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Sadhu Charan Pal and anr. Vs. Indra Mohan Mistari and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.90
AppellantSadhu Charan Pal and anr.
Respondentindra Mohan Mistari and ors.
Cases ReferredHaran Sheikh v. Ramesh Chandra Bhattacharjee
Excerpt:
parties, joinder of - minor defendants not represented--suit, dismissal of. - .....of the defendants was a minor and he was not properly represented in the snit. the court of first instance held that a right of way could not be declared over the land of the defendants when one of them was not represented in the suit. that court accordingly held that the snit most fail on that ground apart from any other consideration, though the snit was dismissed on other grounds also. this question does not appear to have been discussed in the court of appeal below. that court concurred with the court of first instance in dismissing the suit.3. the plaintiffs have appealed to this court.4. it is contended on behalf of the respondents that the court cannot make a decree declaring a right of way in the absence of defendant no. 4 who was one of the owners of the servient tenement, as.....
Judgment:

1. This appeal arises out of a suit for declaration of the plaintiffs' right of way over the defendants' land.

2. One of the defendants was a minor and he was not properly represented in the snit. The Court of first instance held that a right of way could not be declared over the land of the defendants when one of them was not represented in the suit. That Court accordingly held that the snit most fail on that ground apart from any other consideration, though the snit was dismissed on other grounds also. This question does not appear to have been discussed in the Court of Appeal below. That Court concurred with the Court of first instance in dismissing the suit.

3. The plaintiffs have appealed to this Court.

4. It is contended on behalf of the respondents that the Court cannot make a decree declaring a right of way in the absence of defendant No. 4 who was one of the owners of the servient tenement, as in the circumstances such a decree would be infructuous.

5. We think that this contention must prevail. No effective decree can be made in the absence of a minor who is jointly interested in the alleged servient tenement [see Haran Sheikh v. Ramesh Chandra Bhattacharjee 62 Ind. Cas. 425 : 85 C.W.N. 249 at p. 252.]

6. Under the circumstances, it would be useless to go into the merits of the appeal. The appeal is accordingly dismissed with costs.


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