JUDGMENT

P.C. Banerji, J. - In the City of Agra there is a Mohalla called Mohalla Poorabyan, in when there is a platform. To the west of that platform is the house of the defendant and between the house and the platform there was a wall in which, according to the lower Appellate Court, there was a niche which was worshipped by some residents of the Mohalla. The present suit was instituted by two persons residing in that Mohalla, one of whom stated that her father, one Pooran, had made a dedication of the land on which the platform exists to a deity sailed Bhuinya and that the platform had been built on the land and had been need by all the residents of the Mohalla, The other plaintiff, who is a resident of the Mohalla, also made statements to the same effect. Their complaint is that the defendant has set up a door in his wall and has also opened out a portion of the wall which separated his house from the chabutra and has thereby opened a passage over the chabutra. They accordingly instituted the present suit for an injunction restraining the defendant from passing over the chabutra. They also claimed to have the wall alleged to have been pulled down by the defendant re built. The plaintiffs distinctly stated in their plaint that they instituted the suit under Order I, Rule 8 of the Code of Civil Procedure, on behalf of all the residents of the Mohalla who are interested in the platform. With the plaint they filed an application asking for leave, under Order I, Rule 8 of the Code of Civil Procedure, to bring the suit on behalf of all the residents of the Mohalla. The Court granted the leave asked for and made an order to the effect that an advertisement should be made giving notice of the suit apparently to all persons concerned. As a matter of fact no notice was issued and no advertisement was made as directed by the Court. The lower Appellate Court says that this omission was due to the negligence of the officials of the Court. In the Court of first instance, however, no question was raised by the defendant on the ground that no notice was issued. The defence was that the platform and the site of it belonged to the defendant as his own private property and that he was entitled to use it for passage into his own house. The first Court proceeded to try this point and finding for the plaintiffs, made a decree against the defendant. On appeal the Question was raised whether the omission to issue a notice was fatal to the suit. That Court held against the defendant on the point, and on the merits agreed with the Court of first instance that the platform was used by the residents of the Mohalla as a shrine and was in fast a shrine to which the defendant had no title. On second appeal the question was again raised that inasmuch as notice was not actually issued as required by Order I, Rule 8, the suit ought to have been dismissed. The case has been referred to a larger Bench by the learned Judge before whom the second appeal came on for hearing, and he apparently was of opinion that there was some conflict between the ruling of the Full Bench of this Court in Jawahra v. Akbar Husain 7 A. 178 : 1884 A.W.N. 324 : 4 Ind. Dec. 390 (F.B.) and Gulba v. Basanta 32 A 284 : 5 Ind. Cas. 547 : 7 A.L.J. 233. These two cases have also been referred to in the argument before us and, in my opinion, the question we have to decide in this appeal was not considered and decided in those two cases. In the Full Bench case the real point which was decided was whether the plaintiffs could maintain the suit, and it was held that they were competent to do so in their own individual right and the question of their representative capacity was not determined. The same was the case with the other ruling mentioned above, in that case also it was held that Order I, Rule 8, which corresponds to Section 30 of the former Code of Civil Procedure, did not apply to that case and that the plaintiffs were entitled to maintain this suit in their own right. There is, there