MADAN MOHAN CHAKRAVARTY Vs. SASHI BHUSAN MUKHERJI

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of a right of way, for restoration of the path to its former condition and for perpetual injunction. The Courts below have concurred in decreeing the suit, and the defendants have appealed to this Court.

(2.) The first contention raised on behalf of the appellants is that the suit ought to fail, as the owners of all the servient tenements over which the way is claimed, have not been made parties to the suit, and the case of Madon Mohan Chattopadhya v. Akshoy Kumar Baruri 5 Ind. Cas. 23 : 14 C.W.N. 15 is relied on in support of the contention. It is not alleged that the owner of any land other than bhadrar kola over which the way passes, has obstructed the plaintiffs or ever has denied the plaintiffs right. The owners of the land bhadrar kola alone have caused the obstruction, and all the owners of that land have been made parties to the suit. In the case cited above, all the servient owners were not made parties and the learned Judges observed that it was difficult to see how a decree based on an easement in that state of the record could be passed. But "all the servient owners", I think, mean all the servient owners who had raised objections to the plaintiffs right of way and against whom there was a cause of action and do riot refer to the owners of all the tenements over which the way passed. If a way passes over 50 different parcels of land owned by 50 different persons, and the owner of the fiftieth parcel obstructs the way on his own land and the owners of the remaining parcels do not raise any obstruction nor even deny plaintiff s right, I do not think the latter are necessary parties or can be joined in a suit against the person who obstructs the way. The plaintiffs in the present case complain of the obstruction at the site of the bhadrar kola, and all the owners of that tenement have been made parties. They no doubt pray for a declaration of their right of way which is described as passing over the lands of other persons but that is merely descriptive of the way, and they have no cause of action against the owners of the other tenements. One Siva Prasanna, the owner of a tenement over which the way passes, was made a party defendant and he pleaded that there was no cause of action against him. The obstruction being confined to bhadrar kola alone, there was no cause of action against the owners of the other tenements over which the way passes. I am accordingly of opinion that this contention has no force.

(3.) Secondly, it has been argued that the user by the plaintiffs tenants cannot inure to the benefit of the plaintiffs. But the enjoyment by the tenant in possession of the dominant tenement under a claim of right in respect of the dominant heritage may give the owner a prescriptive right. The easement is acquired for the benefit of the dominant tenement, and becomes appurtenant to it into whatsoever hands it passes. See Goddard on Basements, 7th Edition, page 223, Gale on Easements, 6th Edition, page 202. Section 12 of the Easements Act (V of 1882) lays down that an easement may be acquired on behalf of the owner of immoveable property by any person in possession of the same. Although the Act does not apply to Bengal, it shows that the principle is a well-recognised one. It was contended that the servient owner may allow successive tenants in temporary occupation (say for 2 or 5 years each) of the dominant tenement to use a way, but that such user cannot confer a right upon the landlord. But this question does not arise in the present case, as one of the tenants alone is found to have used the way for 25 years. The lower Appellate Court has found that the plaintiffs themselves have been in possession of the dominant tenement for 20 years and that before that their tenants were in possession of the same from 1258 (1851) and that it was clearly established by the evidence that the way had been in existence from beyond that time. The user by the plaintiffs themselves is sufficient, in so far as the suit is based upon Section 26 of the Limitation Act.