S.D. Zha, J.
This second appeal by contesting defendants Kanji S/o Pirag, Sukhdeo S/o Kanji and Manubai Wd/o Pirag, defendants Nos. 1, 3 and 4, was by order dated 1-7-1981 admitted on the following substantial questions of law:-
(1) Whether on the facts and circumstances of the case the court below erred in holding that the suit was not barred by limitation?
(2) Whether on the facts and circumstances of the case the lower court erred in decreeing the suit even when it found that the suit was barred by limitation against Manubai
(3) Whether the lower court has erred in granting a relief in excess of that claimed by the plaintiff?
Plaintiff Udiya originally filed suit against defendants Kanji, Jagdish, now respondent No. 2, and Sukhdeo claiming declaration that he had easementary right of way for himself, his labourers, his bullock cart and cattle over Khasra Nos. 184, 185 and 186 at village Bhogdad for access to his Bhumi-swami lands Khasra Nos. 166/2, 167, 174, and 169 at village Bhogdad Tahsil Manawar District Dhar, and for mandatory injunction against the defendants to remove the obstruction and fill the pits dug by them in the way and further restraining them from interfering with the right of way of the plaintiff over the same, compensation Rs. 50/- and further compensation till the obstruction was removed. The plaintiffs case briefly stated was that he is Bhumiswami of Khasra Nos. 166/2, 167, 174/169 and 170/ 2 at Village Bhogdad Tahsil Manawar District Dhar. The defendants are Joint Hindu Family with defendant Kanji as Karta. Defendants own and possess at village Bhogdad Khasra Nos. 184 and 185/1 Tahsil Manawar, District Dhar. The plaintiff from times immemorial has been exercising right of way in respect of himself, his bullock cart and cattle and his labourers over Khasra Nos. 184 and 185/1 which further enters into Khasra No. 186 and then as access to plaintiff''s land. The plaintiff has been exercising this right for more than last 40 years peacefully and without obstruction. The path or way is 9 ft. broad and is shown in the map forming part of the plaint in red ''Aa'' to ''A''. On 18-6-74 the defendants Nos. 1, 2 and 3 obstructed the plaintiff from exercising this right, dug out pits in the way and put earth there on and challenged easementary right of way acquired by the plaintiff. The plaintiff, therefore, 8-11-1974 filed suit against the three defendants, Kanji, Sukhdeo and Jagdish.
Defendant No. 2 Jagdish did not file written statement and was proceeded ex parte. Defendants Nos. 1 and 3 Kanji and Sukhdeo in a common written statement denied the plaintiff''s claim that he was the owner of 5 Khasra numbers at village Bhogdad as claimed or that he had acquired easementary right over the Khasra Nos. 184 and 185/1 as claimed. They denied having created any obstruction. In the special pleadings it was urged that Manubai, who was then not a defendant, was a recorded owner of Khasra Nos. 184 and 185/1, was a necessary party to the suit and failure to implead her as a party was fatal to the suit. The plaintiff had other alternative access to his land. Necessary pleadings for claiming easementary right of way were not there. The defendants took up some other pleas which are not very material for the present appeal.
After these defendants had filed their written-statement the trial Court by order dated 1-3-1977 against issue No. 5 found Smt. Manubai to be a necessary party in respect of the claim for declaration (not for permanent Injunction) and that she ought to be implead-ed as a party. The plaintiff then by I.A. No. 3 dated 4-3-1977 applied for amendment praying to implead Smt. Manubai as defendant No. 4 in the suit. The application was granted by the trial Court by order dated 4-3-1977 and Manubai filed her written statement on 24-6-1977. She took up similar pleas like defendants Nos. 1 and 3. The trial Court by judgment and decree dated 6-8-1979 decreed the claim for declaration prayed for by the plaintiff and also granted mandatory injunction directing the defendants to straighten the path by filling the pit. He further granted permanent injunction restraining the defendants from interfering with the plaintiff in exercise of his right of way as claimed. He also granted compensation Rs. 20/ - per month till the obstruction is removed. The contesting defendants presented appeal to the court of First Additional District Judge, Dhar but without success.
