1. The objections taken in this case on behalf of the appellants who are the defendants Nos. 1, 2 and 3 are (1) that the plaintiffs have made inconsistent claims in their plaint inasmuch as they claim maliki right and a right of easement at one and the same time and the suit is, therefore, defective; (2) that the suit is defective for want of necessary parties - the objection having been taken in paragraphs 2 and 3 of the written statement; (3) that the learned Subordinate Judge has made a decree in favour of the plaintiffs on the basis of a grant as regards a drain although no grant was pleaded in the plaint and (4) that the learned Subordinate Judge has used in evidence a decree against the defendant No. 1 which is not at all binding upon the other defendants. The suit was brought by the plaintiffs for establishment of their right of passage of water from their dwelling house along a drain for the purpose of discharging it into a khal. It was alleged by them that this was the only passage for preventing their homestead from being waterlogged and they said that the drain existed from time immemorial. They claimed the passage as an easement of necessity and also by prescriptive user. At the same time as has already been said, they also appear to have claimed the ownership of the soil of the drain.
2. With regard to the first objection of the appellants, it may be pointed out that the claim of ownership and a right of casement could only be advanced in the alternative, and it was so held apparently by both the Courts below. The learned Subordinate Judge relying upon the Full Bench case of Naredra Nath Barari v. Abhoy Charan Chattopadhya (1907) 34 Cal. 51 has held against the defendants' contention. I think the lower Appellate Court is right in so holding.
3. The question of defect of parties was raised in the written statement in this, way. It was stated, first, that the plaintiffs' co-sharer one Kumari Debya had not been made a party and, secondly, that some co-sharers of the defendants Nos. 9, 10, 11 and 12 had not been also made parties; and, therefore, the plaintiffs' suit was liable to be dismissed. The appellants rely upon the cases of Madan Mohan v. Akshoy Kumar (1909) 14 C.W.N. 15 and Haran Sheikh v. Ramesh Chandra A.I.R. 1921 Cal. 622 in support of their contention. It cannot be disputed that as a general rule, where a person claims a right of easement on a servient tenement, all the owners of the servient tenement ought to be made parties; as any decree in the absence of a necessary party declaring a right of easement would be infructuous. But I think that there are cases which may well be taken as exceptions to the general rule and, as an instance, the case of Madan Mohan Chakravarty v. Sashi Bhusan (1915) 19 C.W.N. 1211 may be cited. In this case, the defendants other than the defendants Nos. 1, 2 and 3 have been impleaded, it seems because it was alleged that they had entered into a conspiracy with the defendants Nos. 1, 2 and 3 to cause obstruction to the right of the plaintiffs, which the first three defendants did. Although made parties, they never appeared in the suit nor in the lower Appellate Court nor in this Court. It is not stated that any of their co-sharers took any part in obstructing the plaintiffs' right. Had they been impleaded, they would have objected that there was no cause against them. I do not think, therefore, that there is want of necessary parties in this case. Nothing was stated in the Courts below with regard to the alleged co-sharer of the plaintiffs which has not been denied, Presumably, this question was never pressed in the course of the trial. I think, therefore, that the suit is not liable to be dismissed on the ground of defect of parties.
4. With regard to the third ground that the Subordinate Judge was in error in basing the right of the plaintiffs on grant when no such grant was pleaded in the plaint, the answer apparently is that the plaintiffs pleaded immemorial user, and the Court made an inference of grant which might legitimately be made from such user.
5. With regard to the fourth ground it seems that the appellants have not any substantial reason for complaint, because the learned Subordinate Judge has used a decree which is not binding against the defendants other than the defendant No. 1. This decree, however, is admissible in evidence for the purpose of finding the extent of the drain, and I do not think that there is any question of law which can be urged in second appeal.
6. The appeal is, therefore, dismissed with costs.
7. The cross-objections filed by the plaintiffs are not passed. They are dismissed, but without costs.