1. This was a suit for recovery of two plots of land and for declaration of the plaintiff's right of way over a road between them. The only question that arises for decision is whether the joinder of these two claims is barred under Section 44 of the Code of 1882. The Munsiff and the Subordinate Judge for different reasons have both held that Section 44 is not in the plaintiffs' way. The defendants have obtained a Rule from this Court to show cause why their orders should not be set aside.
2. It is conceded by the learned pleader for the petitioners that if the right of way such as is claimed in this suit is such immovable property as is contemplated by Section 44, then that section will not bar the present suit. Immovable property is defined in the General Clauses Act as including land and benefits to arise out of land unless there is anything repugnant in the subject or context of the provision of law in which this term occurs.
3. The questions, therefore, before us are, first is a right of way immovable property, and secondly if it is immovable property, is there anything in the subject or context of Section 44 repugnant to that construction.
4. The petitioners rely on two cases. The first is Fadu Jhala v. Gour Mohan Jhala 19 C. 544. That case related to a fishery which, of course, is a very different thing from a right of way. It was held by three of the Judges in that case that a fishery was not such immovable property as is contemplated by Section 9 of the Specific Relief Act, 1877. The other two Judges held that it was such immovable property. But on reading the decision we find that all the Judges held that a fishery was immovable property, though the majority of them considered that it was not such immovable property as is contemplated in Section 9. It is true that one of the Judges who held that a fishery came within the scope of Section 9, remarked that the definition of immovable property would not, of course, include easements. This case, therefore, except for the remark of one of the Judges, is no authority for holding that a right of way is not immovable property. It is only authority for holding that it is not such immovable property as is contemplated by Section 9 of the Specific Relief Act.
5. The next case cited is Mangal Das v. Jewanram 23 B. 673. In that case it was held that a right of way is not immovable property within the meaning of Section 9. One of the Judges, however, in that case seems to have admitted that a right of way, speaking generally, was immovable property. He thought it was not a benefit to arise out of land but that it came within the definition of immovable property in the General Clauses Act, because the instances given in that definition are not exhaustive. It is difficult, therefore, to hold that this case either goes further than laying down that a right of way is not such immovable property as is contemplated in Section 9 of the Specific Relief Act.
6. The learned pleader for the opposite party has relied on the cases of Maharana Futtehsingji Jaswantsingji v. Dessai Kullianraiji Hakoomutraiji 21 W.R. 178 and Krishto Dhone Mitter v. Nanda Ranee Dassee 35 C. 889; 12 C.W.N. 969. These decisions are certainly in his favour. We may refer also to the Indian Registration Act of 1877. In that Act immovable property is defined as including land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land. It would seem, therefore, that a right of way was regarded as immovable property. This may be of course only for the purpose of that Act. But the word 'other' in the definition shows that the Legislature at the time of passing of that Act considered that a right of way was certainly a benefit to arise out of land. We may here observe that Section 44 of the Code of 1882 appeared also in the former Code of 1877 which was enacted in the same year as the Registration Act to which we have referred.
7. Considering all these authorities, we have no doubt in our minds that a right of way is immovable property.
8. The question then arises as to whether such a construction is repugnant to the context of Section 44. The argument that it is so repugnant rests on the rulings we have cited, which lay down that' it is repugnant to the context of Section 9 of the Specific Relief Act. But clearly the objects of Section 44 of the Code and of Section 9 of the Specific Relief Act, are entirely different. One very obvious distinction is that Section 44 deals not only with suits for recovery of immovable property but also with suits for declaration of title to it. The learned Judges who decided the case of Fadu Jhalu v. Gour Mohan Jhala 19 C. 544 above referred to were clearly greatly influenced by the previous law on the subject and the cases decided thereunder. No such considerations arise in dealing with Section 44. That is a section governing procedure; under it the Court is given power to dispense with its provisions, and in our opinion, provided that no danger of injustice arises, the section should be construed liberally. We do not think that there is anything in the section repugnant to the interpretation of the term immovable property as including a right of way and in this view the petitioner cannot succeed.
9. But in any case we think that we ought not to interfere in a matter of this nature under Section 622. It appears that all these lands are adjacent. The plaintiff sues for two plots and for the declaration of his right of way over the road between them. The dispossession of the plaintiff from these two plots appears to have begun in 1305 and to have continued by successive acts of dispossession until he was deprived of the whole of the plots in 1313. The closing of the right of way took place in 1312 before he had been deprived of the whole of the land to which his right of way is appurtenant. The witnesses who prove these acts of dispossession and the closing of the right of way will probably be identical, and nothing can be gained by compelling the plaintiff to bring two suits for the redress of what really is one wrong.
10. The result is that the Rule will be discharged with costs, two gold mohurs.