Keipasindhu Dinda vs Sristidhar Garu

S.K. Sen, J.—This second appeal arises from a suit for the declaration of the Plaintiffs'' easement right of pathway over the disputed land. The parties both belong to Damodarpur, Mouza, Midnapore district. The homestead of the Plaintiffs is in c.s. plot No. 2870 of that Mouza. The homestead of defenders 1-3 is in c. s. plot No. 2874 to the contiguous each of the Plaintiffs homestead and further to the east to c.s. plot No. 2878 which is the homestead of Defendants 4 to 6; and further east are the land of Defendants 7 to 13. The Plaintiffs claimed that from their homestead in c.s. plot No. 2870 they had all along been using a pathway going towards the east along the southern border of the Defendant''s homestead in c.s. plot No. 2874 which is also the north of the Plaintiffs'' tank in c.s. plot No. 2875; and then going further east along the south of the homestead of Defendants 4 to 6 in c.s. plot) No. 2878, and then turning northwards and proceeding by the east of the homestead of the Defendants 4 to 6 and by the west, of the land of other Defendants so as to reach the public pathway running along the southern bank of the kha in c.s. plot No. 2871. A rough sketch map was annexed to the plaint in order to indicate the pathway claimed. The Plaintiffs alleged that the Defendants 1 to 3 had obstructed the portion of the pathway situated to the contiguous south of their homestead in c.s. plot No. 2874, i.e., the portion Ka-kha of the sketch map, in Ashar, 1357 B.S. (June-July 1950) by spading up the pathway and sowing greens and other vegetables therein. Accordingly, the Plaintiff''s instituted the suit on August 25, 1950, for declaration of their easement right of pathway over the portion Ka-kha and the remaining portion thereof as described above, for a permanent injunction restraining the Defendant from obstructing the Plaintiffs'' user of the pathway, and for a mandatory injunction directing Defendants 1 to 3 to remove the obstruction put by them in the Ka-Kha portion of the pathway.

Defendants 1 to 3, 8 to 12 and 14 appeared and filed written, statements. They denied the Plaintiffs'' right of way over the alleged pathway. There was also a plea of defect of parties, inasmuch as some of the Defendants, viz., Defendants 5, 6 and 13 were minors and their natural guardian did not appear but still the Plaintiff did not take any steps for the appointment of guardian ad litem for them.

The learned Munsif held that the Plaintiffs'' claim to use the disputed pathway as of right had not been established, and the suit was further bad for defect of the parties as there had been no proper representation of Defendant No. 13, as well as of Defendant Nos. 5 and 6. Accordingly, the learned Munsif dismissed the suit.

There was an appeal by the Plaintiffs which was heard by the Subordinate Judge, Second Court, Midnapore. The learned Subordinate Judge held that though minor Defendants 5, 6 and 13 had not been properly represented, they were not the persons who were alleged to have obstructed the pathway claimed by the Plaintiffs, and in the circumstances the suit would not fail for their non-representation; but of course the suit would be dismissed as against them. The learned Subordinate Judge also held on a discussion of the evidence that the Plaintiffs had established that they had been using the pathway as of right and as an easement from time immemorial and that the Plaintiffs'' witnesses were far more satisfactory and reliable than those of the Defendants who purported to say that the Plaintiffs had never been using the disputed pathway. Accordingly, the learned Subordinate Judge allowed the appeal and decreed the suit as against the Defendants other than 5, 6 and 13.

Against that decision the contesting Defendants have filed the second appeal. Mr. A.D. Mukherjee, appearing for the Appellants has urged that the learned Subordinate Judge was wrong in holding that in spite of the non-representation of the, minor Defendants 5, 6 and 13 the suit would not fail as a whole. He has also urged that on merits the judgment of the learned Subordinate Judge was not a proper judgment of reversal.

As regards defect of parties Mr. Mukherjee has relied on two decisions in particular, viz., Madan Mohan Chatterjee v. Akshoy Kumar Baruri (1909) 14 C.W.N. 15 and Haran, Sheikh v. Ramesh Ch. Bliattacharyya (1920) 25 C.W.N. 249. In the first of these cases the head note shows that a decree based on easement cannot be passed when all the survient owners are not parties; and but a perusal of the judgment which is a short one shows that the remark as to defect of parties was only a passing remark, and the Plaintiff by his conduct was held to be not entitled to the relief sought by him. The right claimed by the Plaintiffs was a right to a waterway or hhnl which used to pass by the homestead of the Defendants; as the khal was eroding the Defendants'' homestead the Defendants diverted the khal and most of the villagers accepted the diversion, but the Plaintiffs insisted on their right to use the old channel and so brought the suit. It was held that the conduct of the Plaintiffs was unreasonable. In the other case which arose from a suit for declaration of right of way as the village road and for removal of obstruction there was* an objection that one of the persons interested in the servient tenament had not been made a party, and the objection was upheld and the suit was dismissed. But it appears from a perusal of the judgment that the party who had not been impleaded as a oo-sharer of the tenement where the obstruction had been caused. In other words, he was one of the parties responsible for the obstruction to the alleged village road, though the statement of the law was made in broad term. In the present case Defendants 5, 6 and 13 were not persons who were responsible for the obstruction put in the way of the Plaintiffs'' right of user of the pathway claimed by them.

