Necessary Parties in Suits on Easement

Taken from: Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits

Saji Koduvath, Advocate, Kottayam.

Introduction

The leading case, Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, AIR 1963 SC 786, beholds the whole law on the topic.

  • Key Takeaways from this Decision, Udit Narain
  • Necessary Party
    • A necessary party is one without whom no order can be made effectively.
    • The parties whose rights are directly affected are the necessary parties.
    • A tribunal exercising a judicial or quasi-judicial act cannot decide against the rights of one person without giving him a hearing or an opportunity to present his case in the manner known to law.
    • If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it.
    • Any order that may be issued behind the back of such a party can be ignored by the said party.
    • Any such order made without hearing the affected parties would be void.
  • Proper Party
    • A proper party is one whose presence is not necessary for making an effective order; but whose presence is necessary for a complete and final decision on the question involved in the proceeding, or whose presence may facilitate the settling of all the questions that may be involved in the controversy.
    • The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case.
    • Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.

Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar

In Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar AIR 1963 SC 786 our Apex Court held, in para 7 and 9, as under:

  • “7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively’; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.”   
  • “A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of one party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void.
  • 9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari, the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by I the said party, with the result that the tribunal’s order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.”

Following are the recent Supreme Court Judgments that followed Udit Narain Singh

  • (1) Vishal Ashok Thorat v. Rajesh Shrirambapu Fate, 2019 AIR SC 3616
  • (2) Swapna Mohanty v. State of Odisha, 2018 17 SCC 621
  • (3) Kanaklata Das v. Naba Kumar Das, 2018 AIR SC 682
  • (4) Poonam v. State of U. P. , 2016 2 SCC 779
  • (5) Asstt. G.M State Bank of India v. Radhey Shyam Pandey, 2015 (3) SCALE 39
  • (6) Sh Jogendrasinhji Vijaysinghji VS State of Gujarat, 2015 AIR SC 3623
  • (7) Census Commissioner v. R. Krishnamurthy, 2015 2 SCC 796
  • (8) H. C. Kulwant Singh v. H. C. Daya Ram, 2014 AIR SC 3083,
  • (9) Ranjan Kumar v. State Of Bihar, 2014 16 SCC 187
  • (10) State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144
  • (11) Manohar v . State of Maharashtra, 13 Dec 2012
  • (12) Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610
  • (13) Delhi Development Authority v. Bhola Nath Sharma, AIR 2011 SC 428
  • (14) State of Assam v. Union of India, 30 Sep 2010
  • (15) Competition Commission of India v. Steel Authority of India Ltd. , (2010) 10 SCC 744
  • (16) Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204       
  • (17) JS Yadav v. State of UP (2011) 6 SCC 570
  • (18) T. Vijendradas v. M. Subramanian , 09 Oct 2007
  • (19) Avtar Singh Hit v. Delhi Sikh Gurdwara Mangt. Comte., (2006) 8 SCC 487
  • (20) Assam Small Scale Ind. Dev. Corp. v. J. D. Pharmaceuticals, 2005 (13) SCC 19

Non-joinder of a Party – Relevant Provision of CPC

Section 99 of the CPC reads as under:

  • 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
  • Provided that nothing in this section shall apply to non-joinder of a necessary party.

Rule 9 of Order I CPC reads as under:

  • 9. Misjoinder and nonjoinder: No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
    Provided that nothing in this rule shall apply to nonjoinder of a necessary party.

Non-joinder or misjoinder of Parties – Objection

  • 13. Objections as to non-joinder or misjoinder.
    All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Necessary Party – for Effectually and Completely settle the questions

In Razia Begum vs. Anwar Begum,  AIR 1958 SC 886, our Apex Court observed as under:

  • “The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.”Quoted in: Poonam VS State of UP, 2016-2 SCC 779

Easement – owners of properties who obstruct alone are necessary parties

If easement  right is claimed over a way that passes through various (servient) properties, the owners of properties who obstruct the way alone are necessary parties; and those who do not raise any obstruction are not necessary parties.

