Decided on March 04,1960

Keipasindhu Dinda Appellant
Sristidhar Garu Respondents


- (1.) This second appeal arises from a suit for the declaration of the Plaintiffs' easement right of pathway over the disputed land. The parties both belong to Damodarpur, Mouza, Midnapore district. The homestead of the Plaintiffs is in c.s. plot No. 2870 of that Mouza. The homestead of defenders 1-3 is in c. s. plot No. 2874 to the contiguous each of the Plaintiffs homestead and further to the east to c.s. plot No. 2878 which is the homestead of Defendants 4 to 6; and further east are the land of Defendants 7 to 13. The Plaintiffs claimed that from their homestead in c.s. plot No. 2870 they had all along been using a pathway going towards the east along the southern border of the Defendant's homestead in c.s. plot No. 2874 which is also the north of the Plaintiffs' tank in c.s. plot No. 2875; and then going further east along the south of the homestead of Defendants 4 to 6 in c.s. plot) No. 2878, and then turning northwards and proceeding by the east of the homestead of the Defendants 4 to 6 and by the west, of the land of other Defendants so as to reach the public pathway running along the southern bank of the kha in c.s. plot No. 2871. A rough sketch map was annexed to the plaint in order to indicate the pathway claimed. The Plaintiffs alleged that the Defendants 1 to 3 had obstructed the portion of the pathway situated to the contiguous south of their homestead in c.s. plot No. 2874, i.e., the portion Ka-kha of the sketch map, in Ashar, 1357 B.S. (June-July 1950) by spading up the pathway and sowing greens and other vegetables therein. Accordingly, the Plaintiff's instituted the suit on August 25, 1950, for declaration of their easement right of pathway over the portion Ka-kha and the remaining portion thereof as described above, for a permanent injunction restraining the Defendant from obstructing the Plaintiffs' user of the pathway, and for a mandatory injunction directing Defendants 1 to 3 to remove the obstruction put by them in the Ka-Kha portion of the pathway.
(2.) Defendants 1 to 3, 8 to 12 and 14 appeared and filed written, statements. They denied the Plaintiffs' right of way over the alleged pathway. There was also a plea of defect of parties, inasmuch as some of the Defendants, viz., Defendants 5, 6 and 13 were minors and their natural guardian did not appear but still the Plaintiff did not take any steps for the appointment of guardian ad litem for them.
(3.) The learned Munsif held that the Plaintiffs' claim to use the disputed pathway as of right had not been established, and the suit was further bad for defect of the parties as there had been no proper representation of Defendant No. 13, as well as of Defendant Nos. 5 and 6. Accordingly, the learned Munsif dismissed the suit.;

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