JUDGMENT
Chatterjee, J.
1. Upon a close reading of the plaint in this case, there does not seem to be any doubt that the plaintiff had a cause of action. The plaintiff says that contiguous to his land, or rather between his land and that of Arjan Bibi, there is a piece of land which is his own private land, that upon this the defendants in common with other people are asserting the existence of a public right of way, that the defendants initiated proceedings under Section 133, Criminal Procedure Code, and, that there was an inspection by a jury of this land and that in consequence of the assertion of this right, there has been an order of the Magistrate upon him to remove certain structure which the Magistrate found to be obstruction upon the alleged public right of way, claiming, as the plaintiff does, a private right upon the land over which a public right of way is claimed and thinking that a cloud has been thrown upon his title by the proceedings under Section 133, Criminal Procedure Code, the plaintiff alleged that his right had been invaded. The plaintiff has a right to call upon the Court to remedy the injury that he has suffered. This disposes of the first point upon which the suit of the plaintiff has been dismissed by the lower appellate Court namely the want of a cause of action.
2. Then comes the question under Section 30 of the Civil Procedure Code. Was the procedure of the first Court so far as Section 30, Civil Procedure Code, is concerned regular? If it was not, was there anything in the procedure of the first Court affecting the merits or the jurisdiction of the Court which should invalidate its decree and further, even if Section 30 had not been properly complied with and even if the procedure taken thereunder could be impeached as illegal, was the Court right in proceeding with the suit and giving a decree against the defendants? The defendants did allege a public right of way over the disputed land belonging to the plaintiff. The plaintiff had, therefore, a right to bring a suit as against them alone for a declaration of his private right without impleading any other member of the public. [See Chuni Lall v. Ram Kishen Sahu 15 C. 460]. To this extent at least, therefore, the suit of the plaintiff deserved a trial upon merits. Then as regards the proceedings, taken under Section 30, Civil Procedure Code, it appears that the plaintiff did apply under that section at the time of filing his plaint and that some time after, that is, about a year before the trial of the suit, notices were issued under Section 30. It was subsequent to the service of these notices that the defendants put in appearance and filed their written statement. Evidence was adduced on both sides upon the rights asserted by each and the defendants adduced evidence to show that the right of public way claimed by them in common with other members of the public did exist. Upon this evidence, the first Court came to a conclusion in favour of the plaintiff. It has never been said in this case that the defendants or any of them had been in any way prejudiced for want of a formal order under Section 30, Civil Procedure Code, being recorded before the trial of the case. It cannot be said that the first Court had no jurisdiction to try the suit. Even if it could not make a decree binding upon the entire public of the place interested in the disputed path, it could make a decree against the defendants. Therefore there was no want of initial jurisdiction. On the merits also it has never been objected that the defendants were prevented by any defect in the procedure of the Court from adducing any evidence which it was not in their power to adduce or that the defendants were in any way injured in the trial of the case on its merits by the action taken by the first Court. From the facts that notices were issued one year before the trial, that the defendants ,after service of the notices put in written statement and adduced evidence in support of the public right of way, it was perfectly open to the Munsif to say that there had been no injury to any party on the merits. Burt apart from that the Munsif did record a formal order at last and the defect, as it did not affect the case on the merits, seems to have been cured. In any case it was not open to the lower appellate Court to set aside the judgment of the first Court without coming to a finding as to whether there had been any injury to any of the parties on the merits. Section 578 of the old Civil Procedure Code is a bar to the procedure it has adopted. The case of Kali Kanta Surma v. Gouri Prasad Surma Bardeuri 17 C. 906, has been referred to as showing that there has been a defect of procedure in this case in that it was not specifically stated in the notice as to which party was to represent the public. I think when the notice mentioned the defendants and other residents of the neighbouring villages, the description was definite enough. The simple fact that A or B has not been directed by an express order of the Court before the trial as authorised to defend the suit does not affect the result of the case so long as it is not shown that that want has been prejudicial to any vested right. I may refer to the cases of Dhunput Singh v. Paresh Nath Singh 21 C. 180, Kalu Khabir v. Jan Meah 29 C. 100, as showing that a decision respecting public right is not to be set aside on the ground of mere irregularity like the one in question in this case. In this view of the case, I think that the case ought to have been tried on the merits by the Subordinate Judge. I, therefore, set aside his judgment and decree and send back the case for a decision on the merits. Costs to abide the result.
