JUDGMENT Ganga Nath, J.
1. This is a defendants' appeal and arises out of a suit brought against them by the plaintiffs-respondents for an injunction to restrain the defendants from interfering with them in their right of way over a passage described in the plaint. The plaintiffs' case was that this passage had been in use for more than 50 years and they as residents near the temple were entitled to use it. The defendants contended that they had no right of way and the suit was not maintainable. Both the lower Courts have concurrently found that the passage has existed for about 50 years and has been used by the Hindu public in general for this period. They decreed the suit. It has been argued by the learned Counsel for the appellants that a right of way, such as is claimed in this suit, cannot be acquired by a section of the public. His argument is that a public way can only be acquired by dedication, which should be made to the whole public. This argument is without force because the present suit does not relate to a public highway for which the dedication to the whole of the public is necessary. There are three kinds of rights of ways first, there are private rights in the strict sense of the term vested in particular individuals or the owners of particular tenements, and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as the freemen of the city, the tenants of a manor, or the inhabitants of a parish or village. Such fights commonly have their origin in custom. Thirdly there are public rights in the full sense of the term which exist for the benefit of all the King's subjects and the source of these is ordinarily dedication. It is the third class of rights of ways for which the dedication in favour of the whole public is necessary. The right of way claimed in the suit is one which falls under the second class. The concurrent findings of the lower Courts are that the passage in dispute has existed and has been used by the Hindu public for about 50 years. The question that arises for consideration is whether from this long user any right in favour of the plaintiffs to use this passage can be inferred. In Kuar Sen v. Mamman (1895) 17 All. 87 it was observed:
Where it is sought to establish a local custom by which the residents or any section of them of a particular district, city, village or place are entitled to commit on land not belonging to or occupied by them acts which, if there was no such custom, would be acts of trespass, the custom must be proved by reliable evidence of such repeated acts openly done, which have been assented and submitted to as leads to the conclusion that the usage has by agreement or otherwise become the local law of the place in respect of the person or things which it concerns. In order to establish a customary right to do acts which would otherwise be acts of trespass on the property of another the enjoyment must have been as of right, and neither by violence nor by stealth, nor by leave asked for from time to time.
2. This case was followed in Mohidin v. Shivlingappa (1899) 23 Bom. 666. On the principle of the doctrine of lost grant when a right has been exercised by a person or persons for a sufficiently long time openly, uninterruptedly and peaceably it can safely be presumed that it had a legal origin. In Derry v. Sanders (1919) 1 K.B. 223, Bankes L.J. observed as follows:
In view of the rule that a legal origin must be presumed, if such an origin is possible, I think that the length of the user in the present case of the disputed way is sufficient to found the presumption that the necessary custom existed in the manor of Longdon.
3. In East Stonehouse Urban Council v. Willoughby Brothers Ltd. (1902) 2 K.B. 318 at page 332 Channel, J. observed:
I should be glad to be able to decide the case by the doctrine commonly referred to as that of a lost grant that is, the rule which says that on long continued user or possession being proved anything requisite to give that user and possession a legal origin ought to be presumed by the Court. This doctrine has long been known to our law, but in recent times it has been applied more widely and to a greater variety of eases than formerly. It is, in my opinion, a most useful doctrine and enables the Court to avoid interfering with user and possession in cases not covered by the statutes of prescription and limitation, though within the mischief these statutes were intended to remedy.
4. Gale, in his book on Basements, Edn. 11, at page 202 says:
The gist of the principle upon which a lost grant is presumed is that the state of affairs is otherwise unexplained. When the Court finds an open and uninterrupted enjoyment of property for a long period unexplained, omnia presurnuntur rite esse acta, and the Court will, if reasonably possible, find a lawful origin for the right in question.... The practical distinction between prescription at Common law and the doctrine of lost grant was that, where the claim was by prescription the length of enjoyment constituted a title; where, on the other hand, the right was claimed by 'lost grant' the long enjoyment afforded but a presumption of title.
5. As stated above, the findings of the lower Courts are that this passage has been used openly, uninterruptedly and peaceably by people for about 50 years. It can therefore be presumed that this right had a legal origin, and the people of the locality had la right to use this passage. It was urged by the learned Counsel for the appellants that the suit was barred by Order 1, Rule 8. The suit has not been brought by the plaintiffs in a representative capacity, but has been brought by them in their personal capacity for a personal relief. As held in Gulba v. Basanta (1910) 32 All. 284 Order 1, Rule 8 is an enabling Rule and does not debar some of the members of a community from maintaining a suit in their own right. The plaintiffs therefore have a fight to bring the present suit. It will not affect persons who are no parties to it.
6. It was further contended by the appellants that the suit was barred by Section 91, Civil P.C. Section 91 applies to public nuisances which affect public rights, such as a public highway, which come under the third class referred to above. The right of way which is in dispute in the present suit is not such. Ill is a right of way which is claimed by only a Section of the public and belongs to the second class described above. In Brocklebank v. Thompson (1903) 2 Ch. 344 it was observed:
Where there is the intention to allow not the public generally, but merely visitors to or traders with the people of the village, or ways allowed to be used by villagers to go to church or market or the common fields of a village, such ways are not regarded as public ways but private ways.
7. Under Section 91, Civil P.C., in the case of a public nuisance two or more persons who have obtained the consent of the Advocate. General in writing may institute a suit, though no special damage has been caused for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. According to Clause (2), nothing in this Section shall be doomed to limit or otherwise affect any right of suit which may exist independently of its provisions. In the present case the plaintiffs being entitled, in their personal right, to the use of the passage have a personal cause of action to bring the suit. In a similar case in Harish Chandra Saha v. Harish Chandra Chukerbutty (1928) 10 A.I.R. Cal. 622 it was observed:
In our opinion, there can be no question that the suit was for the enforcement of a way of the second class, namely a village pathway, and had no reference to a way of the third class, namely a public highway. This distinction has been overlooked, not infrequently, and Sir Lawrence Jenkins C.J. had occasion to emphasize it again in Kali Charan Naskar v. Ramkumar Sardar (1913) 18 I.C. 67. It is only in the case of a public highway that the question of special damage arises; where the case is one of a village path, there is no question of special damage.
8. The way in dispute is not a public high, way, and Section 91, Civil P.C., does not bar the suit. There is no force in the appeal and it is therefore ordered that it be dismissed with costs.