Judgment :- 1. Plaintiffs in O.S.418 of 1982 on the file of the Munsiff's Court, Muvattupuzha are the appellants in this Second Appeal. They filed the said suit for a declaration of an easement right of way over the plaint'C' schedule property which according to them passes through the property of the defendant-respondent. The claim in the plaint was on the basis of a right by prescription. The specific plea was that they were using the plaint 'C' schedule pathway openly, as of right and without interruption from the year 1121 M.E. onwards, when they started their residence in the plaint'A' schedule property that they had purchased in that year. The claim of easement made by the plaintiffs was repudiated by the respondent-defendant in his written statement. He contended that the plaintiffs were not using any pathway as demarcated in the plaint 'C' schedule, that there was only a varamba between his fields, that the plaintiffs were never using it and that in any event they had not acquired any right by prescription. 2. It was averred in the plaint that the defendant was obstructing the right of way claimed by the plaintiffs over the plaint'C' schedule and hence the suit was being filed against the defendant. In defence the defendant pointed out that the plaint 'C' schedule pathway as described by the plaintiffs passes not only through his property but the properties of others and those others are also necessary parties to the suit. The report of the Commissioner, Ext. Cl also indicated that there were three other property owners through whose properties the alleged way claimed by the plaintiffs passed through. Though no specific issue as to non joinder of parties was framed by the trial court, this aspect was urged before the trial court and the trial court took the view that the suit for declaration of the right of easement without impleading all the servient owners, that is, owners of all the properties through which the alleged pathway passes, was not maintainable as those other servient owners were also necessary parties. Though the trial court took the view that the plaintiffs have established a right of way it declined relief to the plaintiffs on the finding that all the necessary parties were not impleaded in the suit. It of course also found that the plaintiffs did not really prove a cause of action for the suit. Though the trial court took the view that the plaintiffs have established a right of way it declined relief to the plaintiffs on the finding that all the necessary parties were not impleaded in the suit. It of course also found that the plaintiffs did not really prove a cause of action for the suit. Aggrieved by the dismissal of the suit the plaintiffs filed A.S. 212 of 1985 before the District Court, Ernakulam. The plaintiffs contended before that court that it was not necessary to implead the other servient owners and it is -sufficient if the plaintiff impleaded the particular servient owner against whom alone he claims relief, as according to the plaintiffs the other servient owners were not in any way interfering with their right of way. In addition to supporting the decision of the trial court on the question of nonjoinder the defendant also put forward a contention that no right of way has been made out by the plaintiffs so as to entitle them to the decree claimed. 3. The Lower Appellate Court did not go into the evidence in the case or the merit of the claim of easement made by the plaintiffs. But it agreed with the trial court that a suit for declaration of an easement right of way will not be maintainable without all the servient owners being impleaded in the suit. It therefore agreed with the decision of the trial court that the suit was liable to be dismissed on the ground of non joinder of other servient owners. The Lower Appellate Court also observed that the plaintiffs have another pucca road leading from their property to a public road and therefore it cannot be said that they have made out a case of easement. Thus the Lower Appellate Court dismissed the appeal though it entered a finding that the plaintiffs did have a cause of action, in disagreement with the trial court. 4. In this Second Appeal the learned counsel for the appellants submits that the view of the courts below that in a suit for declaration of the right of easement the owners of all the servient tenaments through which the way passes are necessary parties, is not correct. 4. In this Second Appeal the learned counsel for the appellants submits that the view of the courts below that in a suit for declaration of the right of easement the owners of all the servient tenaments through which the way passes are necessary parties, is not correct. He submits that he need file a suit only against" such of the servient owners who obstruct his right of way, that the court is bound to adjudicate the disputes as between him and the obstructing servient owner. He also points out that even if such a decree may not bind the other servient owners his suit cannot be dismissed as against the servient owner against whom he has filed the suit merely on the ground that he has not impleaded the other owners through whose properties the way passes. The learned counsel for the appellants also submits that their claim of easement in the suit was one by prescription and the fact that another way was available was totally irrelevant and therefore the Lower Appellate Court was clearly in error in observing that the easement cannot be said to be established because of the existence of an alternate way. It if further submitted that in view of the fact that the plaintiffs' claim has not been considered on the merits by the Lower Appellate Court, the Lower Appellate Court decree requires to be set aside and the matter remanded to that court for deciding the question as to whether the plaintiffs have established a right of way by prescription on the merits of the case. The counsel for the respondent on the other hand submits that what is sought by the plaintiffs is the declaration of a right of way over the entire plaint 'C' schedule, that the plaint 'C' schedule passes not only through the respondent's properties but also the properties of three others and that a relief of declaration of right in respect of that pathway could be had only in a suit where all the owners through whose properties the alleged pathway passes are impleaded. In other words he submits with emphasis that the other alleged servient owners are necessary parties to the suit in so far as it takes in the relief of declaration of the right of way over their properties as well. In other words he submits with emphasis that the other alleged servient owners are necessary parties to the suit in so far as it takes in the relief of declaration of the right of way over their properties as well. He fairly submitted that he cannot support the observation of the Lower Appellate Court that since the plaintiffs have another way the claim of easement cannot stand as the claim was not one of necessity but was one by prescription and he can only succeed by showing that the claim of right has not been established or that the right claimed has been lost by non-user or otherwise. 5. 