JUDGMENT
1. The right claimed by the plaintiff is not in controversy in this appeal. The learned counsel for the defendants respondents has not contested his right. The case which he set up is that the lower appellate Court was right in rejecting the plaintiff's claim on the ground that at the date of the institution of the suit, no cause of action existed against his client as there had been no infringement or threatened infringement of the plaintiff's right by them. The learned District Judge held that the plaintiff's suit was bound to fail on this ground and also on the ground that, by a document dated the 23rd of January 1908, to which was affixed the thumb impression of the plaintiff, the plaintiff took a solemn vow that he would not resort to any litigation in respect of the slaughter of cows and, therefore, it was not open to him to institute the present suit.
2. It appears that proceedings were taken by the District Magistrate against certain Muhammadans under Section 107 of the Code of Criminal Procedure in connection with the intended sacrifice of a cow on the Bakr-Id and that six men were committed to Jail in connection with this transaction. The plaintiff and some other Muhammadans signed the document which is referred to and in it they promised that they would not create any quarrel or disturbance or litigation in connection with the sacrifice of cows, and they also promised that the six men who were in jail also would not raise any quarrel, or disturbance or litigation. It is difficult to understand how this document came to be held by a Judge of experience as a bar to the suit instituted by the plaintiff. It is a mere nudum pactum of no legal force or efficiency. This Mr. Wallach did not dispute.
3. On the other ground on which the suit of the plaintiff's was dismissed there is more to be said. The plaintiff in a suit for declaration of abstract right cannot sue until there is some infringement or threatened infringement of his right. He must allege and prove a denial of his right before his plaint is filed; the cause of action must be antecedent to the suit, and not subsequent. Section 42 of the Specific Relief Act enables a person who is entitled to any right as to any property, to institute a suit against any person denying or interested to deny his title to such right. The defendants in this case were not interested in denying the plaintiff's title in the sense in which the word interested is used in the section and it, therefore, lay upon the plaintiff to prove that they did deny his title before his suit was instituted. To establish this, reliance is placed upon a document of the 12th of January 1908, which was signed by the defendants. This purports to be an agreement between some representative Hindus and representative Muhammadans where by the Hindus under took to stop the playing of musical instruments and the blowing of the conch, et cetra, during the festivals or in the procession of gods so as to avoid the giving of offence to the Muhammadan community. The Muhammadans on their part declared that in Kasha Bahadur Ganj there had never been any dispute regarding the slaughter of cows and there should not in future be any dispute about it. We do not think that this document can be interpreted as a denial of the title of the plaintiff so as to enable him to maintain his suit for a declaration of his title. We think that the learned District Judge was right in dismissing the suit upon this ground.
4. It is to be regretted that more tolerance does not prevail.
5. We may here repeat what was said by a Bench of this Court, of which one of us was a member, in the case of Shahbaz Khan v. Umrao Puri 5 A.L.J. 151 : A.W.N. (1908) 64 : 7 Cr.L.J. 381 : 30 A. 181, namely, "It is in the highest degree desirable that the members of the different religious persuasions, who are to be found in this country, should, in the observance of their religious ceremonies as well as in the exercise of their lawful rights, show respect for the feelings and sentiments of those belonging to other persuasions and avoid anything calculated to irritate the religious susceptibilities of any class of the community".
6. We dismiss the appeal but without costs in view of the rejection of the plaintiff's suit by the learned District Judge on the ground not merely that there was no cause of action proved but also that it was barred by the agreement of the 23rd of January 1908.