N.H. Bhatt, J.
1. An interesting question of law has arisen in this revision application filed by the original defendants Nos. 2 to 10 of the civil suit No. 102 of 1974 pending in the court of the Civil Judge (J.D.) Bardoli in Surat District.
2. A few facts require to be stated in order to highlight the controversial question raised before me in this application. The respondent Nos. 1 and 2 are the original plaintiffs of that suit. The said suit was filed by these respondents Nos. 1 and 2 against one Gokalbhai Narottambhai and the present (sic) petitioners for a declaration of their easement right of way for the purpose of human passage and passage for cattle and for the purpose of carrying agricultural implements. It was alleged in the plaint, which was placed at my disposal by Mr. Bhatt for the petitioners, that for the purpose of going to their fields S. Nos. 47, 53, 54 and 65, they had a right of way of all sorts, through the field S. Nos. 58/3 belonging to the defendants Nos. 1 to 4 and the defendants Nos. 8 to 10 and also through the field 3 No. 58/2 belonging to the defendants Nos 1 to 4 and through S. No. 43 belonging to the defendant No. 5. During the pendency of the suit, the original defendant No. 1 Gokalbhai Narottambhai, the brother of the petitioners Nos. 1 to 4, died. His heirs were not brought on record within time and, therefore, under Order 22 Rule 4, Sub-rule (3), the suit was declared to have abated against the said deceased defendant No. 1. The present petitioners Nos. 1 to 9, the original defendants Nos. 2 to 10, however, requested the court to dismiss the whole suit on the ground that it had become an infructuous and incompetent suit. The learned trial Judge did not agree and that is why the petitioners have moved this Court by filing this revision application, complaining that the learned trial Judge is hugging to the jurisdiction to try the suit inspite of his having none and that such an attempt on the part of the trial Judge is quite likely to cause irreparable injury to the petitioners and that the order, if it had been made in favour of the petitioners, would have finally disposed of the suit.
3. It is to be noted once for all that the suit cannot be technically said to have abated against these petitioners, though that was the nomenclature employed by the petitioners before the learned trial Judge. However, as far as their ultimate prayer is concerned, it has not got any bearing whatsoever.
4. Mr. Bhatt, the learned advocate for the petitioners, urged that in the absence of the defendant No. 1, who was alleged to be the point owner of the two fields, S. No. 58/2 and 58/3, no effective declaratory decree for easement right and no effective decree of injunction could be passed. If Mr. Bhatt's submissions are accepted, it would follow a fortiorari that the whole suit will be required to be dismissed. So, the moot question that falls to be determined in this application is whether in the absence of the defendant No. 1, the declaration sought for and the injunction prayed for could be or could not be granted. If the answer is in the affirmative, the order of the learned trial Judge would stand, otherwise, it would fall through.
5. The true test in such cases is whether the decree sought for can be said to be a decree joint and indivisible. Ordinarily and prima facie it would strike one that as the declaration is sought for in respect of the property jointly held by the defendants Nos. 1 to 4, a joint and indivisible decree is claimed. However, if we examine the question dispassionately and on first principles, it would appear that it is not so. The two survey numbers are said to be belonging to the four brothers, who were said to be aged 60,50,45 and 40 in age. As far as the S. No. 58/3 is concerned, the defendant No. 1 to 4 owned it jointly with the defendants Nos. 9 and 10 who are Kunvarjibhai Parshottambhai and Hirabhai Parsho-ttambhai. The defendants Kuvarjibhai and Hirabhai obviously cannot be said to be full brothers of the defendants Nos. 1 to 4. In this view of the matter, though the plaint does not specifically so, it is reasonable to believe that these survey numbers are said to be belonging to these defendants Nos. 1 to 4 prima facie as tenants-in-common and not as joint tenants. In other words, they are to be presumed to have specific but undivided shares in the properties, which would devolve on their death by way of untestamentary deposition on the concerned man's heirs and legal representatives and will not pass by survivorship. On this assumption, the question posed by me above is required to be examined.
