherappropriate relief. And further, under Section 133 and the following sectionsof the Criminal Procedure Code, summary proceedings may be taken by aMagisterial to prevent or remove any such obstruction injurious to the public.

9. On the other hand, if a man owns land and anybodytrespasses upon it, claiming a right to use it as a public highway, there canbe no doubt that a suit for damages will lie. Under special circumstances, andif the injury likely to result were of a grave nature, I presume an injunctionmight be granted to restrain the threatened invasion of a mans property undera claim of public highway. Neither of these remedies is available under thecircumstances of the present case. But I can see no reason, on principle, why asuit for a declaration of right should not lie, under Section 42 of theSpecific Relief Act, on the part of an owner of land, against any one who hasformally claimed to use the land as a public road, and thereby endangered thetitle of the owner. Such a suit could not have been maintained before theSpecific Relief Act, because no consequential relief could have been claimed,and on this ground the decision proceeded in Madhub Chunder Gooho v. Kumla KantChuckerbutty 6 B.L.R. 643 : 15 W.R. 293 But the law upon this point has beenaltered by that Act. It is true that the declaration sc given would beabsolutely binding only on the defendant to the suit, but it may be that no onebut the defendant raises any claim adverse to the plaintiff, and that adecision binding upon the defendant will be sufficient for the plaintiffsprotection, and if so, I do not see why he should not have such a declaration.Moreover, though such a declaration would not be conclusive against a stranger,it would be admissible against a stranger under Section 42 of the Evidence Act;and if the suit were fairly and properly conducted, the decision would, Ithink, be practically conclusive in any subsequent proceeding. It should beremembered, too, that exactly the same inconvenience or defect would occur,either in this country or in England, if the suit were one complaining of anactual trespass, in which the defendant justified his act under a claim to usethe place in question as a public road, and if his claim were rejected. If sucha suit as this does not lie, there seems to be no provision in the law by whicha man can establish his title to enjoy his own land freely, as against one whoclaims to use it as a highway, and that is a state of things which I think weshould not accept as the law, unless we are constrained to do so.

10. The second branch of the enquiry is whether, assumingsuch a suit to lie on general principles, it is barred by the provisions of theCriminal Procedure Code or by the proceedings which have taken place underthem. It has been decided by a Full Bench in Raj Koomar Singh v. Shahebzada Roy3 C. 20 that the existence of these provisions is not a bar to a suit broughtfor an obstruction on a highway by a parson who has suffered special damage,and I think it clear that it can no more be a bar to a suit of the conversekind brought to negative the existence of a highway.

11. The question remains whether the proceedings that havetaken place before the Magistrate are a bar to this suit; in other words,whether an order absolute by a Magistrate for the removal of an obstructionfrom a place held by him to be a highway is final and conclusive upon thequestion of highway or no highway. The decision of a Magistrate in a summaryproceeding is not, I think, ordinarily final and conclusive on a question oftitle, and does not exclude the jurisdiction of the Civil Courts to enquireinto the matter, unless the intention of the Legislature that it shall havesuch effect is shown. In the present case, no such intention is expressly declared,arid such indications of intention as are to be found seem to me to point inthe other direction. It is expressly said that a preliminary order underSection 133 is not to be called in question by a Civil Court, and that no suitshall lie (which means I apprehend no suit for damages for anything done ingood faith under Section 140 or Section 142. But nothing is said as to theorder absolute which, if anything does so, affects the title.

12. The authorities upon this point appear to stand thus:Act XXI of 1841 differed much in its language from the sections we now have toconstrue, especially in that it gave an appeal from the Magistrates order.Under that Act there was some conflict of decision as to whether theMagistrates order precluded a civil suit to try the existence of a highway. InThe Government v. Choonee Lall (1853) S.D.A.129 it seems to have been thoughtthat such a suit would not lie, and the same view was taken in Prankishen Surmav. Ramrooder Surma Marsh 2 Hay 86, and apparently in Kedarnath Mookerjee v.Parbutty Peishtar 2 W.R. 267 On the other hand, in Anundmohun Khan v. RoyShambhoonath Chuckerbuttee (1858) S.D.A.938it was held that a civil suit lay toestablish that a place was not a highway which the Magistrate bad held to be one,and this was followed in Sham Doss v. Bhola Doss 1 W.R. 324.

