The Superintending Engineer 2nd Circle vs Chitturi Ramakrishnayya and Another

Sadasiva Aiyar, J.—The defendant, who is described in the plaint as a Government Officer, (namely, the Superintending Engineer, 2nd

circle, D. P. W., residing at Bezawada) is the appellant before us.

This suit for injunction (among other reliefs) was brought against him because (according to the plaint) the defendant in his official capacity

attempted to remove a dilapidated Ganapathi Image, which had been placed on a site which has been found by the lower Appellate Court to

belong to the Government. The image itself also has been found by that Court to belong to the Government. The Court, however, found (see

paragraph 13 of its judgment), (1) that some sort of worship was being done to the said idol for a long time, even when the idol lay half buried in

the ground, it having been raised up and placed on a platform only in 1915: (2) that to establish a customary right, it was not necessary that there

should be enjoyment for over 20 years or the like. The lower Court further said, ""even supposing that the enjoyment claimed does not go so far

back as to 1872 or 1873, still, I am of opinion, on the evidence on record, that there was sufficient enjoyment for the acquisition of the customary

right by the plaintiffs"" that is the right to worship the idol at the place where it now stands. On these grounds the lower Appellate Court confirmed

the permanent injunction granted by the District; Munsif. Several grounds have been taken in the memorandum of second appeal; but I shall deal

with only three of them, namely, grounds Nos. 7, 10 and 11.

The Courts below ought to have held that the suit is barred for want of notice u/s 80 of the Civil Procedure Code, The cases relied on by the

lower Appellate Court do not apply and are not correctly decided.

The lower Appellate Court erred in finding that the so called customary right of the plaintiffs is made out.

There cannot be such a custom as is set up by the plaintiff. There is no legal evidence in support of the custom set up. The finding of the lower

Appellate Court in paragraph 13 of its judgment is unintelligible.

I shall deal, shortly, with grounds NOS. 10 and 11. I shall not go into the question whether a customary right in the Hindu public to worship an

idol belonging to a third person, and placed on a site belonging to that third person, can he legally acquired or proved, as my mind is not quite

made up on that point. Assuming that such a customary right can he proved by the fact that the owner of the site and of the idol had allowed such

worship to be carried on for a sufficiently long time by the Hindu public, I am clear that the proof required by the Courts, especially where the

owner of the site and the idol is not a Hindu must be very clear and strong. (The Government being neutral in religion is of course not Hindu in

religion.) The length of time must be considerable and the acts of worship must be very open and such as clearly indicate to the owner that the

worshippers have claimed the right to carry on the worship openly and as a customary right. Paragraph 13 of the lower Court''s judgment is vague

and indefinite, It does not set out the particular acts of worship, or the length of the enjoyment of the alleged right or whether the acts were such as

to give notion to the Government that the worship was carried on, an of right. The Distrait Munsif finds (see page 13, line 40 of the printed papers)

that it was in July 1915 that the platform for the idol was erected, evidently by the D. P. W. itself, and that the image which had been lying half

buried was raised up and pleased on the platform. The site of the idol had, therefore, been changed at least vertically. P.W. No. 2 himself save in

September 1917; During the last 2 or 3 years worship is being carried on, on a ""grand scale.'''' Before that, according to Exhibit I, cocoanuts used

to be broken before the half buried Ganesa, by passing worshippers such worship is even done to peepul and margosa trees standing on District

Board roads and Municipal roads by some devout Hindus and it would be dangerous to hold that the Municipally or the District Board is not

entitled to out them down, if such setting is required to widen the roads or for any other lawful purpose. I shall, however, not express any final

opinion on this matter and, even if it is necessary to come to a conclusion on this point, I should hesitate to accept the vague finding of the lower

Appellate Court, on the necessary fasts to be proved and would call for a more detailed and definite finding, as to the times, planes, nature, extents

and qualities of the acts of worship. As to the length of the enjoyment required for the acquisition of a customary right (also loosely called

customary easement""), I remarked recently that though no period is mentioned in the Limitation Act for the acquisition by the public of a

customary right by long enjoyment Courts will be well-advised if they require at least 20 years'' uninterrupted and acquiesced enjoyment to

establish such a customary right in the public, the owner having knowledge of such an enjoyment (See Second Appeal No. 722 of 1919).

