Nanga and others vs Durgah Piran Pir

Nigam, J.C.

Suit No. 179 of 1941 (now numbered 118 of 1947) was filed in the court of the Sub-Judge, First Class, Ajmer, by Durgah Piran Pir, Ajmer, against Moti and four others on their behalf and on the behalf of the whole body of villagers of village Makhupura. Action under O. 1, R. 8, Civil P.C., was taken and 13 persons were added as defendants on their application. A decree restraining the defendants by means of a perpetual injunction from interfering with the plaintiff''s rights of ownership in the unimproved and waste lands and all mines, opened and un-opened and of all lime-stone and gravel quarries and of trees standing thereon within the limits of Mukhupura village and from digging lime-stone ballast gravel, etc., or removing pods or wood of trees standing on plaintiff''s lands within the limits of Makhupura village was claimed. A written statement was filed on 28-10-1941. On 13-5-1947 the suit was dismissed in part by the learned Sub-Judge, 1st Class, Ajmer, on the ground that the ''jagirdar'' could not bring a representative suit against villagers in respect of the stone-quarries as there was no community of interest between the defendants. The learned Sub-Judge granted the plaintiff the relief of a declaration that the villagers have no right to pick pods from bambool trees standing on the banjar land. Against this judgment and decree, the plaintiff, Durgah Piran Pir went up in appeal. The learned District Judge disposed of the appeal by his order, dated 3-5-1950. He held that the plaintiff had come to the court with the allegation that a common right had been asserted by the defendants and the defendants did, in fact, plead that the plaintiff was not entitled to interfere in the long existing common rights of the defendants. That such a question could best be decided in a representative suit where the parties are numerous. He, therefore, set aside the decision of the learned Sub-Judge and remanded the case to the court below for trial of the whole of the suit in accordance with law. When the suit went back to the court of the learned Sub-Judge, the defendants 5-18 applied for permission to amend their written statement. The learned Sub-Judge did not allow the amendment. Against that order, Nanga and 12 others have come up in revision. I have heard the learned counsel for the parties.

A preliminary objection has been taken by the learned counsel for the plaintiff opposite party. It is to the effect that no revision lies. The learned counsel has relied on - L.A. Subramania Iyer Vs. R.H. Hitchcock, ; - Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, and - Saradindu Mukherjee Vs. Jahar Lall Agarwalla, . The learned Counsel for the applicant has on the other hand referred me to - " 1928 AMLJ 53 (D); - ''Maula Bux v. Shobhagmal'', 1934 AMLJ 105 (E); - ''Beni Gopal v. Damodara Das'', AIR 1950 Ajmer 33 (F) and - ''Municipal Comimttee v. Mool Chand'', AIR 1951 Ajmer 90 (G).

I need not discuss the law at length. I respectfully agree with the view expressed in - '' AIR 1951 Ajmer 90 (G)''. In this ruling my learned predecessor discussed the ruling - ''Girdharilal v. Bishen Dei'', 1938 AMLJ 115 (H) and also referred at length to - AIR 1943 65 (Lahore) and - ''Shiva Nathaji v. Joma Kashinath'', 7 Bombay 341 (J). I proceed to apply the principles laid down in - '' AIR 1951 Ajmer 90 (G)''. On that baste I am of opinion that no interference is necessary in this revision. There is no question of law involved. The present decision can be challenged in appeal and the learned Sub-Judge has committed no error of jurisdiction. There is no question as to the wrong, if any, being irremediable by regular procedure and I am of opinion that the available remedy is neither too remote nor cumbersome.

I, therefore, see no force in this revision application and dismiss it with costs.