P.B. Mukharji, J.
1. This Second Appeal raises an interesting question of law on the point of nonjoinder of parties. Before discussing this question of law it will be appropriate to set out briefly the relevant facts.
2. The plaintiffs filed this suit for declaration of their right of easement, namely, a 'right of passage of carts' over a strip of land described in the plaint and for an injunction for removal of certain obstructions placed by the defendants on that passage. The plaintiffs' case was that from time immemorial they used the path themselves and took their cattle and carts along this way without interruption and openly and as of right for over 20 years. They also claimed this passage as an easement of necessity. It was alleged in the plaint that the defendants illegally blocked the passage by placing an old hut at two portions one in the south-west of plot No. 882 and the other in the middle of the pathway on plot No. 884. The plaintiffs are the owners of plot Nos. 886 and 887.
3. The passage in dispute runs towards north from the Union Board road in the south and passes over plots Nos. 909 and 908 on the west and plots Nos, 910 and 882 in the east, taking a turn towards the wes between plot No. 908 in the south and plot No. 884 in the north and then again bends towards the north passing between -the homestead of the two plaintiffs.
4. All the nine defendants filed a joint written statement denying the allegations in the plaint. The substance of the defence is that there has been a narrow passage for user by persons only and there was or is no pathway for the use of carts. On the point of obstruction the defence was that there was no placing of huts on the existing passage at the portions alleged and there were eve-drops of the houses of the defendants Nos. 1, 2 and 8. Number of witnesses were examined at the trial Court before the learned Munsif. There was a local inspection and there was a report by the Commissioner. The Commissioner's report found that there were in fact the encroachments,
5. The learned Munsif decreed the suit of the plaintiffs and declared that the plaintiffs had an easement right of way for the passage of carts, cattle and men over the disputed passage and directed the defendants to remove the obstructions and the sheds. The defendants appealed. The learned District Judge on appeal dismissed the appeal and affirmed the judgment and decree of the learned Munsif.
6. The only point in this Second Appeal argued before me is that this suit should have been dismissed on the ground of non-joinder of some of the owners of servient tenements. This point, however, was not taken in defence. There was no defence of non-joinder of parties in the written statement. There was no issue that the suit should have been brought as one under Order 1, Rule 8 of the Code of Civil Procedure as a representative suit nor was there any issue about special damage. The learned Munsif decided the point of non-joinder against the defendants and his view was confirmed by the learned District Judge. That is the only point before me in this Second Appeal for decision.
7. In order to decide this point it is essential to refer to and discuss some of the decisions of the Courts specially of this Court on this point. A Division Bench of this Court, consisting of Jenkins C. J. and Mookerjee, J. in Madan Mohan v. Akshoy Kumar Baruri, 14 Cal WN 15 decided that a decree based on an easement could not be passed when all the servient owners were not parties. Jenkins, C. J. who delivered the judment in that case observed at page 18 of the Report as follows:
'To begin with, there is the initial difficulty that we have not before us all the servient owners, and how we can pass a decree based on easementin that state of the record it is difficult to see.'
Then came the decision of the same learned Chief Justice Jenkins. C. J. sitting with D. Chatterjee, J. In Madan Mohan v. Sashi Bhusan 19 Cal WN 1211 : (AIR 1915 Cal 403), where the former decision was explained and the judgment of N. R. Chatterjea, J. was upheld. In this decision the very first contention was that the suit should fail as the owners of all the servient tenements over which the way was claimed had not been made parties to the suit and the case of 14 Cal WN 15 was relied on. At page 1212 (of CWN): (at pp. 403-404 of AIR) the learned Judge made the following relevant observations on this point : (Madon Mohan Chattopadhya v. Akshoy Kumar Baruri, 14 Cal WN 15).
'In the case cited above all the servient owners were not made parties and the learned Judges observed that it was difficult to see how a decree based on an easement in that state of the record could be passed. But 'all the servient owners' I think, mean all the servient owners who had raised objections to the plaintiffs' right of way and against whom there was a cause of action and do not refer to the owners of all the tenements over which the way passed. If a way passes over 50 different parcels of land owned by 50 different persons, and the owner of the fiftieth parcel obstructs the way on his own land and the owners of the remaining parcels do not raise any obstruction nor even deny plaintiffs' right, I do not think the latter are necessary parties or can be joined in a suit against the person who obstructs the way * * * *. The obstruction being confined * * * alone there was no cause of action against the owners of the other tenements over which the way passes. I am accordingly of opinion that this contention has no force.'
There was a Letters Patent Appeal from this judgment of N. R. Chatterjea, J. before Jenkins, C. J. and D. Chatterjee, J. who confirmed N.R. Chatter-jea, J.'s judgment.