  • Madan Mohan Chakravarthy v. Sashi Bhusan, AIR 1915 Cal 403  (19 Cal WN 1211);
  • Lal Mohammad Biswas v. Emajuddin Biswas, AIR 1964 Cal 548;
  • Varkey Joseph v. Mathai Kuriakose, (1992) 2 Ker LJ 135; (1992) 2 Ker LT 169.

Owners Of Other Servient Fields Are Not Necessary Parties

In K.Palaniappa Moopan v. Angammal, (1967) I M.L.J. 177, it was held as under:  

  • “It may be that the owners of other fields over which the channel flows are proper parties, but certainly they are not necessary parties. Their non- joinder cannot be fatal to the suit. There are several servient tenements over which the channel passes, but the defendants alone have obstructed according to the plaintiffs. There has been no obstruction from the State or from the owner of field S.No.15 of the exercise of the right claimed by the plaintiffs. I am unable to appreciate the contention that the plaintiffs cannot have effectual relief in their absence. If any of them should interfere with the mamool flow of water or at any subsequent period, that would give a fresh cause of action to the plaintiffs and a cause of action to the defendants also if they are inconvenienced and injured. In my view, it would be unreasonable to compel the plaintiffs to implead the owners of the servient lands all along the course of the channel whether they had any cause of action against them or not and even though there was no obstruction to or denial of the plaintiffs right by these persons. “

All persons interested in Easement are not Necessary Parties

In S. Narain Bera v. Chandra Bera, AIR 1924 Cal. 1050, the Division Bench of Calcutta High Court observed that all persons interested in the right of easement are not necessary parties to the suit where the cause of action on the pleadings is against those persons only who are alleged to have interfered with the plaintiffs right. The persons who have the right of easement cannot be held to be necessary parties so long as their right is not interfered with. In order to determine whether a suit is maintainable and whether certain parties are necessary parties or not, it is necessary to ascertain the nature of the plaintiffs case as set out in the plaint. . (Referred to in : Durvasula Dakshina Murthy v. Vajjala Vijaya Kumari, 2008 1 AndLD 347)

In Mukherjj v. Kalipada Bhattacharji, A. I. R. 1936 Cal. 534, it was held that every owner of servient tenement denying the plaintiffs right and every person obstructing the use of the right were necessary parties. (Referred to in: Ram Singh Sharma v. Parmod Kumari, 1992-102 PujLR 396)

Not Necessary To Add Who Are Not Parties To Obstruction

Justice B.K.Mukherjea in Kedaruddin Ahamad v. Sm. Samsur Mata, (41 Cal.WN 769) took the view that it was not necessary to add as defendants those persons who are not parties to the act of obstruction complained of.

In Varkey Joseph v. Mathai Kuriakose, 1992-2 KerLJ 135; 1992-2 KerLT 169, it is held as under:

  • “The said decision (Kedaruddin Ahamad v. Sm. Samsur Mata) also took note of the decision reported in Surja Narain V. Chandra Bera (AIR 1924 Cal.1050) to hold that the absence of other servient owner is in no way fatal to the plaintiffs suit complaining of obstruction by a servient land owner. These authorities were considered elaborately by his Lordship P.B. Mukharji, J. in the decision reported in Lal Mohd. v. Emajuddin (AIR 1964 Cal.548). After noticing the conflict of authorities the learned judge preferred to follow the view expressed in the decision reported in 19 Cal.WN 1211 which was affirmed by a Division Bench of which Chief Justice Jenkins himself was a party and that of B.K. Mukherjea, J. in the decisions reported in 41 Cal WN. 769. His Lordship Justice P.B. Mukharji observed:
  • “The actual complaint in this case against the defendants is that they put two obstructions at two places on the road over which a right of way was claimed by the plaintiffs. The real nature of the suit is for removal of those obstructions. The persons who obstruct in my judgment are the only proper and necessary persons to be joined as defendants in such a suit, Hundred and thousand of villagers who have done nothing to obstruct such a way are neither necessary nor proper parties.
  • If that were so then a single obstruction by a single villager will make it necessary to make the whole village,. i.e., all the villagers, parties. In that view a person who suffers has to join all other numerous persons as defendants although they have done nothing and there is no cause of action or grievance against them. I do not think that is the law….”
  • Read in the light of 0.1 R.9 of the Code of Civil Procedure and the practical considerations put forward by Mr. Justice P.B. Mukharji I respectfully agree with the view taken by Mr. Justice P.B. Mukharji in the decision reported in AIR 1964 Cal.548.”