13. under Section 308 of the Criminal Procedure Code (ActXXV) of 1861, there was again some conflict of opinion. In Bhakas Ram Sahoo v.Chummun Ram 7 W.R. 11 the question was treated as an open one, but it was saidthat if a suit lay the Government must be a party, a view also thrown out inthe case cited from the Sudder Dewanny Adawlut, 1858. In Azeezoolleh Gazee v.Bunk Beharee Roy 7 W.R. 48 and in Bam Shodoy Ghose v. Juttadharee Holdar 7 W.R.95 the jurisdiction of the Civil Court was expressly upheld. Some observationsof Peacock, C.J., in Boroda Pershad Moostafee v. Gora Chand Moostafee 12 W.R.160 : 3 B.L.R.A.C. 295 are rather against the jurisdiction and in MeechooChunder Sarcar v. Ravenshaw 11 B.L.R. 9 : 19 W.R. 345 Couch, C.J., expressed adecided opinion that a Magistrates decision bars a civil suit.

14. Under the Code now in force in Khodabuksh Mundul v.Monglai Mundul 14 C 60 Prisep and Bevlrly, JJ., decided that a civil suit is barredby the Magistrates order. On the other hand, in this Court, White and Field,JJ., in Motty Ram Sahoo v. Mohi Lall Roy 6 C. 291held that the Magistratesdecision did not preclude a Civil Court from enquiring into the question oftitle. And in the Bombay High Court this view has been repeatedly accepted,both under the earlier and under the present Acts. It was taken by Melville andKemball, JJ., in Lalji Ukheda v. Jowba Douba 8 B.H.C.R.A.C. 94 by Westropp,C.J., and F. Melville. J., in Nilkanthapa Malkapa v. Magistrate of Sholapur 6B. 670and by Melville and West, JJ., in Bularam Chatrukalal v. Magistrate ofTaluqa Igatpuri 6 C. 672

15. I should answer the first question referred to us in theaffirmative. I should answer the second by saying that the declaratory decreegiven is correct. The third and fourth I should answer by saying that theSecretary of State could not properly be made a party. And I should dismiss theappeal without costs.

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Ram Kishen Sahu vs.Chunilal (28.03.1888 - CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 25.04.1888

Appellants: Rajendro Narain Roy

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Respondent: Phudy Mondul and Ors.

Honble Judges/Coram:

William Comer Petheram, C.J. Loftus Richard Tottenham andJames Quain Pigot, JJ.

Subject: Civil

Catch Words

Mentioned IN

Case Note:

Bengal Tenancy Act (Act VIII of 1885), Section 174 -Judgment-debtor, Meaning of.

JUDGMENT

William Comer Petheram, C.J.

1. The only question which is raised in this appeal is thequestion, what 1st he meaning of the word "judgment-debtor" inSection 174 of the Bengal Tenancy Act. So far as I can see, the expression"judgment-debtor" is an expression which is so well understood thatit is impossible to give it any other than its well understood meaning, andthat is, the person against whom a decree has been obtained. Mr. Evans suggeststo us that it means not only the judgment-debtor himself, but also the assigneeof the judgment-debtors property, and that is the view which has been taken byMr. Justice Norris. Mr. Justice Norris, in discussing the matter, discusses iton the ground that the Legislature may well have taken a wider view of thematter, but the question is not what they might have done, nor what it wouldhave been wise for them to do, but what they have done, and they have said, inthis particular case, that the only person who is to have this privilege is thejudgment-debtor, and I do not think we can extend it beyond that.

2. Then in Section 170 the Legislature gives another rightunder different circumstances, and in that section they extend the power notonly to the judgment-debtor, but to other persons besides, but they haverefrained from doing so in Section 174, and from this also it would appear thatthey have done so intentionally.

3. On the whole, we think that the view taken by Mr. JusticeBeverley is the correct view of the section, and this appeal must be dismissedwith costs.

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Rajendro Narain Roy vs. Phudy Mondul and Ors. (25.04.1888 -CALHC)