Judgement Appeal (No. 25 of 1923) from a decree of the High Court (May 30, 1921) reversing a decree of the Second Subordinate Judge of Aligarh (September 10, 1918). The appellants, as representing the entire Shia community of Aurangabad, filed the suit against the respondents, as representing the Sunni community in that town. By their plaint the appellants prayed for "A declaration that the plaintiffs, along with other Shia residents of qasba Aurangabad, are entitled to stay and perform the matam in a circle at the public thoroughfare at the back of the newly built Jama Masjid and that the defendants have no right or title to offer obstructions to the same or to stop it at any time." They further prayed for an injunction restraining the defendants from interfering or obstructing them while they were acting in the manner above stated. There was also a claim for Rs.200 for damages done to articles of the "majlis," and for "mental pain sustained." The defendants by their written statement pleaded that the suit was not maintainable, and denied that any religious procession of the Shias had passed at the back of the mosque until recently. The following issues, among others, were framed— (6.) Whether the user of the road as alleged by the plaintiffs amounts to a nuisance for the Sunni public using the mosque? (7.) Whether the user alleged by the plaintiffs amounts to an obstruction to the public in the use of the thoroughfare, and whether, therefore, the claim is not sustainable? (8.) Whether the user alleged is likely to cause obstruction to the persons intending to use or using the mosque, and whether, therefore, the suit is not maintainable? (9) When was the mosque in question built? (10.) How long, if ever, have the Shias been using the road in question in the manner alleged? Does the user give them any right to continue it? (14.) Whether the plaintiffs, as members of the public body, have any right to perform the ceremonies mentioned in the plaint near the mosque as contended for by them ? The trial judge held that the suit was maintainable. He decided issues (6.), (7.) and (8.) in the plaintiffs favour. As to issue (9.) he found that the present mosque was only fifteen or sixteen years old, but that a smaller mosque had previously existed on the site. The trial judge held that the suit was maintainable. He decided issues (6.), (7.) and (8.) in the plaintiffs favour. As to issue (9.) he found that the present mosque was only fifteen or sixteen years old, but that a smaller mosque had previously existed on the site. As to issue (10.), he stated that the defendants no longer denied that the procession used to pass through the lane, but they alleged that the music used to stop in the vicinity of the mosque he found, however, that that was now so, that interference by the Sunnis was a new matter, and that other religious processions passing the mosque had not been interfered with. With regard to issue (14.), he said "The procession stops for five to seven minutes after travelling a short distance for reciting the mersia or performing the matam. Every Indian knows of such processions. In the Hindu processions bhajan 5 is sung at short halts made after travelling short distances. Nobody would regard such an user of the road as unjustified. The right to stop on the road for the object of the procession would be included in the right to carry the procession through the streets." He found that no damages had been proved. The Subordinate Judge made the following decree "It is declared that, subject to the orders of the local authorities regulating the traffic, the plaintiffs have got the right to make short stays on the road at the back of the Juma Masjid at Aurangabad for the performance of the matam. The defendants, specially those named in the plaint, are hereby prohibited from making interference in the performance of matam. " The defendants appealed to the High Court, and the plaintiffs filed objections claiming that they were entitled to the declaration made, but omitting the words; "Subject to the order of the local authorities regulating the traffic." The High Court (Tudball and Sulaiman JJ.) set aside the decree and dismissed the suit. The learned judges expressed the view that " a community has a right to go in procession through a public street subject to the control of the magistrates and to the use of the public thoroughfare in a reasonable and usual way," but they were of opinion that the right claimed in the suit was one to block the right of passage in an unreasonable manner. They pointed out that the plaintiffs right of passage along the street in procession was not in dispute. They dismissed the suit. 1924. May 27. Be Gruyther K.C., Wallach and Fatehsingh for the appellants. Sir George Lowndes K.C. and Abdul Majid for the respondents. In addition to the cases referred to in the judgment of the Judicial Committee, reference was made for the appellants to Sambalinga Murti v. Vembara Govinda Chetti ( 1857, Mad. S.D. A. 