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Bhusan Shahana and ors. Vs. Upendra Nath Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.665
AppellantBhusan Shahana and ors.
RespondentUpendra Nath Ghose and ors.
Excerpt:
easement, suit to establish right to enjoyment of - absent servient owners, if necessary parties. - .....of the appeal. the first point is that some ladies, the daughters of one susa, have not been made parties defendants to the suit and, therefore, the suit is not maintainable. the munsif found that these ladies were not in actual possession of the tank, and that they had no hand in resisting the plaintiffs in taking water from the tank: and thereupon he rejected the plea, but this was given effect to by the subordinate judge; mr. justice walmsley has held that that was not a defect; in the suit for which it is liable to be dismissed. i quite agree with the observations of mr. justice walmsley that it is not necessary to make the owners of the servient tenements parties to the suit for the purpose of. establishing the right of easement with regard to the servient tenements if those owners.....
Judgment:

B.B. Ghose, J.

1. This appeal is against a judgment of my learned brother Mr. Justice Waimsley. The appeal arises out of a suit for establishing a right of easement with regard to certain lands for taking water from the defendants' tank for the purpose of irrigation and for an injunction restraining the defendants from obstructing the plaintiffs in drawing water.

2. The defendants are the appellants before us and two points have been urged in support of the appeal. The first point is that some ladies, the daughters of one Susa, have not been made parties defendants to the suit and, therefore, the suit is not maintainable. The Munsif found that these ladies were not in actual possession of the tank, and that they had no hand in resisting the plaintiffs in taking water from the tank: and thereupon he rejected the plea, but this was given effect to by the Subordinate Judge; Mr. Justice Walmsley has held that that was not a defect; in the suit for which it is liable to be dismissed. I quite agree with the observations of Mr. Justice Walmsley that it is not necessary to make the owners of the servient tenements parties to the suit for the purpose of. establishing the right of easement with regard to the servient tenements if those owners had taken no part whatsoever in resisting the exercise of the right of easement claimed by the plaintiffs. It is urged that a decree passed in the absence of these owners would be infructuous and in that view all the owners of the servient tenements should be made parties to such a suit as this. But the answer to this contention is that if the absent parties interfere with the exercise of the right of easement by the plaintiffs at any subsequent period that would give rise to a fresh cause of action for which the plaintiffs might maintain a suit against them separately. It does not appear to stand to reason that the plaintiffs should be compelled to implead persons as defendants against whom they could have no cause of action and who, as far as the plaintiffs were concerned, did not deny their right.

3. The next question urged is that the plaintiffs have forfeited their rights by increasing the burden on the servient tenement. In this case it is urged that, they were taking water for one plot in excess of the lands with regard to which they had a right of easement and on that ground they had forfeited their right altogether. But this point also is of no weight whatsoever, because the land with regard to which the plaintiffs have no right to take water can be separated from the lands with regard to which they have established their right of easement. If the plaintiffs take water for the purpose of irrigating some land with regard to which they are not so entitled, the remedy of the defendants would be either to ask for an injunction or to claim damages for such excess user. The plaint-ills' penalty is not that they would lose their right with regard to the lands for which they have been, able to establish the, right of easement.

4. The decree of Mr. Justice Walmsley must, therefore, be supported and the appeal dismissed with costs.

Cuming, J.

5. I agree.


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