SABIRER MA Vs. BEHARI MOHAN PAL

JUDGEMENT

(1.) The plaintiffs appeal against the decree of the lower appellate Court dismissing their suit on the ground of non-joinder. In the suit the plaintiffs-claimed the right of pasturage on their own behalf as well as on behalf of the residents of the village of South Enathabad against the defendants on the ground that the defendants had wrongfully obstructed the right which they were in the enjoyment of, with the permission of and amounting to an implied grant by the mirasdar for over 100 years. Defendants 1, 2 and 3, who are now the respondents before us, contended that the portion of the land in suit with which we are now concerned appertained to their taluk and that they were in possession of it. They further denied the plaintiffs right of pasturage over this, land. As regards the objection on the ground of non-joinder of parties the written statement filed on behalf of these defendants refers to the objection in two paragraphs. In para. 3 the objection is taken that the suit is bad for non-joinder and mis- joinder of parties, no details, being given; and it is one of the typical objections that are taken almost in every statement filed in the mofussil along with the objection of limitation, want of cause of action, and the frame of the suit, which objections also have been taken in the present ease. In para. 14 of the written statement these defendants allege that they have no concern with the land from which the plaintiffs are said to have been dispossessed by defendant 5 and, therefore, there has been mis-joinder of parties. The Court of first instance gave a decree to the plaintiffs. The defendants appealed and the Subordinate Judge, without going into the case held, on a preliminary objection, that the suit was bad for non-joinder of parties, and dismissed it. Against that decree the plaintiffs-have appealed before us and it is contended on their behalf that the view taken by the lower appellate Court in the circumstances of the case is erroneous.

(2.) The plaintiffs case is that they are in the enjoyment of this right of pasturage over the land in suit under the implied grant of the mirasdars for over 100 years. They further allege that in such exercise of their right they were obstructed by the defendants in the suit. It appears that, in order to meet the objection upon this ground, the plaintiffs did make some of the landlords parties to the suit; but they did not appear or resists the plaintiffs claim. The defendants ease is that the lands execlusively belong to them. In such a state of the pleadings the Munsif, in our opinion, was right in holding that the question of mis-joinder or non-joinder of parties did not arise. The Subordinate Judge, on the other hand, thinks that a suit of the present nature, namely, a suit for declaration of the right of pasturage over another's land, cannot be maintained in the absence of the owners of the land. We are unable to assent to such a broad proposition. On the plaintiffs case the owners are unnecessary parties. The cause of action for a suit arises only against the persons who are responsible for the infringement of the right. It appears that in the deposition of one of the plaintiffs in a criminal case he mentioned three persons as the maliks of the lands in dispute. We do not know what lands the criminal case referred to. Nor do we think that the fact that they hold under the maliks the land in suit makes it incumbent upon the plaintiffs to make them parties inasmuch as the plaintiffs have come to Court on the allegation that they have been in the enjoyment of the right claimed with the consent of the maliks. Moreover, it does not lie in the mouth of the defendants to take this objection as, according to their case with which they have come to Court the lands in suit do not belong to any one except themselves. The learned Subordinate Judge seems to think that the right of pasturage is an encroachment upon the right of ownership of the land, that in such suits the landlords must he made parties and that the absence of the landlords is fatal to the suits. This, in our opinion, is not the correct view. In the special circumstances of the case this question hardly arises. The parties joined issues on the existence of the right of pasturage and the plaintiffs said that the property appertained to a certain taluk. But for their purpose it did not matter to which taluk it did appertain so long as the right of pasturage was declared. The defendants, on the other hand, claimed the land in dispute as appertaining to their homestead and not to the taluk over which the plaintiffs claim the right of pasturage. Now, if effect is given to the view taken by the lower appellate Court and the maliks are brought on the record as defendants, and if the maliks come and say that they have no objection or that they never objected to the plaintiffs exercising or enjoying the right of pasturage over the land they must be relieved from the suit: and we do not know who would be responsible for their costs. A suit must be determined under Order 1, Rule 9, Civil P.C., according to the relief claimed as between the parties to the suit. To suppose that the execution of the decree against any party to the suit may be obstructed by certain persons interested in the property is to indulge in speculations. If the plaintiffs get a decree against the contesting defendant in this suit and if at the time of enforcement of the decree they are obstructed by the maliks or anybody else, then there would be a fresh cause of action against such persons. But the suit, as at present constituted, does not disclose any cause of action against the owners or against any person interested in the land in suit. In this view the question for decision in the case of Haran Sheikh V/s. Ramesh Chandra Bhattacharjee A.I.R. 1921 Cal. 622, or in the case of Surja Narain Bera V/s. Chandra Bera upon which the lower appellate Court relied does not arise. If it was necessary to consider those decisions we would not be inclined to hold that in the present suit any person other than those who objected to the plaintiffs right of enjoyment was a necessary party.

(3.) As the result of the above considerations this appeal must succeed. The decree of the lower appellate Court is set aside and the case sent back to that Court for trial on the other issues. The appellants are entitled to their costs in this appeal. The costs of the lower Courts will abide the result.