RAKHALDAS MUKHERJI Vs. KALIPADA BHATTACHARJI

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs sued the defendants for a declaration of their right of easement in respect of a certain pathway leading from their house in the direction of Maheswarpassa Main Road to the south. This pathway passed to the west of a certain tank belonging to the defendants and that path is said to have been obstructed by defendant 11 acting on behalf of the other defendants. The suit was dismissed by the Court of first instance and the plaintiffs thereupon appealed to the lower appellate Court where their appeal was contested by defendant 11. One of the points taken by the contesting defendant was that the appeal to the lower appellate Court was incompetent, because the appeal had abated as against the heirs of defendant 8. This being the case it was urged that, even if the plaintiffs succeeded in their appeal, any decree which they might obtain would be infructuous. This point however was decided in favour of the plaintiff-appellants and it was held by the learned Subordinate Judge that the appeal was not incompetent, The defendants have now come before this Court on second appeal.

(2.) The learned Advocate for the appellants in this case contends that the lower appellate Court was wrong in holding that the heirs of defendant 8 were not necessary parties to the appeal before the lower appellate Court. The learned Advocate for the respondents, on the other hand, contends that the heirs of defendant 8 were not necessary parties, because defendant 8 had not actually obstructed the plaintiff's right of way and that being the case his heirs were not interested in the subject-matter of the suit. With regard to this argument it appears from the pleadings filed in the first Court that the plaintiffs allegation was that their right of way had been obstructed by defendant 11 acting on his own behalf and also on behalf of the other defendants. It appears to have been admitted that the pathway in question actually belonged to the defendants and was recorded in their names in the record of rights. It further appears that separate written statements were filed in the first Court: one on behalf of defendant 11 and the other on behalf of defendants 1, 2, 5, 8, 9, 10 and 13. In the later written statement the contesting defendants, including defendant 8, strenuously denied the plaintiff's allegations which appeared in the plaint and contested his right to the declaration which he sought. It therefore appears from the pleadings in this case that defendant 8 was not only one of the owners of the alleged servient tenement, but he had also contested the plaintiff's claim. It is also significant that the judgment of the learned Subordinate Judge contains the following finding: Though there is no specific act of obstruction attributed to defendant 8, who appeared in the lower Court and filed a written statement, still the facts stated in the plaint and disclosed in evidence are that defendant 8, along with other defendants, had some hand in the obstruction and was therefore a necessary party and was made a party.

(3.) The general principle which governs the question of joinder of parties in a case of this nature has been stated by Sir Ashutosh Mookerjee in Haran Sheikh V/s. Ramesh Chandra 1921 Cal 622 in which his Lordship made the following observations: The Court will not entertain a suit in which no effective decree can be made in the absence of an interested party .... In a case like the present 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 so made must be infructuous.