BHOLA NATH MONDAL Vs. MOHESH CHANDRA BERA

JUDGEMENT

(1.) The case of the plaintiffs in the suit out of which this second appeal arises was that there is khal running along the eastern boundary of their mouza which continues along the northern and eastern boundaries of the neighbouring mouza Beluria and then southwards; and that water from their mouza is discharged through certain sluices from the khal into a river lying further to the east; but that in 1918 the tenants of Beluria made two obstructions: one at the point marked A in the map, obstructing the khal where it entered into mouza, Beluria, and another at the point B obstructing it at its exit from that mouza. The suit was brought by certain representative tenants of the mouza Purusattampur against certain tenants of Beluria as representing all tenants of that village and notices were published under Order 1, Rule 8, in the local newspaper on the spot and elsewhere.

(2.) The learned Munsif found in favour of the plaintiffs and gave a decree on certain terms. He found that the natural drain-age of the village was through this khal and that the tenants of Beluria had wrongfully obstructed it at points A and B.

(3.) On the case coming up in appeal the only point decided is the question whether the suit could proceed owing to defect of parties. The case set up was that though no doubt the people of Beluria were the people who were said to have put up the obstructions, the plaintiffs had asked for a declaration that the whole khal must remain open and not only through the 7 mouzas lying successively to the south The learned Additional District Judge accepted this contention and dismissed the suit on the preliminary ground that the suit was bad for defect of parties He held that the principle laid down in the case of Haran Sheikh V/s. Ramesh Chandra Bhattacharjee A.I.R. 1921 Cal 622 was applicable to the case and did not follow the observations in the case of Madan Mohan Chakravarty V/s. Sashi Bhusan Mukerjee [1915] 19 C.W.N. 1211. The facts of this case, according to the pleadings are that the people of Beluria alone had put up these obstructions at points A and B and no obstruction had been made in the khal at any point further south where it passed along the east side of the other mouzas; and the prayer in the plaint was for a declaration of prescriptive and natural right of easement and easement of necessity by cutting these bunds so as to discharge water through the khal as delineated in the map, and for a permanent injunction restraining the tenants of Beluria from putting any further obstructions in the khal. No relief, therefore, appears to us to have been sought again it the tenants of any of the other mouzas lying further to the south. This case on its pleading is, therefore, in our opinion, clearly distinguishable from the case of Haran Sheikh V/s. Ramesh Chandra Bhattacharjee A.I.R. 1921 Cal 622. In that case one of the persons interested in the servient tenement not having been made a party it was held that his nonjoinder as a party to the suit was a fatal defect in the case. But in this particular case no relief is asked for in the plaint against any one else except the tenants of Beluria. It is remarked in the case of Madan Mohan Chakravarty V/s. Sashi Bhusan Mukerjee [1915] 19 C.W.N. 1211 that servient owner means the servient owner who has raised objection to a plaintiffs right against whom there is a cause of action and does not refer to the owners of all the tenements over which a way passes. In our view, therefore, it was not necessary to make the tenants of the other mouzas to the south parties in the particular litigation.