Owner of the Servient Tenement – Not Necessarily a Party

In Varkey Joseph v. Mathai Kuriakose, 1992-2 KerLJ 135; 1992 2 KerLT 169, it is observed as under:

  • In Thayappan v. Kunhahammed (S.A, No.629 of 1986) considered this question in the light of the decision reported in AIR 1964 Cal. 548 and the decision of the Hon’ble Supreme Court reported in Udti Narain Singh Malpharia v. Additional Member, Board of Revenue, Bihar (1963(1) SCR 676) and has held as follows:
  • “…The learned counsel for the appellant raised a contention that the suit is bad for non joinder of necessary parties, as the owner of the servient tenement is not made a party to the suit and therefore it is contended that no effective decree for declaration could be passed in this case and the lower appellate court erred in reversing the findings of the trial court. The respondent’s counsel contended that the owner of the servient tenement is not a necessary party and it is pointed out that the appellant has not raised this contention in the written statement. Who is a ‘necessary party’ has been explained by the Supreme Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar (1963-1 SCR 676) wherein it was held,
  • “Necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding”.
  • It is true that if the owner of the servient tenement is a necessary party and whose presence is necessary for passing an effective decree, he is to be impleaded as a party and the non-joinder of such a party may entail the dismissal of the case. I do not think that the owner of the servient tenement is a necessary party in all cases where a declaration of easement right is claimed by the plaintiff. In the present case the real dispute is between the plaintiff and the defendant. Defendant is the owner of an adjacent property and according to the plaintiff he is causing obstruction to the pathway. The plaintiff has no case that the owner of the servient tenement caused any obstruction to the use of the pathway. Even if the court passed a declaration of his easement right in respect of the plaint schedule pathway it would bind only the defendant, who allegedly caused the obstruction. Therefore, the owner of the servient tenement is not a necessary party in all suits for declaration of easement right. An effective decree can be passed even without impleading the owner of the servient tenement as a party to the suit,…”

Necessary Party – Person Likely to Suffer has to be Impleaded

In Census Commissioner v. R. Krishnamurthy, 2015-2 SCC 796, it is observed as under:

  • 19. As we evince from the sequence of events, the High Court in the earlier judgment had issued the direction relating to carrying of census in a particular manner by adding certain facets though the lis was absolutely different. The appellant, the real aggrieved party, was not arrayed as a party-respondent. The issue was squarely raised in the subsequent writ petition where the Census Commissioner was a party and the earlier order was repeated. There can be no shadow of doubt that earlier order is not binding on the appellant as he was not a party to the said lis. This view of ours gets fructified by the decision in
  • H.C. Kulwant Singh v. H.C. Daya Ram JT 2014 (8) SC 305 wherein this Court,
    • after referring to the judgments in
    • Khetrabasi Biswal v. Ajaya Kumar Baral, (2004) 1 SCC 317
    • UditNarain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786
    • Prabodh Verma v. State of U.P. (1984) 4 SCC 251 and
    • Tridip Kumar Dingal v. State of W.B. (2009) 1 SCC 768
    • has ruled thus:      
  •  ‘….. if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice’.”

