JUDGMENT Umeshwar Pandey, J.
1. Heard Sri H.N. Singh, advocate for the appellant and Sri Manish Nigam holding brief of Sri B.D. Pandey for the respondents.
2. The judgment and decree passed by the lower appellate court dated 11.9.2006 are challenged in this second appeal whereby the court below has dismissed the appellant's first appeal confirming the judgment and decree passed by the trial court.
3. Appellant's suit for permanent injunction was dismissed and the counter-claim of the respondents defendants was decreed by the trial court directing the plaintiff to remove his wall and channel gate falling in the disputed land. The plaintiff had filed the suit claiming the land in question as his sahan and had claimed the relief of permanent injunction against the defendants-respondents. On the contrary while contesting, the suit, the defendants had pleaded that the land in question in which the wall and channel gate has been erected by the plaintiff is actually a rasta land continuously used by them since before the consolidation operation. Since the construction so raised by the plaintiff over this land is encroachment of that rasta land, they put a counter-claim for its demolition. The parties in the trial court led their evidence and after hearing them and after considering the materials available on the record it was found that the land in question had been proved to the hilt to be a rasta land and not a sahan land of the plaintiff. Accordingly, the plaintiffs suit was dismissed and the counter-claim of the defendants was accepted. The appellate court concurred with the findings recorded by the trial court and has affirmed the conclusion and the decree granted by it in the appellate judgment.
4. The learned Counsel appearing for the appellant has tried to emphasise that since the land in suit has been claimed by the defendants-respondents as a land of rasta, the due leave of the Court as required under Clause (b) of subsection (1) of Section 91 of the Code of Civil Procedure should have been taken by them and since that legal mandatory formality was not gone into, there was no question of passing a decree in the light of the defendants case made in their counter-claim.
5. While replying to the aforesaid arguments raised from the side of the appellant, the counsel appearing for the respondents defendants referred to the provisions of sub-section (2) of Section 91 of the Code and has submitted that the provisions of subsection (1) will not apply in the cases nor would limit the right of the defendants to sue in such matters where they have independent right in the subject-matter of the suit property. The learned Counsel in support of his contention has cited the case law of Sri Ram Singh and Ors. v. Smt. Patti and Ors. and Smt. Bhagwanti v. Mst. Jiuti and Anr. . On the strength of these legal proposition of this Court, the learned Counsel has tried to emphasise that in the present case since the defendants-respondents did possess their independent right in the disputed land by using it as a rasta land since before the time of consolidation operation, their rights for suing plaintiff-appellant in the counter-claim could not be effected under the provisions of Section 91 of the Code of Civil Procedure. It is also submitted by the learned Counsel that this plea of bar against the counterclaim of the defendants was never raised by the plaintiff at the trial stage or at the first appellate stage before the courts below. Therefore, in the light of the case law of Kella Peda Appayya and Ors. v. Lanka Narasimhalu and Ors. AIR 1938 Mad 338, such objections cannot be raised at the second appellate stage and the suit would be held maintainable even if it is found that there is some-implication of bar of Section 91, C.P.C.
6. In order to consider the applicability of Section 91, C.P.C. in the present context, it would be proper to quote the same as below:
91. Public Nuisance.--[(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted:
(a) by the advocate-General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
7. in the present case the plaintiff came with a plea before the trial court that the land in suit is a property of his sahan attached to his residential houses and the defendants did not possess any right to cause hindrance in plaintiffs user of that land. Therefore he prayed for relief of permanent injunction against the defendants. On the contrary the defendants-respondents have pleaded in their written statement that the land in question is a pathway in their use from the time before the consolidation operation and since the plaintiff had erected a wall and, put a channel gate on that land the same are liable for demolition. The courts below found from the evidence available on record that the existence of this pathway was traceable since before the consolidation operation and, therefore, this land was in user of the defendants since that time. The Courts also found that the land is not the sahan land of the plaintiff and the suit was dismissed and the counterclaim has been decreed. It is quite obvious that on the factual contentions duly supported from the evidence, the courts below have recorded their findings with regard to the claim and counter-claim of the respective parties and this Court does not have any occasion for the second appellate court to go into the factual findings so recorded by those Courts.
8. As regards the existence of the pathway which is claimed by the defendants in their case, it is quite clear that this pathway may be a public village pathway also, but at the same time if the user of - the defendants of this path is obstructed in one or the other manner, they do possess an independent right thereinto pass through the same and use this rasta, as its user as such is found obvious since before the consolidation operation which ended about 20 to 25 years before. If sub-section (2) of Section 91 provides that the provisions of sub-section (1) do not limit or affect any right of a party to sue which may exist in his favour independently of the said provision of sub-section (1), the provision of subsection (1) would not come in the way of filing such suit. in the present case if the defendants have been found to be using the land in suit as rasta since before several decades, they do have a right in themselves for such user and if they have filed a counterclaim for that before the Court, such claim cannot be deemed to have any effect of sub-section (1) of Section 91 of the Code of Civil Procedure. The principles Laid down in the aforesaid two cases of Sri Ram Singh and Mst. Bhagwanti (supra) are applicable with full forces in the present case. The second appeal on the aforesaid question, therefore, cannot be admitted.
9. As regards other arguments of the learned Counsel for the respondents - defendants, the application of Section 91(1) of the Code of Civil Procedure was admittedly not pressed by the plaintiff at any point of time before the two courts below before filing of this second appeal. Therefore, the right to raise this point at this stage shall definitely be hit by the law of Madras High Court as Laid down inKella Peda Appayya (supra). The suit would be held maintainable even if the implication of Section 91 of the Code is remotely found to be possible.
10. In the aforesaid view of the facts and circumstances, I do not find any substance in this second appeal as to admit it for further hearing. Therefore, the appeal is hereby dismissed for want of merits.