233.), also to Herklots Manners and Customs of the Mussulmans of India, 2nd ed. ( 1863), pp. 112, 114; Ross Hindu and Muhammadan Feasts, p. 106; Bucks Faiths, Fairs and Festivals of India, p. 196. Nov. 13. The judgment of their Lordships was delivered by LORD DUNEDIN. In the town of Aurangabad there are two sects of Mahomedans, the Shias and the Sunnis. These sects worship in the month of Muharram in a different manner. In particular the Shias conduct a procession along with various emblems, which it is not necessary to specify, all alluding to the martyrdom of Hasan and Hosain, and as the procession proceeds they from time to time perform a ceremony called "matam," which means that they stop for a little and wail. The Sunnis also revere the martyrdom of Hasan and Hosain but worship in a different way. In the town of Aurangabad from time immemorial the procession of the Shias has passed along a certain public road which passed behind the back of a mosque used by the Sunnis. In 1916 for the first time the Sunnis interfered with the procession and alleged that it disturbed their devotions in the mosque. Modus vivendi was arranged for a time. In order to prevent disturbances for the moment the magistrates passed a regulation for the year in question that there should be no performance of "matam" within a certain distance of the mosque until the procession had passed a certain distance beyond the mosque. A similar arrangement was made in 1917. To bring matters to a crisis the Shias then, in 1918, raised an action in the Court of Aligarh, asking for a declaration of their right to go in procession and use "matam" and for a perpetual injunction against the Sunnis again interfering with them. They also asked for damages. The action was opposed by the Sunnis. To bring matters to a crisis the Shias then, in 1918, raised an action in the Court of Aligarh, asking for a declaration of their right to go in procession and use "matam" and for a perpetual injunction against the Sunnis again interfering with them. They also asked for damages. The action was opposed by the Sunnis. The District Judge granted the declaration that they craved, but subject to any order that from time to time the magistrates might make, and refused damages. Appeal was taken to the High Court by the defendants, and the plaintiffs raised a cross-appeal asking that the rider as to the power of the magistrates might be deleted. The High Court reversed the judgment and dismissed the suit, holding that the plaintiffs had not made out any cause for a declaration. They treated the suit as a prayer to be allowed to block absolutely the highway, which, their Lordships considered, could not be allowed. Leave was asked to appeal to the Privy Council and was granted by the Chief Justice and another judge who had not heard the appeal, and it is abundantly clear from the observations which were made by them that they thought the- question one of great importance. The case seems to their Lordships to raise for authoritative decision the question as to the right of religious processions to proceed along the roads in India, practicing their religious observances, and the decided authorities in India are certainly conflicting. The first question is, is there a right to conduct a religious procession with its appropriate observances along a highway? Their lordships think the answer is in the affirmative. The first question is, is there a right to conduct a religious procession with its appropriate observances along a highway? Their lordships think the answer is in the affirmative. In Parchasaradi Ayyangar v. Chinnakrishna Ayyangar (I.L.R.5 M.304,309.) the law is stated thus " Persons of whatever sect are entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace." In Sudram Chetti v. The Queen (I. L. R. 6 M. 203.), before a Full Bench, the position was maintained, and it was further laid down that the worshippers in a mosque or temple which abutted on a high road could not compel the processionists to intermit their worship while passing the mosque or temple on the ground that there was continuous worship there. Turner C. J. says (Ibid. 217) "With regard to processions, if they are of a religious character, and the religious sentiment is to be considered, it is not less a hardship on the adherents of a creed that they should be compelled to intermit their worship at a particular point, than it is on the adherents of another creed, that they should be compelled to allow the passage of such a procession past the temples they revere." In Sadagopachariar v. Rama Rao (I. L. R. 26 M. 376.) in a civil case the game view was taken, but in a criminal case in the same volume, Vijiaraghaya Chariar v. King-Emperor (( 1903) I. L. R. 26 M. 554.), two judges held that to use a highway as a place of worship was not legitimate. One judge, who had taken part in the former case, dissented and, at a former hearing, the Chief Justice had also dissented. The first of these cases came on appeal to this