B.K. Mukherjea, J.
1. This appeal is on behalf of some of the defendants who are members of Kalikacha Union Board, and the suit out of which it arises was commenced by the plaintiff for establishment of easement rights of a boat passage and a passage for outlet of water over the disputed strip of land which is described in Sch. 1 of the plaint. There was also a prayer for removal of obstruction which was alleged to be placed on the disputed land by the members of the Kalikachha Union Board in collusion with the other defendants in the suit. The plaintiff is admittedly a fractional owner of a tank which is C.S. Dag No. 3396. There is a jan or outlet for surplus water of this tank at its south west corner which runs southward and meets the khal in C.S. Dag No. 3382. It is said that the plaintiff and his predecessors had been from time immemorial, using this jan as an outlet for the water of the tank as well as a boat passage for coming from the khal to his land and homestead, continuously, peaceably, openly, as of right and as an easement, and thereby acquired the aforesaid easement rights both under prescription as well as by grant. In the latter part of Chaitra 1338, the members of the Union Board, it is alleged, in concert with the other defendants had filled up the jan with earth and thus obstructed the outlet and the boat passage. A large number of pleas were taken by the contesting defendants who are defendants 1, 2, 12 and 13. The material contentions raised were that the suit was bad for nonjoinder of necessary parties and for want of notice under Section 64 of the Village Self-Government Act, that the action of the Union Board was bona fide and was protected, under Section 63, Village Self-Government Act, that the plaintiff himself being a part proprietor of a portion of the servient tenement could not acquire any rights by prescription or grant, and that the plaintiff's suit was barred by estoppel.
2. The trial Court dismissed the suit. It held inter alia that the suit was not bad for non-joinder of parties or for want of notice under Section 64, Village Self-Government Act, and that Section 63 of the Act did not afford any protection to the defendants. The question of estoppel was also decided in favour of the plaintiff, but the Munsif dismissed the suit, on the ground that the plaintiff being a part proprietor of Dag No. 3398, over which a portion of the jan lay, could not acquire any right by prescription, nor was any right by grant established in this case. He held further that Dag No. 3387 was a public way, and as such no right by prescription could be acquired with regard to the same. Against this decision there was an appeal taken by the plaintiff to the lower appellate Court and the Court of appeal below has reversed the judgment of the trial Judge and has given the plaintiff a decree. The learned Subordinate Judge concurred with the Munsif in holding that the plaintiff could not acquire any right by prescription, but he held that a right by grant from the co-sharers of the plaintiff could be implied in the case, and as C.S. Dag No. 3387 was not found to be a public way, there was nothing in law which stood in the way of the plaintiff's getting a decree in this case. He has given the plaintiff a, declaration of his title to the extent of four annas and odd gandas share in C.S. Dag No. 3398, and as to the balance of the said dag and the remaining portion of the schedule land, the plaintiff was held to have acquired easement rights as claimed by him in the plaint and the defendants were directed to remove the obstruction within one month from the date of the decree. It is against this decree that the present appeal has been preferred and Mr. Upendra Kumar Boy, who appears for the appellants has raised before me several points, including those upon which the decision of the trial Court was against his clients. I will proceed to discuss these points in their proper order.
3. Mr. Roy's first contention is that the suit is bad for non-service of notice under Section 64, Village Self-Government Act. The Courts below have negatived this contention on the ground that the suit being not one for damages, but for establishment of easement right, does not come within the purview of Section 64, Village Self. Government Act. Section 64 prohibits all suits or legal proceedings without notice, against the Union Board, or its members, officers, etc., for anything done under the Act; and Sub-clause 3 provides that if on receipt of notice the Union Board or its members, tender sufficient amends to the plaintiff, such, plaintiff shall not recover. This section is a reproduction of the provision of Section 363, Bengal Municipal Act of 1884, which itself was a repetition of Section 87 of the earlier Act 3 of 1864. It has been held in a long series of decisions of this Court that the suits contemplated by such provisions are those where the plaintiff claims damages or compensation for some wrongful act committed by the corporate body or their officers in the exercise or honestly supposed exercise of their statutory powers. In the Full Bench case in Chunder Sikhur v. Obhoy Churn (1881) 6 Cal 8 (F B) which is the leading authority on the point, Garth, C.J. pointed out with reference to Section 87 of Act 3 of 1864 that:
It could not have been the intention of the Legislature to allow the Commissioners (even by mistake) to appropriate the lands of private persona without paying for them and to hold these lands for ever against the true owners unless the latter should happen to be sufficiently watchful to discover the aggression in time to take steps to protect their property within so short a period as two months.
4. The same interpretation was accepted after Bengal Municipal Act (1884) was passed, with regard to Section 363 of the Act (vide Shudhangshu Bhusan Roy v. Bejoy Kali Roy (1906) 3 C L J 376), and this view has not been dissented from since then. The specific section of the Village Self-Government Act, i.e., Section 64, came up for consideration before a Division Bench of this Court in Ram Chandra Kapali v. Saday Chandra : AIR1929Cal190 . There the Union Board in village Kundu attempted to make repairs on what they considered to be a public road, but what was claimed by the plaintiff to be his private property. A plea of want of notice was raised by the Union Board, which was given effect to by the Court of appeal below. This decision was reversed in second appeal and Page, J. who delivered the judgment decided that Section 64 should be interpreted in the same manner as Section 87 of Act 3 of 1864 was interpreted by the Full Bench in Chunder Sikhur v. Obhoy Churn (1881) 6 Cal 8(F B), referred to above. In my opinion, the authorities mentioned above conclude the point, and, in fact, it is difficult to suggest any other interpretation of the section having regard to the provisions of its Sub-clause (3). That sub-clause empowers the Union Board or the person or officer upon whom notice is served to tender amends to the plaintiffs in the shape of money compensation and upon such tender being made the plaintiff shall not recover. If this provision be held applicable to cases where the Union Board encroaches upon private property in the honest exercise of its supposed rights, it would be always open to it, to keep out the true owner, provided it was willing and able to pay compensation for the injury that it might choose to inflict. I do not think that this could be the intention of the Legislature. I accordingly overrule the first contention of Mr. Roy.