At the hearing of the appeal Shri G. M. Chafekar, learned counsel representing the appellants, submitted that the whole suit was barred by limitation as obstruction to plaintiff was caused in the year 1972 and the suit was filed on 8-11-1974. Proceedings further he submitted that in any event as found by the first appellate court the suit was barred against the defendant No. 4 Manubai and therefore the whole suit must be dismissed. Shri Chafekar contended that the plaintiff was not taking cattle on the way and easement, if any, in his favour was for his personal right of way, hence grant of declaration for right of way for cattle cannot be sustained. Shri Chafekar further submitted that the court should have found when obstruction commenced and the court had not recorded any filding on this point though evidence on the point as to when obstruction commenced was not clear. Shri Chafekar in support of his argument read out the relevant evidence, referred to Sections 21 and 28 of the Limitation Act and relied on the
Controverting Shri Chafekar''s contentions Shri Ramesh Garg, learned Counsel representing the respondent plaintiff Udiya, submitted that the plaintiff had claimed right of way with respect not only to himself but his labourers, cattle and bullock cart. He read the relevant evidence on this point. He also submitted that no objection as to Section 21 of Limitation Act, 1963, was taken by the defendants nor any issue on the point was framed. He emphasized that while injunction was claimed against the defendants Nos. 1 to 3, who had interfered with and obstructed the right of way of the plaintiff, claim for declaration was against all the defendants including Manubai. He emphasized that failure to im-plead defendant Manubai initially and joining her as a defendant after limitation had expired on 4-3-1977 would not be fatal in the case. He submitted that Kanji was admittedly the Karta of the Joint Hindu Family of which his mother Mst. Manubai was member. She was, therefore, before she was joined as a defendant properly represented by the Karta of the family. In this state of things her being impleaded after expiry of limitation would not be fatal to the suit. In support of his submissions Shri Garg relied on the following decisions Sheo Shankar Ram v. Mt. Jaddo Kunwar AIR 1914 PC 136 Narhar v. Narain (AIR 1920 Nag 184); Imdad Ahmad v. Raja Pateshri Partap Narain Singh and Babu Bhuneshri Partap Narain Singh (1910) 37 Ind App 60 and
In reply Shri Chafekar submitted that irrespective of whether the defendants raised plea of limitation or not u/s 3 of Limitation Act, 1963 the court was bound to consider whether or not the suit was within limitation. He distinguished the decisions relied by Shri Garg urging that in all the cases the properly was admittedly joint Hindu family property which was not the case in the present appeal.
Section 15 of the Easements Act, 1882, to the extent material for the present appeal is reproduced below: -
"Section 15. Acquisition by prescription :- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement without interruption, and for twenty years, and where support from one person''s land, or things affixed thereto has been peaceably received by another person''s land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto as an easement, and as of right, without interruption, and for twenty years,
The right to such access and use of light or air, support, or other easements, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested,"
Shri Chafekar''s contention is that obstruction was caused to the plaintiff by the defendants Nos. 1, 2 and 3 in the year 1972 and therefore the suit instituted beyond two years of the obstruction would be barred by limitation under Sub-para (5) of Section 15 Easements Act providingfor two years period next before the institution of the suit. Now no such specific plea before the trial Court was taken. On the other hand the trial Court in para 10 of the judgment after analysing the evidence on the point held that the obstruction took place in the year 1973-1974. This finding was not challenged before the first appellate court in the manner it is now being done and the finding of the trial court on the point should, therefore, be taken to have been accepted by the first appellate court. Shri Chafekar''s contention that obstruction took place in the year 1972 and the suit presented on 8-11-1974 was barred by limitation is not acceptable. The argument is rejected.