Again, it appears from Exhibit III(6), paragraphs Nos. 3 and 4, that the image of Ganesa had gone out of the proper form, which the Agamas

required for an image of one of the higher 5 deities, namely, Sun, Ambika, Vishnu, Ganesa and Maheswara to form an appropriate object of public

worship Paragraph 3 says: farther we have not got any kind of Dharmakartaship to the said stone image. We propose repairing the same as an Act

of charity to give proper from the said image. Therefore, we do not possess any kind of right. We, therefore, pray for orders, to repair the same.

Further, by the words please to consider'' we mean repairing only these namely, the a Trunk, eyes, seared thread, hands, ears, legs, etc.

In fact, it appears from the documentary evidence that a new trunk had to be provided for the idol. It is an arguable question whether an image

like this, which had been buried long under the earth and which was found in an excavation which was touched by other religionists and which

belonged evidently to a Siva temple probably destroyed by Mussalman invaders can be claimed by a Hindu as an object of temple claimed by a

Hindu as an object of temple Ashtabandhanam ceremony according, to Agamas, is performed for it. However, as I said, I shall decide this

particular suit merely on the question of notice alone u/s 80, Civil Procedure Code.

On this question of notice, I have expressed my opinion strongly in the case reported in Secretary of State v. Kalekhan 16 Ind. Cas. 947 . That

case was no doubt a case where the defendant was the Secretary of State in Council and not a public officer as in this case. The Full Bench case in

Samanthala Koti Reddi v. Pothuri Subbiah 46 Ind. Cas. 86 in which both of as took part was a case against a Village Munsif, sating as a public

officer. In the above two eases, it was held that Section 80 should be strictly com-plied with by a plaintiff who brings any kind of suit against the

Secretary of State or who brings a suit against a public officer in respect of any Act purported to be done by the said public officer in his official

capacity. In the present case it is admitted that the two months'' notice mentioned in the section was not given to the Superintending Engineer. It

was, however, argued, on the strength of some English decisions, that where the relief claimed is one by way of injunction or where irreparable

injury is likely to be caused if a rule nisi for an injunction is not at once granted, the notice required by the section was unnecessary. I expressed my

dissent from those oases in Secretary of State v. Kalekhan 16 Ind. Cas. 947, and I have nothing to add to what I then said. No doubt, I confined

my remarks to the case of a suit against the Secretary of State and added, as regards the argument based on irreparable injury, chat ""if a suit

against the public officer alone for an injunction could be brought without notice (a position on which I reserve my opinion) no irreparable injury to

the plaintiff would be caused"" if he took certain steps. Thus, it is clear that I did reserve my opinion on that point and did not mean to express any

opinion to the effect that there was a distinction on this point between the case where the suit is brought for an injunction against the Secretary of

State and the case where a suit is brought against a public officer for an Act done in his official capacity. I do not think that any such distinction can

be supported on the language of the Code. If serious no hardship be sustained by a plaintiff in some oases on the strict language of the section, the

proper course is to appeal to the Legislature to enact an exception to Section 80 to the following effect: ""where, in the opinion of the Court,

irreparable injury might be caused to the plaintiff, if the notice required by the section is insisted upon, as a preliminary to the entertainment of the

suit, the Court may entertain the suit without such preliminary notice. In such a case it shall allow the defendant at least two months from the date of

the service of the commons for his appearance to answer the claim, in case the summons had been served within two months before the date fixed

in the summons for his appearance.

