Kashi Das vs Shah Muhammad and Others

W. Comer Petheram, C.J.—I am of opinion that this appeal must be allowed and the suit dismissed. The suit was brought to try a right to use a certain flight of steps in the city of Ghazipur, which led from a street in the city to the river Ganges. The plaintiff alleges that the steps are his own private property, and that nobody else, without leave from him, has any right to use them. The defendants allege that the steps are not the property of the plaintiff; and further, that even if they were, the public have a right to use them. Now, if the suit had been properly framed, that issue should be tried. But the persons conducting the litigation mistook the powers which the Courts have; and instead of bringing a suit for trespass or asking for an injunction to prevent persons from trespassing, they brought a suit against persons who had never interfered with the steps at all, and prayed for an injunction against the whole world. Now, no Court in existence has or can have such powers, and therefore the suit must be dismissed. Then it is said that, this being so, the defendants should have their costs, and that would be proper if at the beginning the defendants had taken the point that the suit was not maintainable. But instead of doing so they fought the case all along as if the suit was maintainable, and upon a false issue. The litigation, owing to the mistake of both sides, has been wholly fruitless. I think therefore that both sides should pay their own costs.

Mr. Bill contended that the appeal should be allowed on the question of jurisdiction, and that his clients should be allowed their costs, the plea that the Munsif had not jurisdiction having been taken from the beginning of the litigation. It seems to me that the relief which the plaintiff claimed was valueless. Had he obtained a decree, it would have been worth nothing to him. Therefore it cannot be said that the relief sought by him exceeded in value the Munsif''s pecuniary jurisdiction. If the plaintiff had sued in proper form, the relief which might have been granted might have been very, valuable.

Brodhurst, J.

concurred.