1. This appeal is on behalf of the plaintiff and is confined to a strip of land which is described as plot No. 1 in the proceedings, with regard to which the suit has been dismissed by both the Courts below.
2. The plaintiff's case as laid in the plaint shortly stated and so far as is necessary for our present purposes was this: that the plaintiff was residing in his bari to the west of the plot from the time of his ancestors, that he and the defendants (Nos. 1, 5 and 6 being his brothers and Nos. 2, 3 and 4 being the sons of No. 1) and their ancestors had used the said plot as a pathway for over 100 years for going to their lands with ploughs, loads, cattle, palanquain and corpses, openly, peacefully and as of right all the time, that of late he has 'removed to his new bari and thereafter also used the plot as a pathway, till the principal defend ants put up an obstruction thereon. The prayer of the plaintiff was for a declaration of plaintiff's right of way and for recovering possession of it as a way after removing the obstruction.
3. As to the defence of the principal defendants as set forth in their written statement, paragraphs 4 and 5 are important. The averments therein are to the effect that Upendra Ghose and his brother are the malilcs of the middle part of plot No. 1, and the plot is a part of the defendant's bari and yard. These defences were somewhat varied in the course of the proceedings before the Trial Court. The learned Munsif, however, found; (a) that Upendra, Ghose and his brother had no connection with plot No. J; (b) that though the plaintiff and his son said that plot No. 1 belonged to Government, that plot belonged to the four brothers meaning the plaintiff and the defendants Nos. 1, 5 and 6 and they had acquired title to it by adverse possession. He held ultimately that the plaintiff was not entitled to any relief on the grounds, (1) that the plaintiff being the joint owner of the plot along with his brothers was not entitled so far as he claimed a right of way on the ground of prescription, as no man can acquire easement in a tenement of which he himself is the owner, (2) even if the plaintiff and his brothers are not the owners of the plot the servient owner not having been made a party, the plaintiff was not entitled to any relief.
4. These grounds, together with two others were relied upon by the learned Subordinate Judge for dismissing the plaintiff's suit. They are these, (3) the plaintiff cannot claim the easement over the plot treating it as servient one of his new house, since when he gave up the old bari for' the new one the dominant tenement so far as he was concerned ceased to exist, (4) it was not known who are the owners of the servient tenement; and if Upendra Ghose and his brothers or Government be the owners they were not parties to the suit.
5. It is true that the plaint is rather inartistically worded, and from some of the statements made in the plaint it might appear as if the plaintiff was asking for a declaration of a right of way which he has acquired against the defendants. In substance, however, the suit was of a wholly different nature. It is a simple suit to the effect that the plaintiff and the contesting defendants and their predecessors had acquired by prescription a right of way over the plot, they had been in adverse possession of this plot against all others for a sufficiently long, period and the defendants had wrongfully obstructed the plaintiff in the exercise of his right of way over the plot, and the relief claimed was a declaration to the effect that the plaintiff' had acquired such a right of way and for recovery of possession of the plot as a way after removing the obstruction which the contesting defendants had put up thereon.
6. Such a suit, in my judgment, is not liable to be dismissed on any of the grounds relied upon by the Court below.
7. As for the ground No. 1, it is not tenable as there must be complete unity of seisin or the absolute ownership of the dominant and servient tenements must vest in the same person in order that easements may be extinguished. (Peacock on the Law relating to Easement in British India, 3rd Edition, page 532). The principle of extinguishment of easement by merger is simply this that the special kind of property which the right to the easement conferred, so long as the tenements belonged to different owners, is now merged in the general rights of property, and this doctrine has been so strictly construed that it requires the estates, in the two tenements to be of an equally high and perdurable character (Gale, on Easements, 8th Edition, page 517). Mr. Mitra in his well-known book on Limitation, Prescription and Easements, 4th Edition, page 492 says as follows: 'The expression unity of ownership or unity of possession or occupation which is often employed to denote, that species of union which will extinguish an easement is inaccurate. Unity of ownership in fee of both the tenements extinguishes easements.' Goddard, 2nd Edition, pages 365-367. The same person must be absolute owrer of the whole of the dominant and servient heritages in order that the easement may be extinguished. The dominant owner's title to the must be co-extensive with his title to the other See Ivemey v. Stocker (1866) 1 Ch. 396 at p. 408 : 35 L.J. Ch. 467 : 12 Jur. (N.S.) 419 : 14 L.T. 427 : 14 W.R. 743. In other cases of unity the easement is suspended, not extinguished.' If the facts be that the plaintiff and the contesting defendants and their predecessors acquired a prescriptive right of way, and being in adverse possession against the rest of the world also acquired an indefeasible right jointly to be owners of the property, how can the plaintiff lose the right which he had acquired to use it as a pathway. Where in such a caseis there any room for the application of this principle
8. As for grounds Nos. 2 and 4 which may be taken up together, it was found by the learned Munsif and that finding has not been displaced by the learned Subordinate Judge, that Upendra Ghose and his brother or the Government were not owners of any part of this plot. We are not entitled to proceed upon a mere supposition that they are. The servient owners, as far as one can see, are the defendants in this suit who are holding possession adversely to the plaintiff's rights. Even if there are others, there being no cause of action against them and their presence not being necessary for adjudicating on the rights of the parties in the present litigation they need not have been made parties.
9. In the case of Madan Mohan Chakravarty v. Sashi Bliusan 31 Ind. Cas. 549 : 19 C.W.N. 1211, it was held that a dominant owner has no cause of action against servient owners who have neither caused obstruction nor raised any objection to the exercise of his right of easement. In. a suit for declaration of his right of way he is not bound to make parties any servient owners other than those who have so obstructed or challenged his right. The cases of Madan Mohan v. Akshoy Kumar 5 Ind. Cas. 23 : 14 C.W.N. 15 and liar an Sheikh v. Romesh Chandra 62 Ind. Cas. 425 : 25 C.W.N. 249 only lay down the general rule, and the facts of those cases are clearly distinguishable from those of the present case. The same view has been taken in the case of Amritanath Biswas v. Jogendra Chandra Bhattacharjee 69 Ind. Cas. 183.
8. As for ground No. 3 it has no substance as the deed of exchange clearly excludes this plot and the plaintiff's right therein were expressly reserved in that deed and what--ever right the plaintiff might have acquired he never could lose by shifting on to his new bari.
9. A feeble attempt was made by the respondent to justify the dismissal of the suit upon grounds other than those that were covered by the issues in the case. I am of opinion that the same should not be permitted at this stage.
10. In my judgment, therefore, the decrees of the Courts below so far as plot No. 1 is concerned should be set aside and I accordingly do set them aside and order that the plaintiff do get a declaration that he has the right of way therein as claimed in the plaint and that all obstructions, if any, put on it by the defendants be removed and that the plaintiff do recover possession thereof to use it as a way. The plaintiff is entitled to the costs of this appeal.