JUDGMENT : R.N. Misra, J. - The Defendants are in appeal against the affirming decision of the learned Subordinate Judge, Bolangir in a suit for mandatory injunction brought by the Plaintiff-Respondent for a direction to the Defendants to remove the obstruction to the flow of water from the Plaintiff's premises to the village lane. He also prayed for restraining the Defendants from putting any further obstruction to such flow of water. He claimed damages of Rs. 200/-. 2. Admittedly the Plaintiff and the Defendants are near relations. The Plaintiff alleged that plot Nos. 770 and 771 fell to his share in an amicable partition. From the homestead on the aforesaid plots the accumulated water was being discharged through an outlet over a neighbouring plot to the road-side channel in plot No. 108. On 20-7-1965, the Defendants who are the immediate neighbours blocked the passage by putting big stones and thereby caused obstruction to the flow of water from the Plaintiff's premises into the channel by the road side. The Plaintiff wanted removal of the obstruction and an injunction restraining the Defendants from interfering in future with the flow of water from his premises. He also claimed recovery of damages of Rs. 200/-. 3. The Defendant No. 2 alone contested. He denied the Plaintiff's title to the aforesaid two plots. He also refuted the Plaintiff's assertion that he was discharging water over the land indicated in the plaint into the village passage. On the other hand the Defendants claimed that the Plaintiff had encroached upon a portion of their land and when the Defendants protested and disclosed their intention to ask for recovery of possession the Plaintiff came forward with the false case. The Defendants took the positive plea that the Plaintiff was discharging such water from his premises through his Bari, to the north side and not to the village road. It was further alleged that the Plaintiff had no right to discharge foul water in front of the Defendants' plot and cause in sanitary surrounding for the Defendants to live in. 4. It was further alleged that the Plaintiff had no right to discharge foul water in front of the Defendants' plot and cause in sanitary surrounding for the Defendants to live in. 4. Both the Courts below have concurrently found on the evidence on record that the Plaintiff had been discharging the water from his premises into the channel by the side of the village road in plot No. 108 and was utilising the vacant Government land lying close to his residential plot which intervened the Plaintiff's land on one side and the channel by the side of the village road on the other. While upholding the Plaintiff's claim for the mandatory as also permanent injunction they have negatived any relief of damages to the Plaintiff. It is against the affirming decree of the lower Appellate Court that the present Second appeal has been carried to this Court by the Defendants. 5. Mr. Dey did not seriously dispute the findings of fact about the Plaintiff discharging the surplus water from his premises into the road side channel. He, however, raised two contentions in law. According to him the suit was not maintainable in the absence of the State of Orissa who was the owner of the intervening plot between the Plaintiff's land and the road side channel. He next contended that there was no specific plea of easement made out in the pleadings much less was there any claim of easement of necessity. Mr. Dey's contention is that in the absence of the necessary plea about easement of necessity it was not open to the trial Court to hold, There is cogent and believable evidence on record to show that the plain tiff has no other passage to discharge the water from his premises in any other direction except through the disputed nala on the western side of his homestead. The evidence on record as has been revealed through the mouth of both parties, clearly indicate that the house of the Plaintiff is surrounded by land and houses of other persons on the northern and eastern directions through which the Plaintiff cannot divert the water from his premises. The only way through which the Plaintiff can divert the water is through the disputed passage and the water used to flow over a portion of the Government land lying vacant adjoining to the west of the Plaintiff's homestead. The only way through which the Plaintiff can divert the water is through the disputed passage and the water used to flow over a portion of the Government land lying vacant adjoining to the west of the Plaintiff's homestead. It is seen from the evidence on record that the said water after falling on the Government vacant land used to flow towards the southern direction to the village lane. This being the position in case the disputed passage is closed the Plaintiff will not be able to discharge the water from his homestead and the water will accumulate inside his house and the Plaintiff will not be able to use his house for any purpose. The aforesaid finding has received the over-all concurrence of the lower Appellate Court. It is true there is no clear assertion in the plaint of easement of necessity. In paragraph 5 the Plaintiff had alleged, That the Plaintiff and his ancestors have been discharging the water of their house and bari including the rain water for over a period of 50 years as of right and without interruption through an outlet in plot No. 771 shown in red in the map filed herewith. The Plaintiff, therefore, had alleged the acquisition of a prescriptive right to discharge water in the aforesaid manner and had not specifically pleaded an easementary right of necessity. But the learned Trial Judge seems to be right in coming to that conclusion on account of the admitted position at the trial. He has not in clear terms found an easement of necessity. He has found support for the Plaintiff's claim of an easementary right to discharge water in the manner indicated from the fact that there was no other outlet and the Plaintiff must have been discharging the accumulated water from his premises in that way alone as claimed by him. Mr. Dey is, therefore, not right in his criticism that the Courts below have found the existence of easement of necessity in the absence of any specific plea. 6. The other contention of Mr. Day is that in the absence of the State of Orissa who was the admitted owner of the servant tenement the land intervening the Plaintiff's premises and the channel by the road side the suit was not maintainable. In support of his proposition he relied upon a decision of this Court in Narahari Mohanti and Others Vs. Day is that in the absence of the State of Orissa who was the admitted owner of the servant tenement the land intervening the Plaintiff's premises and the channel by the road side the suit was not maintainable. In support of his proposition he relied upon a decision of this Court in Narahari Mohanti and Others Vs. Ghanashyam Bal and Others. He also relied upon a decision of the Mysore High Court in A. Lakshminarayana v. Hirachand AIR 1960 Mys. 317. The Orissa decision on facts has to be distinguished. There an exchange of communal land by Collector was being attacked in the Civil Court in the absence of the Collector before the Court. This Court held that in the facts of that case the Collector was a necessary party. In the Mysore case the owner of the servient tenement was not before the Court and a right of easement was being declared binding the servant tenement, without the holder of the servant tenement being before the Court. In such premises the Mysore High Court was right in holding that the suit has to fail. 7. On the other hand, reliance is placed by Mr. Misra who appeared for the Respondent on two decisions-one reported in Sabirer v. Behari Mohan Pal AIR 1928 Jal. 33, and the other in Kedaruddin Ahmad and Others Vs. Asrafali and Others. In the earlier Calcutta case a Division Bench of that Court came to hold that the ultimate owners of the land were not necessary parties if they were not resisting the easementary right. In the subsequent case Dr. Mukherjee, J. as his Lordship then was, came to hold that non-joinder of the owner of the servant tenement who was not obstructing the easement was not fatal to the suit. In this case there is no allegation of any resistance from the State of Orissa to the flow of water over the Government land intervening between the Plaintiff's premises and the channel by the side of the village road. The entire obstruction came from the Defendants and the Plaintiff is really aggrieved by the Defendants' action. There may be oases where the owner of the servant tenement would not resist and the resistance would come from quite a different quarter. The entire obstruction came from the Defendants and the Plaintiff is really aggrieved by the Defendants' action. There may be oases 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 would accordingly negative both the contentions of Mr. Dey. Consequently the appeal has to fail. It is dismissed. I, however, consider it is a fit case where the Appellant should not be called upon to bear the costs of this appeal.