SURJA NARAIN BERA Vs. CHANDRA BERA

JUDGEMENT

(1.) This is an appeal against an order of remand made by the Subordinate Judge of Midnapur, dated the 21 February, 1923. The plaintiffs brought the suit for a declaration of their right to fill up a hollow in their own land, and to construct a chatal or pavement thereon, and for compensation from the defendants for damages caused to the said pavement. The defendants stated that plaintiffs, by constructing the pavement, had obstructed the flow of water to which they and the residents of 5 other villages had a right of easement. One of the pleas raised in bar was that the suit was bad for defect of parties, as all the persons interested, namely, the residents of the five villages previously referred to had not been made parties to the suit.

(2.) The Court of first instance gave effect to this plea and dismissed the plaintiffs suit. On appeal the learned Subordinate Judge remanded the case, being of opinion that the said persons were not necessary parties to the suit.

(3.) The defendants have appealed, and it is argued on their behalf that the suit is not maintainable in the absence of all persons interested in the right of easement over the plaintiffs land, as any decision in the case in the plaintiffs favour would affect them also. I do not think that there is any substance in this contention. In order to determine whether the suit is maintainable and whether certain parties are necessary parties or not, it is necessary to ascertain the nature of the plaintiffs case as set out in the plaint, The plaintiffs allege that, as proprietors of the soil, they have the right to fill up the hollows and to make the chatal or pavement, and by doing so, they assert, that, they have not obstructed the flow of water in any way, They admit that the defendants have the right to the flow of water over the plaintiffs land. But they allege that they have not interfered with that right. They seek a declaration of their proprietary right against the persons who denied it in a criminal case before the institution of the present suit. Further the plaintiffs main cause of action seems to be the recovery of damages. The suit, to my mind, is one for the recovery of damages, which is valued at Rs. 400, and as this claim for damages depends upon the plaintiffs right to build the pavement, they have asked for a declaration of the existence of such a right and this declaration is valued at Rs. 45. Having regard to the frame of the suit, therefore, all other persons who may be interested in the easement are not to my mind necessary parties. If they are made defendants in the suit, they may rightly say that they have been unnecessarily made parties as there is no cause of action against them, since they have not denied the plaintiffs right. The suit is a simple one for the declaration of a right against persons who have denied it, and for damages arising from their wrongful action, In my judgment the suit has been rightly framed.