8. This judgment in my view disposes of the point now agrued before me in this Second Appeal. But the difficulty is that there ia another decision of the Division Bench of this Court of Mookerjee, A.C.J. and Fletcher, J. in Haran Sheikh v. Ramesh Chandra, 25 Cal WN 249 : (AIR 1921 Cal 622). There it was decided that the non-joinder of a particular person as a party to the suit was a fatal defect, and on that ground the suit was dismissed. The suit in that case was a suit for declaration of a right of way as a village road and for removal of obstruction thereon. The objection was taken that one of the persons interested in the servient tenement had not been made a party to the suit which was overruled by the Courts below on the ground that it was taken at a late stage. At page 252 of that Report (Cal WN) : (at p. 622 of AIR) Mookerjee A. C. J. noticed the fact that the plaintiffs in that case sued in a representative capacity and that the trial Court had made a declaration with full knowledge that one of the persons interested in the servient tenement was not a party to the litigation and had directed the removal of an obstruction from land in which such persons was interested. This view was said to be not a proper view to take. At page 252 of that Report (Cal WN) : (at p. 622 of AIR) Mookerjee, A. C. J. observed as follows:
'No doubt. Order 1, Rule 9 of the Civil Procedure Code provides that 'No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights . and interests of the parties actually before it.' But notwithstanding this provision it is plain that the Court will not entertain a suit in which no effective decree can be made in the absence of an interested party. For instance in a suit for partition of joint property, if it is established that one of the owners has not been joined as a party, the Court will not proceed to make a decree; the decree will not be operative, as it must deal with the share of the absent person interested, who cannot be bound thereby. Similarly, in a case like the present, where the decree is to be made for declaration of a right of way as a, village road over the disputed land and for removal of as obstruction thereon if it is discovered that at person interested in the servient tenement, has not been made a party to the suit, the Court will not proceed to make a decree. The decree, if made, must be infructuous; if a suit is instituted by the absent person for an injunction to restrain the successful plaintiff from executing the decree, there will be no possible answer to the prayer.'
9. It is on the basis of this decision that the appellant contends before me that the judgment and decree of the lower appellate Court should be set aside on this point. Apparently there is a direct and clear conflict between the decision of .Tenkins, C. J. and D. Chatterjee, J. in 19 Cal WN 1211: (AIR 1915 Cal 403) and that of Mookerjee A.C.J. and Fletcher, J. in 25 Cal WN 249 : (AIR 1921 Cal 622). It is unfortunate that in the latter decision of Mookerjee A.C.J. there was no reference to this previous decision of Jenkins, C, J. and D. Chatterjee, J.
10. There is a more recent decision of Bijaa Bihari Mukherjea, J. in Kedaruddin Ahmad v. Sm. Samsur Mata : AIR1937Cal355 where the learned Judge took the view that it was not necessary to add as defendants those persons who were not parties to the act of obstruction complained of. At pages 772 to 773 of that Report (Cal WN) : (at p. 358 of AIR) the learned Judge observed as follows :
'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 Procedure Code, 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 bolt passage. Following the principle laid down in 19 Cal WN 1211: (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.'
11. This more or less notices the major decisions of this Court on this particular point. I may also refer to a decision of the Madras High Court in K. Subbamma v. Narayanainurthi, 1949-1 Mad LJ 56 : (AIR 1949 Mad 634). In that case it was laid down that it was open to an individual member of the public to maintain a suit for removal of obstruction to a public highway which constituted,a nuisance without the sanction of the Advocate General under Section gi. Civil Procedure Code and even without proof of special damage. It was said there that very often Courts had to deal with the infringement of the rights of the residents of a village or a section of a Community in pathways, wells and banks of rivers and so on. Infringement of such rights could not be deemed to constitute a public nuisance within the meaning of Section 91, Civil Procedure Code or Section 268, Indian Penal Code. A member of such class, it is pointed out in that case, can file a representativesuit under Order 1, Rule 8, Civil Procedure Code for relief in respect of infringement of such rights. This Madras decision gives references to the relevant decisions of the different High Courts of Calcutta, Bombay and Madras as well to the leading decision of the Privy Council in Manzur Hasan v. Muhammad Zaman . It will not be necessary to repeat discussions of those cases already noticed by the Madras decision.
12. Mr. Biswanath Bajpayee has also referred the to a decision of a Division Bench of this Court in Nani Gopal v. Kshitish Chandra, H.R : AIR1952Cal108 , but that is not relevant for the present purpose of deciding this appeal.