Taking up the next contention of Shri Chafekar that the first appellate court having found that the suit was barred by limitation against defendant Manubai, the whole suit must have been dismissed because decreeing the claim against other defendants Nos. 1 to 3 would mean inconsistent decree, it is, no doubt, true that Manubai was impleaded as a defendant on 4-3-1977 after trial Court against preliminary issue No. 5 by order dated 1-3-1977 held that her presence was necessary before the court. One cannot, however, overlook the pleading in para 2 of the plaint which alleges that defendant No. 1 Kanji is ''Karta'' of Joint Hindu Family consisting inter alia of his mother, defendant No. 4, Mst. Manubai and in para 3 of the plaint that the lands in question belong to Joint Hindu family and are jointly recorded in the name of the defendant No. I and defendant No. 4. Defendant No. 1 Kanji and defendant No. 3 Sukhdeo in their common written statement in reply to para 2 admitted that there was joint Hindu family and defendant Kanji was its ''Karta''. In para 3 of the written-statement while admitting that Manubai''s name is jointly recorded as owner with Kanji at no state was it pleaded that she was not a member of the Joint Hindu Family of which defendant No. 1 Kanji was admittedly the ''Karta''. What has been stated above about written-statement of defendnts Nos. 1 and 3 is equally true about written-statement of Manubai, defendant No. 4 herself written-statement filed on 24-6-1977. though about defendant Jagdish, it was submitted that he was separate from other defendants no such plea in respect of defendant No. 4, Manubai was taken. Therefore, defendant No. 1 Kanji must be taken to have adequately represented Mst. Manubai.
In view of the above, Shri Chafekar''s reliance on State of Punjab v. Nathu Ram (MR 1962 SC 89 ) (supra) where land jointly owned by two brothers was acquired, award of compensation was jointly in favour of both and appeal by state had abated against one respondent and the Supreme Court held that the appeal could not proceed against the other respondent would not help the appellants defendants. The Full Bench decision of the Andhra Pradesh High Court in the
Where all defendants formed a joint Hindu family and minor defendants were subsequently added beyond period of limitation and the Allahabad High Court held that addition of minors was not addition of new defendants, Narhar v. Narain (AIR 1920 Nag 184) (supra) where with reference to Section 22 of Limitation Act, 1908, Nagpur Judicial Commissioner Court held that where a person is already represented in a suit by a party to the suit, his joinder is not the joinder of a new plaintiff or new defendant, within the meaning of Section 22 Limitation Act, Imdad Ahmad v. Raja Pateshri Partap Narain Singh (1910-37 Ind App 60) (supra) where the plaintiff''s suit as head of impartible raj to recover properties reverting thereto and the High Court held that under the assignment the propertis were no longer impartible and that the plaintiffs brother was a joint heir with the plaintiff and the High Court further held that the suit did not necessarily fail by reason of the plaintiff''s brother not having been originally made a party and of his having been joined at a later stage after his claim was barred by limitation, though in that case no objection on the ground of non-joinder had been raised by the defendant and the Judicial Committee of Privy Council did not dissent from the High Court''s decree but affirmed the court''s decree
Takingup the third contention of Shri Chafekar, from statement of the plaintiff Udiya (P.W. 1) himself para 2 it is seen that the plaintiff stated that he does not drive cattle through the field of defendant Kanji. He explained that cattle he meant cows and she buffalos. He also stated that he takes bullock cart and agricultural material ''Kheti Ka Saman''. Therefore, the two courts granting to the plaintiff right of way in respect of cattle independent of bullocks driving yoked and drawing the bullockcart ought not to have been granted. To this extent the judgment and decree passed by the lower court would have to be modified and the right of way granted in respect of the cattle to the plaintiff-rejected.
As a result of the aforesaid discussion, the judgment and decree passed by the lower court is modified. The right of way allowed to the plaintiff in respect of cattle otherwise than bullocks or buffalos driving, yoked and driving the cart is rejected and to that extent the judgment and decree passed by the lower court modified. Except for this the judgment and decree passed by the lower courts are upheld. The appeal is thus partly allowed. Considering the facts and circumstances of the case the parties shall bear their own costs of this appeal as incurred. Pleader''s fees according to schedule or certificate whichever is less. A decree be drawn up accordingly.