Board (( 1907) L. R. 341. A. 93.) and no doubt was there thrown on the right of religious worship in a highway. Two other questions have, however, emerged. In several cases one sect claimed the exclusive use of the highway for their worship. This has been consistently refused. The first of these cases came on appeal to this Board (( 1907) L. R. 341. A. 93.) and no doubt was there thrown on the right of religious worship in a highway. Two other questions have, however, emerged. In several cases one sect claimed the exclusive use of the highway for their worship. This has been consistently refused. The other question, which goes deep into what ought to be done in the present case, is this Does a civil suit lie against those who would prevent a procession with its observances? Here there is an obvious discrepancy between Bombay and Madras, and Calcutta upholds Madras. The leading Bombay authority is Satklu Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga (I. L. R.2 B. 457.) Westropp C.J. and Mellvill J. This was a suit by certain Mussulmans who carried tabuts in procession along a public road. They were disturbed in so doing by Mussulmans of a rival sect. The headnote sets forth the judgment accurately "Held, in special appeal, that the plaintiffs could not maintain a civil suit in respect of such obstruction unless they could prove some damage to themselves personally in addition to the general inconvenience occasioned to the public. The mere absence of the religious or sentimental gratification arising from carrying tabuts along a public road is not any such particular loss or injury as would be sufficient, according to English and Indian precedents, to sustain a civil action." The judgment really proceeds entirely on English authorities, which lay down the difference between proceedings by indictment and by civil action. In their Lordships opinion such a way of deciding the case was inadmissible. The distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India. That judgment was followed, as was natural, in Kazi Sujaudin v. Ma Dhavdas (I. L, R. 18 B. 693.) by two judges. Nevertheless in the next case, Baslingappa Parappa v. Dharmappa Basappa (I. L. R. 34 B. 571.), Sir Basil Scott C.J. and Batchelor J. disregarded the authority of their own Court in Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga (1), and pronounced a judgment which, without saying that it overruled that case, clearly did so. The lower Court had followed Satku Valads case (1), and dismissed the suit. The lower Court had followed Satku Valads case (1), and dismissed the suit. The headnote is " On second appeal by the plaintiffs held, reversing the decree and allowing the claim, that the suit was not for the removal of a public nuisance but for a declaration of the right of an individual community to use a public road." The Madras cases already cited were all cases (except the criminal one) in which declarations were sought and either granted or, if asking for exclusive right, refused, but in none of them was the idea entertained of special damage other than the obstruction of the procession being needed. In Mohamed Abdul Hafiz v. Latif Hosein (I. L. R. 24 C. 524.) the Madras view was taken. The headnote is "A suit for declaration of right to carry religious emblems in a procession through the streets of a village and for damages for preventing the plaintiffs from doing so lies in the Civil Court." Their Lordships are of opinion that the views of the Madras Courts are right and that the Bombay judgment is wrong. They think that the appellants are entitled to the declaration granted to them by the District Judge but propose to add to it, after the word "traffic" (Supra, p. 63.), the words "to the magis trates directions and the rights of the public." If their Lordships were simply to dismiss the appeal the effect would be misunderstood in India. Every different sect or religion, whose places of worship are upon the routes where the pro cessions of those with whom they do not agree pass, would appeal to the judgment as settling that the functions of the procession should cease as it passed them. But if the declaration as made by the District Judge is granted the magistrates will still be able to make any arrangement the choose, and, if they choose, to repeat the order that forbad doing "matam" within a certain distance of the mosque. That order would be an order passed in respect of special circumstances, not a general pronouncement as to rights. That order would be an order passed in respect of special circumstances, not a general pronouncement as to rights. Their Lordships will, therefore, humbly advise His Majesty that the appeal Should be allowed and the declaration granted as above indicated, and that the appellants should have the costs of the appeal before this Board, but inasmuch as in the Courts below they asked that there should be no declaration as to the magistrates right, no costs should be allowed to either party in the Courts below.