6. In the absence of deceased Gokalbhai Narottambhai, the plainiiffs could well claim a declaration that they have got an easement right of way through the fields jointly owned by those defendants with Gokaldas Narottambai. In this case, of course, it appears that deceased Gokalbhai Narottambhai and the petitioner Nos. 1 to 3 and other co-owners were interested in denying the plaintiffs' right, but when we examine the question from the technical point of view, there may be a case where out of a number of co-owners, some co-owners may be interested in denying the right and others may not be so interested or may be lukewarm in their approach. The question in that case would certainly arise as to whether a declaratory suit against some of the co-owners would lie or not. In such cases, the plaintiff may seek a declaration against those who challenge his right, but may not do so against others. This possibility would, therefore, lead us to the proposition of law that a declaratory prayer need not necessarily be sought for against all the co-owners or against all tenants in-common as a matter of the first principle. In a suit for partition, or in a suit for accounts amongst partners, no legally conceivable decree could be. passed because, of necessity, a decree would be required to be passed in respect of a person, who is not a party. That is why it is stated that in a suit for partition of the properties commonly owned by certain persons or for a suit for accounts of a partnership firm, all persons interested are necessary parties. That cannot be necessarily said in respect of a declaratory suit for easement rights.
7. As far as the prayer for injunction is concerned, the position is simple. As injunction is sought for only against tense who are alleged to have obstructed. It is well nigh possible that some co-owners might be interested in obstructing the owner of the seventh heritage and some might not be. The cause of action for an injunction, therefore, is individual one and not a joint and indivisible one. In this case, the difficulty had arisen only with respect to the declaratory relief, which was a substantive relief in this case. On the anal sis made by me above, it appears that technically speaking a declaratory suit can be against some of the co-owners and, therefore, a decree must not necessarily be passed against all the co-owners or against none and, therefore, a suit of the nature ordinarily can lie against some of them.
8. As far as the practical difficulty in the way of the plaintiffs is concerned, they might be unsurmountable because the heirs of Gakalbhai Narottambhai, who are wrongly impleaded as parties to this revision application appear to be on cudgels with the original plaintiffs. Even if the plaintiffs succeed in getting the declaration and injunction sought for, they may not succeed in getting their right duly executed, but that is a matter, not relevant for my consideration at this stage. I am concerned with a short technical question as to whether a prayer for a declaration in respect of a right of way against three out of four co-owners can be legally granted or not. Neither at law nor at logic, there is anything making it impossible to grant an effective declaration.
9. Mr. Bhatt for the petitioners invited my attention to the judgment of the Gujarat High Court in the case of Ishwarlal Girdharlal Joshi v. The State of Gujarat and Anr. 8 G.L.R. 729 and the judgment of the Supreme Court in the case of Ramagya Prasad Gupta and Ors. v. Murli Prasad and Ors. : 1SCR63 , which in its turn reiterated the exposition of law by the Supreme Court in the case of State of Punjab v. Nathu Ram : 2SCR636 . All these three cases are cases of appeals. In the two Supreme Court judgments, it has been emphasised that there the appeal abates wholly or it becomes infructuous because of the death of one of the respondents whose heirs are not brought on record in time is essentially a question of fact to be determined on the facts and circumstances of each case. In the case on hand, the facts are as analysed by me above. On that ground, I have found that if the plaintiffs had initially filed a suit only against the defendants, who are on the record of the trial Court, both for the declaration of their right of way through the survey numbers in question and for injunctions, the suit would have been competent. If it be so, I have to hold technically that absence of heirs of one of the co-owners of those fields through which the right of passage is claimed by the plaintiffs does not render the suit as incompetent and infructuous, though the practical utility of the decree expected by the plaintiffs in the suit might be rendered illusory, if the heirs of the original defendant No. 1 persist in their denial of the rights claimed by the plaintiffs. However, this is a matter to be examined at the stage of execution. The possibility of the heirs of the original defendant No. 1 being brought to reconciliation also cannot be ruled out and in that event the decree may be executed against the present defendants Nos. 2 to 9.
In above view of the matter, I confirm the order passed by the learned trial Judge and reject this revision application. Rule is accordingly discharged with no order as to costs.