In many other cases it has been held that it is sufficient in such a suit that the persons who actually obstructed the right claimed by the Plaintiffs should be impleaded as the Defendants. In Mud an Mohan Chakravarty v. Sashi Bhusan Mukherjee (1915) 19 C.W.N. 1211, it was held that a dominant owner had no cause of action against servient owners who had neither caused obstruction nor raised any objection to the exercise of his right of easement; and that in a suit for a declaration of a right of way he was not bound to make parties any servient owners other than those who had obstructed or challenged his right. In Surja Narain Bera v. Chandra Bera (1924) 40 C.L.J. 74 it was held that the cause of action was against those persons only who were alleged to have interferred with the Plaintiffs right. In that case the correctness of the decision in Haran Sk.''s case (supra) was doubted and the decision in Mad an Mohan Chakravarty''s case (supra) was followed. In Bholanath Mondal v. Mohesh. Ch. Bera (1925) 88 I.C. 664 the Plaintiffs brought the suit for the declaration of their right to use a khal as a public pathway. The khal passed through seven villages but some* obstruction had been put by the people of Beluria moiiza and the suit was filed against the people of Beluria mouza in a representative capacity. The objection was raised that the right to use the khal throughout its length had been claimed but the people of other six mouzas had not been made parties. It was however held that the suit was maintainable because the Plaintiffs had cause of action against those who had obstructed the waterway and it was not necessary that owners of lands situated by the side of the khal in all the other mouzas should be impleaded. In Upendra Nath Ghose v. Bhusan Shahana (1925) 88 I.C. 970 the decisio i in Madan Mohon''s case (supra) was followed and it was held that servient owners who had done nothing in the way of giving cause of action to the Plaintiffs were not necessary parties. All these cases go to show that it is sufficient in such a case where an easement right is claimed to implead the persons who have actually offered obstruction. In this particular case the Defendants 1 to 3 are alleged to have offered the obstruction by spading up the portion of the pathway running by the southern side of Itheir homestead. It was, therefore, sufficient to make them parties. It is no doubt true that the Plaintiffs also sought to implead the owners of the other servient tenaments having land or house by the side of the remaining portion of the pathway claimed but it was not necessary to make them parties; and if some of them have been inadvertently left out, as through failure to appoint guardian ad litem the suit cannot fail on that ground.

Mr. Mookherjee has referred to another case Rakhaldas Mukherji and Others Vs. Kalipada Bhattacharji and Others, where Defendant No. 8 who was one of the owners of the servient tenement died and his heirs not brought on the record so that the appeal in the first appeal court abated as against him. It was held that the appeal was as a whole had become incompetent, as Defendant No. 8 was a necessary party. This was however a case where the Defendant No. 8 against whom the appeal abated was one of the owners of the servient tenement and there was a finding that he was one of the persons who had contributed to raising the obstruction in the treak of the pathway claimed by the Plaintiffs. Therefore, according to the general trend of decisions he was a necessary party and the suit could not be decreed in his absence. That case therefore does not go to show that the present suit should also have been dismissed on the ground of defect of parties. I may also refer to another recent case, viz., Kedaruddin Ahmed v. Samsur Mata (1937) 41 C.W.N. 769 where again the decision laid down in Madan Mohan (supra) and Surja Ndrain (supra) was followed and it was held that it was not necessary to add as Defendants those persons who had not participated in causing obstruction to the boat passage claimed by the Plaintiffs.

Mr. Mukherjee has urged that in view of the trend of the rulings, if the Plaintiffs had sued Defendants 1 to 3 only, the) suit would have been held to be maintainable; but as they had sought to implead the other Defendants who were the owners of the other servient tenements situated by the side of the remaining portion of the pathway claimed, and as some of them were not properly represented, the suit should be held to fail as a whole. But once it is found that only Defendants 1 to 3 were necessary parties and the remaining Defendants were not necessary parties but only proper parties it is clear that for the failure of a proper party the suit cannot fail. Accordingly, the objection as to defect of parties must be negatived.

The second point urged by Mr. Mukherjee is that on the merits, i.e., as regards the existence of the Plaintiff''s right to use the pathway claimed as an easement from time immemorial, the judgment of the learned Subordinate Judge is not a proper judgment of reversal. There were 6 witnesses examined for the Plaintiffs and 4 for the Defendants. The learned Munsif discussed the evidence of those witnesses and held for reasons given by him that he preferred the evidence of Defendants'' witnesses. Mr. Mukherjee has urged that the learned Subordinate Judge reversed the finding of the learned Munsif without discussing the evidence of these witnesses.

