1. This is an appeal against an order of remand made by the Subordinate Judge of Midnapur, dated the 21st February, 1923. The plaintiffs brought the suit for a declaration of their right to fill up a hollow in their own land, and to construct a chatal or pavement thereon, and for compensation from the defendants for damages caused to the said pavement. The defendants stated that plaintiffs, by constructing the pavement, had obstructed the flow of water to which they and the residents of 5 other villages had a right of easement. One of the pleas raised in bar was that the suit was bad for defect of parties, as all the persons interested, namely, the residents of the five villages previously referred to had not been made parties to the suit.
2. The Court of first instance gave effect to this plea and dismissed the plaintiffs' suit. On appeal the learned Subordinate Judge remanded the case, being of opinion that the said persons were not necessary parties to the suit.
3. The defendants have appealed, and it is argued on their behalf that the suit is not maintainable in the absence of all persons interested in the right of easement over the plaintiffs' land, as any decision in the case in the plaintiffs' favour would affect them also. I do not think that there is any substance in this contention. In order to determine whether the suit is maintainable and whether certain parties are necessary parties or not, it is necessary to ascertain the nature of the plaintiffs' case as set out in the plaint, The plaintiffs allege that, as proprietors of the soil, they have the right to fill up the hollows and to make the chatal or pavement, and by doing so, they assert, that, they have not obstructed the flow of water in any way, They admit that the defendants have the right to the flow of water over the plaintiffs' land. But they allege that they have not interfered with that right. They seek a declaration of their proprietary right against the persons who denied it in a criminal case before the institution of the present suit. Further the plaintiffs' main cause of action seems to be the recovery of damages. The suit, to my mind, is one for the recovery of damages, which is valued at Rs. 400, and as this claim for damages depends upon the plaintiffs' right to build the pavement, they have asked for a declaration of the existence of such a right and this declaration is valued at Rs. 45. Having regard to the frame of the suit, therefore, all other persons who may be interested in the easement are not to my mind necessary parties. If they are made defendants in the suit, they may rightly say that they have been unnecessarily made parties as there is no cause of action against them, since they have not denied the plaintiffs' right. The suit is a simple one for the declaration of a right against persons who have denied it, and for damages arising from their wrongful action, In my judgment the suit has been rightly framed.
4. Reliance has been placed by the first court and by the learned vakil for the appellant in this Court on the case of Haran Sheikh v. Ramesh Chandra Bhuttacharjee A.I.R. 1921 Cal. 622. In that case the plaintiffs ?brought a suit for establishing their right of way over land belonging to the defendants. One of the persons who had an interest in the land was not made a party to the suit. The learned Judges held that in spite of Order 1, Rule 9, a suit for declaration of a right of easement over the land of another person was not maintainable in the absence of any person having an interest in the land. It is unnecessary to consider in this case the correctness of that decision regarding which I entertain considerable doubt. It may suffice to point out that a contrary view has been held in other cases decided by this Court. See the case of Madan Mohan Chahravrty v. Sashi Bhusan Mukherji (1915) 19 C.W.N. 1211. In that case the same question arose, namely, whether a suit brought by a plaintiff for a declaration of a right of way, for restoration of the path to its former condition and for a perpetual injunction ought to fail on the ground that the owners of all the servient tenements over which the way was claimed had not been made parties to the suit. Mr. Justice N.R. Chatterjee held that the suit ought not to fail on that account; and that view was accepted without question on appeal by Jenkins, C.J. and D. Chatearjee, J. This view was subsequently adopted in Appeal from Appellate decree No. 1690 of 1919 Raja Raj Narayan Chandra Dhurja v. Beni Madhab Ternary decided on the 20th December, 1921. In my opinion the case of Haran v. Ramesh A.I.R. 1921 Cal. 622 has no application to the facts of the present case. There the plaintiff wanted to establish rights in respect of certain properties;and it may be argued that he could not do so in the absence of any person who had any interest in the property, since such person would be materially affected by the establishment of such a right. In the present case the plaintiffs' allegation is, that they have not interfered with any one's right of easement; nor is their act calculated to obstruct the right of any one. It may be desirable to avoid multiplicity of suits, but that does not necessarily involve that the plaintiffs must make all persons parties to the suit who may possibly dispute his right. Order 1, Rule 9, Civil Procedure Code apparently applies to cases where there may be multiplicity of suits.
5. I think that on the plaintiffs' case as made in the plaint the suit is maintainable, and that the view of the learned Subordinate Judge is correct and ought to be supported. In the result the appeal fails and is dismissed with costs. Hearing fee two gold mohurs.
6. I agree. The contention that all persons interested in the right of easement are necessary parties to the suit, is in my judgment without substance. The cause of action on the pleadings is against those persons only who are alleged to have interfered with the plaintiffs' right. The persons who have the right of easement cannot be held to be necessary parties so long as their right is not interfered with. This view is supported by the decision in the case of Madan Mohan Chakravarty v. Sashi Bhusan Mukerji (1915) 19 C.W.N. 1211. The case of Haran Sheikh v. Ramesh A.I.R. 1921 Cal. 622 which has been relied upon on behalf of the appellants is distinguishable. I agree therefore in the order which my learned brother proposes to make.