1. This appeal is- against a decree declaring the plaintiff's right of way over certain land and also granting him a mandatory injunction against defendant No. 1 for the demolition of a wall. Defendant No. 1 is the appellant.
2. The facts which are now undisputed are as follows: There was formerly a bari belonging to one Shyam Chand Mullick, the predecessor-in-interest of defendants Nos. 2 to 8. The west portion of this bari was sold to the predecessor of the plaintiff. At that time, a passage for mehters was reserved between the land sold to the plaintiff's predecessor and the land reserved by Shyam Chand Mullick. Subsequently, the land to the east of the passage was sold to the defendant No. 1. The question in dispute is the width of the northern portion of this admitted passage.
3. The finding of the lower Appellate Court is that at the time of the sale to the plaintiff's predecessor, Shyam Chand accommodated him by allowing him the use of the entire land including plots A, B, C, D. The plots A, B, C, D is the plot in dispute. It is also found that the plaintiff has succeeded in proving that he used the entire pathway for a long time and certainly for more than twenty years openly, peaceably, as of right and without interruption. Those findings are conclusive in second appeal.
4. The learned Pleader for the appellant relies on a passage in Goddard on Easements which was quoted with approval by a Bench of this Court in Doorga Churn Dhur v. Kally Coomar Sein 7 C.146, 8 C.L.R. 375 : 3 Ind. Dec. (N.S.) 643. This passage is to the effect that 'a right of way along a private road belonging to another person does not generally give the dominant owner a right that the road shall in no respect be altered, or the width decreased.' But that principle, in our opinion, cannot be applied to the present case because, as between the contending parties, the plaintiff and defendant No. 1, it is not a question between the owners of a dominant and a servient tenement. It is found that the property purchased by defendant No. 1 did not include any portion of the pathway or any portion of the disputed plot A, B, C, D. If, as found, this plot was made a part of the pathway when the original homestead was divided, the defendant No. 1, as purchaser of the eastern portion of the homestead excluding this pathway, is not the owner of the servient tenement. The same author, Goddard, in his Law of Easements, 5th Edition, at page 101, remarks--Private rights of way not appurtenant to a dominant tenement, like public rights of way, are also not easements, but rights in gross, 'and that is the right here claimed as against the defendant No. 1. The owners of the servient tenement are apparently the defendants Nos. 2 to 9 and they have taken no objection, nor apparently have they appeared at any stage of the suit. On the findings, therefore, the plaintiff is entitled to have his right of way over this land declared and to have an injunction against defendant No. 1 for the removal of the wall which is built obstructing this right of way.
5. The second point taken is that, the suit must fail because defendant No. 9 was not made a party in the lower Appellate Court. Apparently, by some mistake, defendant No. 9's name was not entered in the decree and this was the reason why he was not of the respondents when the plaintiff appealed. Reliance is placed on the decision in Madon Mohan Chattopadhya v. Akashoy Kumar Baruri 5 Ind. Cas. 23 : 14 C.W.N. 15. But in that case all the servient owners were not before the Court when it finally dealt with the matter. Defendant No. 9 has, however, been made a party before us. That, in our opinion, remedies the forma} defeat. And I must also point out that this objection, being one of the non-joinder, should have been taken in the lower Appellate Court when it could have been remedied there.
6. The appeal fails on both the points argued and is dismissed with costs.
7. I agree.