5. Mr. Roy next argues that even if no notice is necessary under Section 64, Village Self-Government Act, yet the Union Board can claim an independent protection under Section 63 of the Act, as they have acted in good faith and with due care and caution. The Courts below are of opinion that Section 63 is applicable only to suits of that description for which notice is necessary under Section 64, and as the present case does not come under S, 64, Section 63 does not afford any protection to the defendants. I think this would be putting a rather strained interpretation upon Section 63 which is not warranted by the language of the section. But I think it is not necessary for me to decide the matter finally, as in my opinion, before the Union Board can avail themselves of the advantage of the section it is necessary for them to show that the act complained of was done both lawfully as well as in good faith with due care and attention, under the provision of the Act. If the land is not a public road but the private property of an owner, an act of encroachment upon it by the Union Board, cannot be said to be a lawful act done under the provision of the Act, even though they may have an honest belief that it was really vested in them. If no suit lies under such circumstances, the result will be, that on proof of good faith they will be able not only to encroach upon private property but could retain it for ever without even the necessity of paying any compensation. Section 63 therefore does not protect the Union Board in any way in this case, and this contention of Mr. Roy also fails.
6. The third point raised by Mr. Roy relates to the question of non-joinder of parties. There is a twofold contention raised on this point. It is said in the first place that some of the plaintiffs co-sharers who are also the owners of the tank which is the dominant tenement in this case were not made parties to the suit, although they were necessary parties. In the second place it is pointed out that some of the owners of the servient tenement have been left out. I do not think that either of these two contentions has got any substance. The plaintiff is admittedly one of the dominant owners and if the other owners of the tank do not feel aggrieved by the obstruction, it is not necessary that they must join with the plaintiff in the suit. They are certainly not necessary parties and under Order 1, Rule 9, Civil P.C., the suit would not fail in their absence. As regards the servient owners who are alleged to be left out, it is not suggested that any of them was a party to the act of obstruction complained of or was in any way resisting the plaintiff's claim for outlet of water or boat passage. Following the principle laid down in Madan Mohan v. Sashi Bhusan AIR 1915 Cal 403 and Surja Narain v. Chandra Bera : AIR1924Cal1050 , I hold that the absence of these persons is in no way fatal to the plaintiff's suit. The next point raised by Mr. Roy is one of estoppel. No foundation for such a case has been made in the evidence, and both Courts have concurrently found facts which negative any such contention. This point therefore fails and need not be considered further.
7. The last and the most important point raised by Mr. Roy is, that on the finding arrived at by the Court of appeal below that the plaintiff was a part owner of a portion of the land over which the easements are claimed and could not have acquired any right by prescription it could not have held at the same time that the plaintiff had acquired rights over this portion by way of grant from his co-sharers. Mr. Das who appears for the respondent has very fairly conceded that he cannot support the decision of the lower appellate Court on this ground. There is, in fact, no scope for presuming a grant in this case. The plaintiff is a part owner of C.S. Plot No. 3398, and as there is no division of the land as between himself and his co-sharers, he was entitled in law to possess along with his co-sharers every inch of land covered by that Dag. He did hot require any grant from his co-sharers to enable him to exercise any act of possession and there could be no talk of granting an easement right when he was one of the owners himself.
8. Mr. Das however tried to support the decree on the ground that on the facts found, the plaintiff could acquire a right by prescription. His argument amounts to this: that when the dominant owner is also the owner of the entirety of the servient tenement, a merger takes place, and that stands in the way of his acquiring any easement right; but when the two interests are not co-extensive, there is no merger, and the dominant owner can acquire an easement even though he is the part owner of the servient tenement. I cannot accept this contention as correct. In order to acquire an easement by prescription it is necessary that the right must have been enjoyed in the character of an easement, and if the plaintiff was a part owner, he would enjoy as of right, not the easement but the soil itself. The rights even of a fractional owner extend to the whole property, and what is necessary is not unity of title but unity of possession to prevent acquisition of easement (vide Goddard on Easement, Edn. 8, p. 243.) The Courts below were therefore right in holding that the plaintiff could not succeed in establishing a right by prescription with regard to that portion of the jan which lies within Dag 3398, and which is represented by the letters A and B in the map. As the claim on the ground of an implied grant cannot be sustained, this part of the lower appellate Court's decree must be reversed. I may observe here that as the plaintiff's title to 4 annas odd share of C.S. Plot No. 3398 is admitted by the defendant and the defendants are held to be trespassers, it was quite open to the plaintiff to base an alternative case on the strength of his title. The plaint however is confined exclusively to a claim of easement right, and no amendment by way of introducing an alternative claim was prayed for at any stage of the suit. Under these circumstances I have no other alternative but to dismiss this portion of the plaintiff's claim leaving it open to him to institute a proper suit on the basis of his title if he is so advised. The result is that the appeal is allowed in part, and the decree of the lower appellate Court is modified to this extent that the plaintiff's suit is dismissed in respect of that portion of the jan which falls within C. 8. Dag 3398, and is indicated by letters A and B in the map. The rest of the decree is affirmed. I make no order as to costs.