It was finally argued by the respondent that the suit was brought not for an Act done by the Engineer, defendant, but for a threatened Act, and,

therefore, Section 80, does not apply. I entirely agree with the judgment just now pronounced by my learned brother that a threat to do a future

injurious Act, when the threat is conveyed through the performance of an Act, such as speech, writing, sending a notice or message, and so on, is

also within the intention of the Legislature, when it uses the word ""act"" in Section 80. ""Acts"" are performed according to Indian philosophical

notions, by the body, by the ten senses and by the mind (the eleventh sense) though only five of the sense are especially called Karmendriyas. Two

of the latter, namely, (1) ''hand'', and (2) foot'' include all,, muscular exertions, (1) involving motion not involving change of place of the body as a

whole; and (2) involving locomotion]. Modern legal tribunals and modern law are both to attach liabilities to a wrongful Act, which is not

accompanied by physical motion or physical sound or direct physical feeling which can be perceived by an ordinary man. Though it is said that

even a cat can look with impunity on a king, it may be that as the law develops, even a Gnanendriya act, such as, (say looking at the plaintiff in an

insolent or threatening manner) will be held by Courts to give a cause of action for damages. There is a conflict of opinion in American Courts

whether mere nervous shook caused to the plaintiff (without any apparent external injury), resulting from a wrongful Act, gives rise to a cause of

action. Spoken words of slander did not, according to the English Common Law, give rise to a cause of action, except in a limited class of cases;

but this Court extended the law of slander in Parvathi v. Mannar 8 M. 175. I am not sure that with the spread among a considerable body of

humanity of mesmeric (or as it is now called hypnotic) and other powers (now abnormal) among mankind, and of the spread of evil influences

(even though concealed from ordinary sense perceptions) exercised by such powers, the law may not be obliged to recognise injuries caused by

the wrongful (sic) of the Gnanendriyas and even of the mind India. To some bank from these remote (though interesting) speculations to the present

case, paragraph 5 of the plaint in this case states that the cause of action arose when the defendant threatened to remove the image and the pandal.

It is not denied that the threat was not a mere mental Act, which the plaintiff had learnt by telepathy. The written statement slates that final orders

were passed by the defendant in August 1916, for the removal of the image and the pandal. It is not denied that the order was a signed and a

written order and was communicated to the plaintiffs, by a perceivable physical act or physical acts done by the defendant or by the agents of the

defendant and that that was the threat which gave rise to the plaintiff''s cause of action. I, therefore, hold that Section 80, Civil Procedure Code, is

applicable to the suit.

In the result I agree that the decrees of the lower Courts should be set aside and the suit dismissed with costs through-out.

Spencer, J.

This suit was brought by two traders residing at Bezwada, against the Superintending Engineer, D.P.W., II Circle, to obtain an injunction

prohibiting him from removing the stone image of Garesa situated on the canal bank by the side of the Hyderabad road in Bezwada and from

otherwise interfering with it or with the pandal over it. The prayer in repeat of the pandal was refused and requires no consideration by us. An

injunction was granted by the District Munsif and, on appeal, his judgment was confirmed by the Temporary Subordinate Judge, and the defendant

now appeals.

As above stated, the subject of the suit is a stone idol representing God Vinayakar or Ganesa, the history of which appears in the judgments of

the lower Courts. This appears to have been discovered when the main channel of the Kistna water works was widened in the year 1872 or 1873.

It was placed in its present position by the public Works Department, as an ornament to the wall and has since become an object of worship to

persons who trade along the canal in beats and to passers by. In 1915, (i.e., only one year before suit) a platform was built and also a temporary

pandal was created on festival occasions, with the permission of the Public Works Department, or the Municipality or both.

The District Munsif found that the idol and the site occupied by it belonged to the public, who had acquired a right to it, by continuous worship

for a very long time and he, therefore, held that the plaintiffs had a right to worship it and were entitled to the injunction prayed for. The

Subordinate Judge found that both the idol and the site were the property of the Government and he rightly rejected the pleas advanced on behalf

of the plaintiffs that the idol itself had acquired a right to the site by the adverse possession. This claim seems to have been advanced upon the

strength of the theory that an idol is a juridical person capable of holding property. The idea that an inanimate block of stone is capable of

exercising personal rights of property is of courage absurd; but, as pointed out in Mr. Ganapathy Ayar''s Religious Endowments, the theory is

based on the idea that it is really the deity that resides in the image and that it is the deity and not the image that is the juridiaal person. Mr.

