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Jullu Rahman Shaikh Vs. Tenee Shaikh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal882
AppellantJullu Rahman Shaikh
RespondentTenee Shaikh and ors.
Cases ReferredBhola Nath v. Mohesh Chandra Bera
Excerpt:
- .....and for removal of an obstruction thereon, if it is discovered that a 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.3. the case had been considered in several later decisions, to some of which reference will presently be made. the case of madon mohan v. akshoy kumar (1910) 5 ic 23 was explained by n.r. chatterjea, j., in the case of madon mohan v. sashi bhusan (1915) 31 ic 549. it was pointed out thatall the servient owners' in the case of madon mohan chattopadhya (1910) 5 ic 23 'mean all the.....
Judgment:

Mukerji, J.

1. In this case, the District Judge, while finding on all points in plaintiff's favour as regards a right of way which he claimed as an easement in a suit for declaration of such right and for an injunction restraining the defendants from putting up an obstruction on it and also for other consequential reliefs by demolition of a structure which he had already put upon it, has dismissed the suit on the ground that the defendant's landlord had not been made a party to the suit. The District Judge has relied upon the decision of this Court in the case of Haran v. Ramesh Chandra AIR 1921 Cal 622. The question to be considered in this case is the scope, authority and applicability of that decision.

2. The learned advocate for the respondent in this appeal has placed before me a decision of this Court in the case of Madon Mohan v. Ahshoy Kumar (1910) 5 IC 23, in support of his contention that as a general proposition no suit for declaration of an easement and for other consequential reliefs can proceed unless all persons interested in the land over which suck easement is claimed are parties to the suit. It is this general proposition, and not any particular situation created by the absence of a party in any particular case, that has to be considered in the first instance. The decision, in my opinion, is no authority for such a broad proposition. It is clear that the infirmity of the appeal under the Letters Patent, that arose in that case, was due to some casualty that had happened since the decision of Brett, J., from which that appeal was preferred. The parties were all there, when the appeal was dealt with by Brett, J., but some of them were not before the Court when the appeal under the Letters Patent was heard. All the parties, against whom a declaration of easement was asked for and against whom an injunction was also asked for, were not before the Court and it is obvious that under such circumstances, the appeal was incompetent. The case of Haran v. Ramesh Chandra AIR 1921 Cal 622, upon which the District Judge has relied, laid down a proposition that:

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 an obstruction thereon, if it is discovered that a 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.

3. The case had been considered in several later decisions, to some of which reference will presently be made. The case of Madon Mohan v. Akshoy Kumar (1910) 5 IC 23 was explained by N.R. Chatterjea, J., in the case of Madon Mohan v. Sashi Bhusan (1915) 31 IC 549. It was pointed out that

all the servient owners' in the case of Madon Mohan Chattopadhya (1910) 5 IC 23 'mean all the servient owners who had raised objections to the plaintiff's 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'

4. In Madon Mohan v. Akshoy Kumar (1910) 5 IC 23 an owner of a portion of the pathway, who had never disputed the right of the plaintiff and caused no obstruction thereto, had been left out of the suit. The decision in the case was upheld in Letters Patent Appeal (3). The decision is of very great weight as Jenkins, C.J., who was a party to the decision in Madon Mohan Ghattopadhya's case (1910) 5 IC 23, presided over the Letters Patent Appeal Bench in Madon Mohan v. Sashi Bhusan (1915) 31 IC 549. In Rajnarayan Chandradhwaja v. Benimadhab Tewari Second Appeal No. 1690 of 1919, decided on 20th December 1921 by Chatterjea and Panton, JJ. the question was a right to take water from a tank through a drain, and one of the persons, through whose land the drain was alleged to have passed, was not made a party. It was held that, as there was nothing to show that parson had at any time raised any objection to the exercise of the plaintiff's right, the suit; was not defective. The decision in Madon Mohan Chakravarty's case (1915) 31 IC 549 was followed, and Haran v. Ramesh Chandra AIR 1921 Cal 622 was distinguished on the ground that, in that case, one of the joint owners of the servient tenement was left out. Surja Narain v. Chandra Bera : AIR1924Cal1050 need not be considered, as it was a case of a very different nature. Haran v. Ramesh Chandra AIR 1921 Cal 622 was followed in Sadhu Charan Pal v. Indra Mohan Mistari (1921) 64 IC 90, in which a joint owner, who was a minor, of the servient tenement was not represented in the appeal in this Court, it being said that no effective decree could in the circumstances be made. In the case of Amritanath Biswas v. Jogendra Chandra : AIR1924Cal369 , some cosharer owners of the servient tenement were not impleaded and B.B. Ghosh, J., said:

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 there are oases which may well be taken as exceptions to the general rule and, as an instance, the case of Madon Mohan v. Sashi Bhusan (1915) 31 IC 549 may be cited. * * * It is not stated that any of their cosharers took any part in obstructing the plaintiffs' right. Had they been impleaded they would have objected that there was no cause against them.

5. In Durga Ram v. Bharat Ram AIR 1926 Cal 92, the servient owners, who were left out, were owners of a portion of the alleged pathway, on which portion there was no obstruction and it was held that the omission was not material. Similar were the facts of the case of Bhola Nath v. Mohesh Chandra Bera : AIR1925Cal1138 and the decision therein was similar. I do not think there is any authority for the view that, where an easement is claimed, all persons interested in the servient tenement, no matter what the character of their respective interests may be, are always to be regarded as necessary parties. The general rule undoubtedly is that all owners of the servient tenement, as regards which there is a cause of action and over which the easement is claimed, should be made parties. For instance, if a co-owner is left out, the decree would be infructuous, as, on his application, an injunction might issue restraining the plaintiff from exercising his right of easement notwithstanding the decree that he obtains.

6. And I would also put into the same category persons who have an interest entitling them to present possession of the servient tenement, for they would have similar rights as co-owners, as against the plaintiff, if they are left out of the suit. But, I am clearly of opinion that there is no justification for the view that all persons interested, no matter what the nature or character of their respective interests may be, are necessary parties. For instance, with regard to a servient tenement in the district of Bakarganj, it is not that all the holders of the dozens of grades of interest that are common in that district, on account of feudation and sub-in-feudation, of which there is no end there, are to be made parties; or, for instance, with regard to the servient tenement belonging to an occupancy raiyat, that all the holders of superior interests up to the revenue-paying zemindar on the one hand, and all the holders of subordinate interests, down to a labourer or bargadar on the other, are to be regarded as necessary parties. For such a view there is no authority nor principle in support,'and the observations in Haran Sheikh's case AIR 1921 Cal 622, widely though they may have been expressed, could never have been intended to be understood in that sense.

7. As regards the present case, the defendant never disclosed what kind of present right to possession the landlord has in the servient tenement, and, on the other hand, alleged that he himself and his predecessors had been on the land for several generations. In my judgment, it was not necessary for the plaintiff to make such a landlord a party. The appeal is allowed. The decision of the District Judge is set aside and that of Munsif is restored with costs in this Court and in the Court of appeal below.


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