1. In the suit out of which this appeal arises the plaintiffs sued the defendants for a declaration of their right of easement in respect of a certain pathway leading from their house in the direction of Maheswarpassa Main Road to the south. This pathway passed to the west of a certain tank belonging to the defendants and that path is said to have been obstructed by defendant 11 acting on behalf of the other defendants. The suit was dismissed by the Court of first instance and the plaintiffs thereupon appealed to the lower appellate Court where their appeal was contested by defendant 11. One of the points taken by the contesting defendant was that the appeal to the lower appellate Court was incompetent, because the appeal had abated as against the heirs of defendant 8. This being the case it was urged that, even if the plaintiffs succeeded in their appeal, any decree which they might obtain would be infructuous. This point however was decided in favour of the plaintiff-appellants and it was held by the learned Subordinate Judge that the appeal was not incompetent, The defendants have now come before this Court on second appeal.
2. The learned Advocate for the appellants in this case contends that the lower appellate Court was wrong in holding that the heirs of defendant 8 were not necessary parties to the appeal before the lower appellate Court. The learned Advocate for the respondents, on the other hand, contends that the heirs of defendant 8 were not necessary parties, because defendant 8 had not actually obstructed the plaintiff's right of way and that being the case his heirs were not interested in the subject-matter of the suit. With regard to this argument it appears from the pleadings filed in the first Court that the plaintiffs' allegation was that their right of way had been obstructed by defendant 11 acting on his own behalf and also on behalf of the other defendants. It appears to have been admitted that the pathway in question actually belonged to the defendants and was recorded in their names in the record of rights. It further appears that separate written statements were filed in the first Court: one on behalf of defendant 11 and the other on behalf of defendants 1, 2, 5, 8, 9, 10 and 13. In the later written statement the contesting defendants, including defendant 8, strenuously denied the plaintiff's allegations which appeared in the plaint and contested his right to the declaration which he sought. It therefore appears from the pleadings in this case that defendant 8 was not only one of the owners of the alleged servient tenement, but he had also contested the plaintiff's claim. It is also significant that the judgment of the learned Subordinate Judge contains the following finding:
Though there is no specific act of obstruction attributed to defendant 8, who appeared in the lower Court and filed a written statement, still the facts stated in the plaint and disclosed in evidence are that defendant 8, along with other defendants, had some hand in the obstruction and was therefore a necessary party and was made a party.
3. The general principle which governs the question of joinder of parties in a case of this nature has been stated by Sir Ashutosh Mookerjee in Haran Sheikh v. Ramesh Chandra 1921 Cal 622 in which his Lordship made the following observations:
The Court will not entertain a suit in which no effective decree can be made in the absence of an interested party .... 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 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 so made must be infructuous.
4. This general principle was reiterated by Ghose, J. in Amritanath Biswas v. Jogendra Chandra Bhattacharjee 1924 Cal 369. In the later case it was however pointed out that, regard being had to the facts of that particular case, it was not necessary to implead certain persons who were alleged to be the co-sharers of some principal defendants. In this connection the learned Advocate for the respondents relies upon certain observations made by N.R. Chatterjee, J. in Madan Mohan Chakravarty v. Sashi Bhusan Mukherjee 1915 Cal 403 at p. 1213. In that particular case his Lordship held that it was not necessary to implead certain persons who were alleged to be necessary parties, because 'the owners of the land bhadrar kola alone have caused the obstruction, and all the owners of that land have been made parties to the suit.' He further held that a dominant owner has not necessarily any cause of action against servient owners who have not caused obstruction or raised any objection to the exercise of his right of easement. This case was cited with approval by Suhrawardy, J., in Surja Narain Bera v. Chandra Bera 1924 Cal 1050. But in the later case the learned Judge pointed out that in order to determine whether certain parties are necessary parties or not, reference should be made to the plaintiff's case as set out in the plaint. Further in referring to Haran Sheikh v. Ramesh Chandra 1921 Cal 622 his Lordship stated:
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.
5. Finally the learned Advocate for the respondents relied on another decision of Suhrawardy, J., in Bhola Nath Mandal v. Mohesh Chandra Bera 1925 Cal 1138, in which it was held that certain persons who had not actually obstructed the alleged plaintiff's right were not necessary parties. It is however clear that this case can be distinguished on the facts from the case out of which the present appeal arises. As I have already pointed out, in the case now before this Court, defendant 8 was not merely one of the owners of the servient tenement and had denied the plaintiff's right, but he was also, on the findings of the lower appellate Court, directly concerned in the obstruction. It therefore follows that any decree obtained by the plaintiffs in the absence of the heirs of defendant 8 will be infructuous and the suit cannot therefore be maintained in the absence of those persons. I am therefore of opinion that the appeal to the lower appellate Court was incompetent. The result is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the Court of first instance are restored. The defendants will be entitled to their costs in the lower appellate Court as well as in this Court. The cross-objection is not pressed and is therefore dismissed without costs.