It is true that the learned Subordinate Judge did not discuss the evidence of witnesses in detail, but it is not correct to soy that he did not discuss the evidence at all. Thus the learned Subordinate Judge pointed out that the Plaintiffs had examined besides the Plaintiff No. 4 Trilocan Garu P.W. 3, Jagabandhu Barik aged 70 years, P.W. 4 Gobinda Patra aged 56 years, P.W. 5 Biswanath Parish aged 60 years and P.W. 6 Notabar Bar aged 38 years in support of their case as to user of the disputed pathway, and the learned Subordinate Judge saw no reason to disbelieve them. The learned Subordinate Judge then gave his own reasons for accepting their evidence. He also referred to the Defendants'' witnesses and pointed out that some of them were officers of the contesting Defendants and some of them belonged to distant places and could not have had any knowledge of the locality. Moreover, the learned Subordinate Judge referred to the report of the Pleader Commissioner who was examined as a witness, being P.W. 1 Pinakdhar Pattanayak, whose report strongly supported the case of the Plaintiffs. In fact the Defendants themselves admitted the existence of the pathway from the point Kha to the point Ja, i.e., they admitted the rest of the pathway except the Ka-Kha portion which had been spaded up. The Pleader Commisisoner in his report mentioned that unless the Ka-Kha portion was also used as pathway, it was not possible to explain the existence of the remaining portion of the pathway. A look at the map would also make it clear that even for the use of the Defendants 1 to 3 the disputed portion Ka-Kha of the pathway is necessary, and it could not be true that they had all along been using that portion as part of their vegetable patch. As regards the alternative pathway of the Plaintiffs suggested by the Defendants, across a ditch in c.s. plot No. 2873 situated to the north of the Plaintiffs'' homestead and then through the homestead of Defendants No. 7 in c.s. plot No. 2871 the Commissioner reported that there was a sanko or bridge made by placing a date palm tree over the ditch and then there was a small foot track across c.s. plot No. 2871 to reach the public pathway on the southern bank of the khal, but the nature of the narrow track showed that it could never have been used as the usual pathway of the Plaintiffs for goina'' out of their house. By inspection of the locality the Commissioner stated that in his opinion the Plaintiffs must have been using the disputed pathway including the Ka-Kha portion. It does not appear that the learned Munsif rejected the report of the Commissioner on sufficient groxmds; the learned Subordinate Judge rightly pointed this out and in the circumstances it cannot be said that judgment of the learned Subordinate Judge was not a proper judgment of reversal.

Mr. Mukherjee has pointed out that while referring to the Plaintiffs'' witnesses the learned Subordinate Judge did not say that their evidence made it clear that the Plaintiffs had been using the disputed pathway for over 20 years which was the period necessary to establish an easement right to a pathway. It is true that the learned Subordinate Judge did not specifically mention 20 years, but he summed up their evidence by saying that their evidence showed that the Plaintiffs had been using the pathway as of right and as an easement from time immemorial. This in our opinion was sufficient. These witnesses, some of them aged 60 to 70 years, had stated that as far back as they could remember, the Plaintiffs had been using the disputed pathway; this would be a period of long over 20 years.

In another way Mr. Mukherjee has attempted to challenge the finding of the learned Subordinate Judge. The sketcli map prepared by the Pleader Commissioner shows that the portion Ka-Kha of the disputed pathway is not in the same straight line as the portion Kha-Ga although in the rough sketch map annexed to the plaint these particular portions are shown as ini the same straight line. Mr. Mukherjee has argued that a comparison of the map prepared by the Pleader Commissioner with the c.s. map and the sketch map annexed to the plaint would show that the Plaintiffs'' tank south of the alleged pathway had eroded the northern bank to a certain extent, and therefore the same strip of land could not have all along been used as a pathway in the disputed section Ka-Kha but there must have been shifting of the western end of the disputed strip further north as the bank eroded; and so there could not have been 20 years user for the existing Ka-Kha section.

Now it is true that a comparison of the Commissioner''s map and the rough sketch map annexed to the plaint shows a different alignment in the disputed Ka-Kha portion but it was denied by the Plaintiffs and their witnesses that there had been actual erosion of northern bank, and it cannot be said that the Defendants and their witnesses gave any evidence to prove the alleged erosion. Moreover, the Commissioner found that there was a date palm tree at least 15 years old situated to the south of the disputed Ka-Kha portion, on the edge of the wafer of the tank, and the Defendants admitted that the date palm tree belonged to the Plaintiffs. There were also some mango trees south of the pathway, although their age was estimated by the Commissioner as less than 15 years. So there could have been no erosion within 15 years before the suit, and there is nothing to show that there was any erosion within 20 years.

Thus as regards the alleged erosion I must hold that there was no evidence to establish it, even though a comparison of the existing alignment of the Ka-Kha portion and Kha-Ga portion might suggest a bit of erosion; but even if there was erosion, ''there is nothing to establish that it took place less than 20 yeara before the institution of the suit and the existence of the old date palm tree to the south of the disputed section of the pathway would rather go against that suggestion. In the circumstances this objection of Mr. Mukherjee must also be negatived.

It is, therefore, ordered that the apgeal be dismissed with costs and the decree of the learned Subordinate Judge be affirmed.

Niyogi, J.

I agree.