Ganapathy Aiyar observes, at page 40, that it is only in an ideal sense the property an belong to an idol and the possession and management must,

in the nature of things, be entrusted to some person as a shebait or manager. In the present case, there is no manager or trustee for the suit image.

The Subordinate Judge based his finding for the plaintiffs upon the view that they had acquired a customary right to worship the idol at the

place where it now stands and he has supported his opinion by a reference to Palaniandi Tevar v. Puthirangonda Nadan 20 M. 389 . That was a

case where certain persons residing in a particular village were held to be entitled to the use of the water of a certain well, by being in possession of

houses in that village and residing therein. It was thus a case of a customary easement. The right of taking water is a well known customary right

recognised by law. (See Halsbury''s Laws of England, Volume 10, paragraph 454). But I am not aware of any instance where it has been held that

any interest or right of management in the property of another can be acquired by continued acts of worship being shown to that property. It would

be a dangerous doctrine to hold that a tree or stone standing in private premises could become subject to the control of the public or of any

particular individual by the mere circumstance of acts of worship begins performed by persons who see in that object the abode of a deity. Of

course, public rights of way may be acquired by access to such an object being left unobstructed for 20 years. But it is not a right of way that is

claimed in this suit. Nor does this image fall within the scope of endowments, as it is not a mosque, temple or religious establish must mentioned in

Section 14 of Act XX of 1863. I am, therefore, unable to see what right of action the plaintiffs had to bring this suit.

Mr. Narayanamurthy for the respondents tried to bring the plaintiff''s suit under the heading of a customary right. Customary rights are

mentioned in Section 2, Clause (b) of the Indian Basements Act. They are distinguished from elements in that they may be possessed by the public

or by any person irrespective of any other Immovable property; whereas an easement is always appurtenant to a dominant heritage. It is conceded

that this is not a case of an easement; nor does it fall within the class of profits a prendre as there are no profits to be enjoyed in connection with

the worship of the image. Nor does the plaintiffs'' suit come under the heading of a claim to a religious office, as there is no religious duty to be

discharged in connection with the image.

It is found by the Sunordinate Judge that the image is the Property of the Government whose servant the defendant is. If an idol is not attached

to some public institution or religions foundation, it must be the private property of some one owning the same. (See page 41 of Ganapathy Aiyars

Religious Endowments.) There is no other kind of property in an idol known to law. The idol itself is caput mortom. Property dedicated to an idol

and property endowed for religious purposes is res sacra extra commercial (not subject to alienation). Here we have no endowment, no dedication

within the memory of man; nothing but a carved block of atone without even walls, or a site to form a shrine for it. This is not. one of those not

uncommon cases of an intercurrence with a general right of worship in which a particular person is prevented from worshipping at some temple or

shrine by his fellow worshippers. As the plaintiffs have failed to establish that they have acquired any interest in the subject of the suit, such as

would give them a right of control and disposal over it, and as they have not shown how they are personally injured by any Act or threatened Act

of the defendant, I am of opinion that their suit should be dismissed.

The suit is also bad, in my opinion, owing to the failure of the plaintiffs to give notice as required by Section 80 of the Civil Procedure Code.

An attempt has been made to justify this failure, on the ground that this is a suit based not on any act done by the defendant, but to prevent an Act

threatened to be done by him and reliance is placed on an observation in Secretary of State v. Kalekhan 16 Ind. Cas. 947 , made by my learned

brother, where he assumed, for purposes of argument, that a suit may be brought against a public officer to obtain an injunction without notice. But

he did not decide that notice was unnecessary; in fact, he reserved his opinion on that point. It is clear, to my mind, that notice under the above

section of the Code is necessary when a gait is instituted against the Secretary of State for India in Council, or against the public officer in respect

of any Act purporting to be doer by him in his official capacity; and I understand ""act"" in this context as including word?, spoken or written, which

may cause the plaintiff to apprehend some injury in the future. If there was no such Act, it is not clear what ground the plaintiffs had to anticipate a

threatened invasion of their supposed right, so as to give an occasion for instituting this suit for an injunction. I would, therefore, allow this appeal

and dismiss the plaintiffs'' suit with costs throughout.