' ABDUL HAMEED DOGAR, J.--- This appeal with leave of the Court is directed against the judgment, dated 30-10-2000 passed by learned Judge in Chambers of the Peshawar High Court, Peshawar, whereby Civil Revision No,278 of 1997 filed by appellants was disposed of and while setting aside the decrees and judgments of two Courts below, the plaint of the appellants was returned being not maintainable for want of sanction as required under section 91 of the C.P.C. However, it was also directed that the appellants would be at liberty to file a fresh suit regarding declaration of the suit-land as graveyard and perpetual injunction against any nuisance by the respondents.
2. Briefly, stated, the facts giving rise to the filing of the instant appeal are that appellants instituted a suit for declaration with perpetual injunction against the respondents in the Court of Civil Judge, Dargai, alleging therein that the land in question is reserved for graveyard. They also claimed that the respondents wanted to raise construction on it unlawfully. The respondents filed written statement and raised legal and factual objections. They also mentioned that the disputed land is not a graveyard. The trial Court framed 13 issues. Both the parties produced their evidence to prove their claims. The trial Court after conclusion of trial dismissed the suit vide judgment and decree, dated 26-5-1996. Feeling aggrieved, appellants filed appeal before the learned Additional District Judge, Malakand which was also dismissed vide judgment and decree dated 15-4-1997. Feeling dissatisfied, appellants invoked the revisional jurisdiction of the learned Peshawar High Court by filing Civil Revision No,278 of 1997 which was disposed of as stated above vide impugned judgment.
3. Leave to appeal was granted by this Court on 3-4-2001 to consider whether the High Court was justified in setting aside the findings of the two Courts below and has correctly interpreted section 91, C.P.C.
4. We have heard Mr. M. Aman Khan, learned Advocate Supreme Court for the appellants and respondent No,1 who appeared in person at length and have gone through the record and the proceedings of the case in minute particulars.
5. Mr. M. Aman Khan learned Advocate Supreme Court for appellants contended that since respondents did not raise the plea of maintainability of the suit under section 91, C.P.C. Before the trial Court, therefore, this plea cannot be agitated at this belated stage. He contended that the learned High Court has erroneously raised issue of maintainability of the suit under section 91, C.P.C. According to him the appellants produced sufficient evidence before the trial Court which shows that the dead bodies of their forefathers are buried in that graveyard since long. He also pointed out that even the witnesses of defendants, namely, D.W.2 Daulat Khan, Khasta Qadar D.W.3 and D.W.4 Gul Zafar Khan have categorically stated that the dead bodies of relatives of Mir Alam and Rasool Shah appellants are also buried in the disputed property which is sufficient to prove that the disputed property is a graveyard. He contended that section 91, C.P.C. Would have no application on account of the rule laid down by the Superior Courts.
6. On the other hand respondent No,1 who appeared in person refuted the above submissions and contended that declaration sought by appellants was regarding graveyard and all graveyards are public property and, therefore, by such relief against any nuisance could only be agitated after getting permission of the Advocate-General as required under section 91 of the C.P.C. Which was not done so in this matter. Thus, the learned High Court has rightly returned the plaint to the petitioners.
7. First of all, in order to reach at correct conclusion of the dispute, it would be appropriate to reproduce section 91 of the C.P.C.
"91. Public nuisance.--- (1) In, the case of a public nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General, 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.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
8. The perusal of the above mentioned provisions of law indicates that appellants were required firstly to obtain sanction of the Advocate-General before filing the suit which apparently they did not do so. Appellants filed the suit in their personal capacity although the relief sought was in respect of the entire community and thus, it was necessary that the suit should have been filed in representative capacity.
' The respondents also raised objection bethre the trial Court regarding the maintainability of the suit in its present form. It is also proved from the evidence that the dead bodies of the relatives of respondents were buried in the said graveyard since long. Even from the statement of D.W.2 Daulat.
Khan, it is also established that the dead bodies of the relatives of appellant Mir Alam and others are buried in the disputed graveyard. D.W.3 Khaista Qadar also stated in his statement that the brother of appellant Mir Alam, father, sons and dead bodies of the relatives of appellant No,3 Rasool Shah are also buried in the disputed place.
9. We have examined the contents of the plaint and concur with the findings recorded by the learned High Court that in substance it is a case of public nuisance rather than of private nuisance.
On that assumption, B sanction prescribed under section 91 of the C.P.C. Was essential and that suit was not competent without it. It was held by this Court in the case Islamuddin and others v.
Ghulam Muhammad and others PLD 2004 SC 633 that in case of public nuisance and private nuisance, injury to the property and to a person would confer jurisdiction upon the Court except that in the case of public nuisance, consent of Advocate-General as required under section 91, C.P.C. Would be necessary under the law, while in case of private nuisance no such consent would be required but the relief for filing a suit for injunction and damages would be available in both kinds of nuisance.
10. For what has been discussed above, we are of the opinion that the impugned judgment does not suffer from any illegality and warrants no interference. Accordingly, appeal being devoid of any substance stands dismissed with no order as to costs.