Necessary parties in suit on Partial destruction of Stair Case and its Removal

Smt. Subhra Sinha Roy v. Iman Kalyan Dey, (2011) 2 CalHN 959, considered it and stated as under:

  • “In CWN (19) 1211 (Sir Lawrence Jenkins, C.J., Justice D. Chatterjee Madan Mohan Chakravarty v. Sashi Bhusan Mukherji, (1915) 31 Ind. Cas. 549 : 19 C.W.N. 1211) it is held, inter alia, that a dominant owner has no cause of action against servant 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 servant owners other than those who have so obstructed or challenged his right. The said case relates to a suit for declaration of right of way, for restoration of the path to its former condition and for perpetual injunction. The said suit was decreed against which appeal was preferred with the contention that the suit ought to have failed as the owners of all the servant tenements over which the way is claimed have not been made parties to the suit. The instant case relates to removal of partial obstruction from the existing pathway in terms of a compromise decree which has been waived or relinquished. There is no denial of the fact that the said staircase is now in occupation of the tenants inducted by co-sharers. If such a staircase is to be removed affecting the rights of all the co-owners, they must be treated as necessary party and in such case in absence of all the co-owners no effective decree can be passed. From this point of view the learned Trial Court as well as the Hon”ble Division Bench has not committed any error apparent on the face of record which may be reviewed and the ratio in the aforesaid case is not applicable in the facts and circumstances of the case.”

Claim of possessory right over Govt. land: State need not be a party

In Vavvakkavu Muslim Thaikkavupally v. Narayanan Purushan, ILR 1992-1 Ker 221; 1991-2 KLJ 526; 1991-2 KLT 477, it was held as under:

  • “Regarding the first question it is clear from the pleadings and evidence in the case that the plaintiffs have not claimed either possession of the plaint B schedule property or even an easement right over it as against the State. The gist of their claim in the plaint is that as the owners of the property abutting plaint B schedule property they are using the same as a passage to have access from their residential house in plaint B schedule property to N.H. 47. Of course they have also stated that they have no other pathway to have access to any public road. However, they have not even alleged and proved any of the ingredients to establish an easement right of way through the plaint B schedule property. Learned counsel for the respondents has also not advanced any such contention before me. Probably being land kept for the purpose of N.H. 47 State has also not chosen to obstruct the plaintiffs in the matter of using plaint B schedule property as a passage so far. In these circumstances, I do not think that it was necessary for the plaintiffs to have impleaded the State as a party to the suit. In a more or less similar case, a Division Bench of the Orissa High Court in the decision reported in Girish Chandra v. Nagendranath (AIR 1978 Orissa 211) has held that the owner of land is not a necessary party to the suit so long as none of the parties to the suit have claimed any right specifically against the owner. In the said decision, the Division Bench has actually referred to two earlier decisions of the Calcutta High Court reported in Sabirer Ma v. Behari Mohan Lai (AIR 1928 Cal. 23) and in Kedaruddin v. Asrafali (AIR 1937 Cal. 355) in support of their view. In AchutKalsai v. MadhuKalsai (1972) 38 Cut.LT 105) the Orissa High Court in a more or less similar case has held thus:
  • “In this case there is no allegation of any resistance from the State of Orissa to the flow of Avatar over the Government land intervening between the plaintiffs premises and the channel by the side of the village road. The entire obstruction came from the defendants and the plaintiffs really aggrieved by the defendants action. There may be cases where the owner of the servant tenement would not resist and the resistance would come from quite a different quarter. In such cases the Owner of the servant tenement would certainly not be required to be before the Court as a necessary party to the litigation. The present case seems to be one of that type and the State of Orissa which is the owner of the intervening plot not being before the Court would not affect the suit in any manner”.
  • I am in agreement with the view expressed in the above decisions and would hold that the State is not a necessary party to the suit and the suit is not liable to be dismissed on that ground.”

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