13. In this state of confusion and conflict of decisions I prefer to follow the view expressedby Jenfcras, 'C. J. and D. Chatterjee, J. in 19 Cal WN 1211 : (AIR 1915 Cal 403) and B. K. Mukher-jea. J. in : AIR1937Cal355 and not the view expressed in 25 Cal WN 249 : (AIR 1921 Cal 622). I shall state my reasons very briefly.
14. The actual complaint in this case against the defendants is that they put two obstructionsat two places on the road over which a right of way was claimed by the plaintiffs. The real nature of the suit is for removal of those obstructions. The persons who obstruct in my judgment are the only proper and necessary persons to be joined as defendants in such a suit. Hundred and thousand of the villagers who have done nothing to obstruct such a way are neither necessary nor proper parties. If that were so then asingle obstruction by a single villager will make it necessary to make the whole village, i.e., all the villagers, parties. In that view a person whosuffers has to join all other numerous persons asdefendants although they have done nothing and there is no cause of action or grievance against them. I do not think that is the law. It is essential to remember in this case that it is not pleaded that it was a public road. It certainly is a village road or village passage; but not all village roads are public roads. The defendants have also not alleged in their defence that it is a public road; nor is this suit a representative suit under Order 1, Rule 8, Civil Procedure Code. It is not a suit by the plaintiff oh behalf of the public in that locality. The plaintiffs have pleaded that they have from time immemorial and certainly for over 20 years openly and as a matter of right exercised the right to carry their carts and cattle on this passage and they claim protection of that right and removal of the obstruction raised by the defendants upon that right. Such a suit, in my opinion, can be filed and it is not a representative suit under Order 1, Rule 8, Civil Procedure Code. The analogy of the partition suit where a co-sharer is not impleaded, which seems to have weighed with the Court in the decision in 25 Cal WN 249 : (AIR 1921 Cal 622) is in my view not a correct analogy. No share is involved in such a right of way of carts in a suit of this nature as in the case of co-sharers in a partition suit. This is a suit to assert the personal right of the plaintiffs to carry their carts over this passage. It is also a suit by the plaintiffs to assert their right to remove the obstructions on their passage. The suit is a suit for a relief in personam.
15. Lastly it seems to me that this question of dominant and servient tenements in an easement action has been greatly misapplied in the context of such suits. A right to carry carts over a road or a passage does not divide dominant and servient tenements in the sense they are divided when a question of a right of easement arises. Here every resident on that road can by turn be both a dominant and servient tenement. A person living on the road side is in his capacity as the owner of the dominant tenement has the right to exercise his right of cart passage and again it is the same person who will appear in his capacity as the owner of a servient tenement to allow similar rights to his neighbours and not place any obstruction. The difficulty in these cases is that some of the major principles in law of easement are not kept really in view. It is essential characteristic of an easement that dominant and servient owners must be different persons. See Gale on Easements, Thirteenth Edition page 6. If that is not, there is no easement and analogous rights may look like easement but in law not to be confused with the right of easements. So the case of : AIR1952Cal108 to which Mr. Bajpayee for the appellants also referred is not, in my view, at all an authority. That case was for declaration of right of pasturage which is not an easement but profit a prendre. Again in the facts of this case the right claimed is a right of way of carts over this village road. Technically no question of easement arises in this case. There is no dominant and servient owner. No one is claiming the village road either as a dominant or a servient owner. No one is claiming in the facts of such a case as this to drive a cart over the land of another. In fact the danger of using the word 'easement' loosely was noticed in Dovaston v. Payne, (1795) 2 Hy and Bl. 527 where the soil of a highway was said to be subject to an easement for the benefit of the public, but a public right of way cannot be an easement, for there was no dominant tenement. In fact Scrutton L. J. in Taff Vale Ry Co. v, Cardiff Ry Co., (1917) 1 Ch 299 at p. 317 pointed out that 'Parliament and parliamentary draftsmen have used the term 'easement' in relation to various rights which no lawyer would describe as 'easements'. The English Courts on this question of disturbances of private right of way, have attempted to lay down such as in Pettey v. Parsons,(1914) 2 Ch 653 and Pullin v. Deffel, (1891) 64 LT 134 that in a public highway any obstruction is a wrong if appreciable, but in the case of a private right of way the obstruction is not actionable unless it is substantial. No such question, however, arises in this case and in any event the obstruction in this case is substantial because they have so narrowed the passage in some places that no cart can at all pass.
16. Before leaving this point it will be appropriate in conclusion to state that it is not suggested by the appellants at any stage who actually are necessary or proper parties. Neither their names nor the plots they own are mentioned and therefore, the Court could not have dismissed the suit on the ground of non-joinder without knowing who were the persons actually and what actually were their interests, the absence of which was to justify the dismissal of this suit.
17. For. these reasons I dismiss this appeal with costs.