JULLU RAHMAN SHAIKH Vs. TENEE SHAIKH

JUDGEMENT

(1.) In this case, the District Judge, while finding on all points in plaintiff's favour as regards a right of way which he claimed as an easement in a suit for declaration of such right and for an injunction restraining the defendants from putting up an obstruction on it and also for other consequential reliefs by demolition of a structure which he had already put upon it, has dismissed the suit on the ground that the defendant's landlord had not been made a party to the suit. The District Judge has relied upon the decision of this Court in the case of Haran v. Ramesh Chandra AIR 1921 Cal 622. The question to be considered in this case is the scope, authority and applicability of that decision.

(2.) The learned advocate for the respondent in this appeal has placed before me a decision of this Court in the case of Madon Mohan V/s. Ahshoy Kumar (1910) 5 IC 23, in support of his contention that as a general proposition no suit for declaration of an easement and for other consequential reliefs can proceed unless all persons interested in the land over which suck easement is claimed are parties to the suit. It is this general proposition, and not any particular situation created by the absence of a party in any particular case, that has to be considered in the first instance. The decision, in my opinion, is no authority for such a broad proposition. It is clear that the infirmity of the appeal under the Letters Patent, that arose in that case, was due to some casualty that had happened since the decision of Brett, J., from which that appeal was preferred. The parties were all there, when the appeal was dealt with by Brett, J., but some of them were not before the Court when the appeal under the Letters Patent was heard. All the parties, against whom a declaration of easement was asked for and against whom an injunction was also asked for, were not before the Court and it is obvious that under such circumstances, the appeal was incompetent. The case of Haran V/s. Ramesh Chandra AIR 1921 Cal 622, upon which the District Judge has relied, laid down a proposition that: Where the decree is to be made for declaration of a right of way as a village road over the disputed land and for removal of an obstruction thereon, if it is discovered that a person interested in the servient tenement has not been made a party to the suit, the Court will not proceed to make a decree. The decree, if made, must be infructuous; if a suit is instituted by the absent person for an injunction to restrain the successful plaintiff from executing the decree, there will be no possible answer to the prayer.

(3.) The case had been considered in several later decisions, to some of which reference will presently be made. The case of Madon Mohan V/s. Akshoy Kumar (1910) 5 IC 23 was explained by N.R. Chatterjea, J., in the case of Madon Mohan V/s. Sashi Bhusan (1915) 31 IC 549. It was pointed out that all the servient owners in the case of Madon Mohan Chattopadhya (1910) 5 IC 23 mean all the servient owners who had raised objections to the plaintiff's right of way and against whom there was a cause of action, and do not refer to the owners of all the tenements over which the way passed