0.1, R.9 of the Code of Civil Procedure specifically provides that no suit shall be dismissed on the ground of non joinder of parties unless the party left out is a necessary party to the suit. It also provides that in cases where the court can adjudicate on matters between the parties before it, it shall proceed to decide such dispute. As noted already, the court is disabled to do this only in a case where the presence of the party is absolutely necessary and he had been left out. The question therefore is as to whether in a case of the present nature where the right of way is claimed through a pathway that passes through the properties of various owners and the plaint relates only to obstruction by one, the others are necessary parties within the meaning of the proviso to 0.1, R.9 of the Code of Civil Procedure so as to enable the court to refuse to deal with the matter in controversy as regards the rights and interests of the parties actually before it. The question whether all the servient owners are necessary parties in a suit for declaration has been the subject matter of some difference of opinion. In the decision reported in Madan Mohan Chathopadhyaya v. Akshoy Kumar Baruri (14 Cal. WN15) a Division Bench of the Calcutta High Court (Jenkins, C. J. and Mookerjee, J.) inter alia stated "to begin with, there is the initial difficulty that we have not before us all the servient owners, and how we can pass a decree based on easement in that state of the record it is difficult to see". WN15) a Division Bench of the Calcutta High Court (Jenkins, C. J. and Mookerjee, J.) inter alia stated "to begin with, there is the initial difficulty that we have not before us all the servient owners, and how we can pass a decree based on easement in that state of the record it is difficult to see". This broad statement was subsequently explained by N.R. Chatterjea, J. in the decision reported in Madan Mohan Chakravarthy v. Sashi Bhusan (19 Cal.WN 1211). His Lordship explained the above statement made in 14 Cal.WN 15 as follows: "In the case cited above, all the servient owners were not made parties and the learned judges observed that it was difficult to see how a decree based on an easement in that state of the record could be passed. But 'all the servient owners' I think, mean all the servient owners who had raised objections to the plaintiffs' right of way and against whom there was a cause of action and do not refer to the owners of all the tenements over which the way passed. If a way passes over 50 different parcels of land owned by 50 different persons, and the owner of the fiftieth parcel obstructs the way on his own land and the owners of the remaining parcels do not raise any obstruction nor even deny plaintiffs' right, I do not think the latter are necessary parties or can be joined in a suit against the person who obstructs the way...." This. clarification of the earlier observation made in 14 Cal.WN 15 was accepted by a Division Bench which included Chief Justice Jenkins himself in appeal from the decision reported in 19 Cal.WN 1211. There was further controversy in the Calcutta High Court as a Division Bench consisting of justice Mookerjee and Justice Fletcher in the decision reported in Haran Sheikh v. Ramesh Chandra (AIR 1921 Cal. 622) without referring to the earlier decision referred to above stated that in a case "where the decree is to be made for declaration of a right of way as a village road over the disputed land and for removal of an obstruction thereon, if it is discovered that a person interested in the servient tenement has not been made a party to the suit, the Court will not proceed to make a decree. The decree, if made, must be infructuous; if a suit is instituted by the absent person for an injunction to restrain the successful plaintiff from executing the decree, there will be no possible answer to the prayer". The position was attempted to be reconciled by Justice B.K.Mukherjea in the decision reported in Kedaruddin Ahamad v. Sm. Samsur Mata, (41 Cal.WN 769) where the view was taken thai it was not necessary to add as defendants those persons who are not parties to the act of obstruction complained of. The said decision 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. 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. 6. The matter is really not res integra as far as our court is concerned. His Lordship K.G. Balakrishnan in the decision 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)(i) SCR 676)wherein it was held, "necessary parly 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. 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,..." After observing the decision of the Calcutta High Court the learned judge held that the suit without impleading the servient owner through whose land the pathway passes was not bad for non joinder of parties and even without impleading the owner of the servient tenement the court can pass an effective decree as against one who obstructs the pathway. I am in respectful agreement with the view expressed by Mr. Justice K G. Balakrishnan in the above said decision. In a case where the obstruction is made only by one of the servient owners it is not necessary or appropriate to compel the plaintiff to sue all the other servient owners which would really amount to inconvenience to those servient owners and in some cases even to an abuse of the process of the court by bringing in persons who had nothing to do with the cause of action that is alleged by the plaintiff. Whether the decree in the absence of these persons would bind them or not is not a material consideration in deciding the question as to whether the court can deal with the matter in controversy as regards the rights and interests of the panics actually before it. The argument that the claim of a relief of declaration would affect the other servient owners and in their absence no decree can be granted can be met by pointing out that the declaratory decree binds only those against whom it is obtained. The argument that the claim of a relief of declaration would affect the other servient owners and in their absence no decree can be granted can be met by pointing out that the declaratory decree binds only those against whom it is obtained. The cause of action put forward is only against the defendant in the suit and that cause of action can be tried and decided in his presence. It cannot therefore be said that the suit will not lie without impleading all of the servient owners through whose properties the plaint's' schedule pathway passes in this case. I therefore disagree with the decision of the Lower Appellate Court that the suit is bad for non joinder of necessary parties. 7. The Lower Appellate Court has not adverted to the fact that the claim of easement is by prescription in the case on hand, and that a right by prescription is not lost by the mere fact that an alternate pathway is available to the plaintiffs. S.41 of the Easements Act specifically provides that an casement of necessity is extinguished when the necessity comes to an end. Here the plaintiffs have not put forward a case of easement of necessity and therefore the mere fact that there is an alternate pathway or road available to the plaintiffs is no ground to hold that they cannot have a right of easement by prescription. Only if the conditions laid down in S.42 to 46 of the Easements Act are satisfied or when the right is ceased to be enjoyed for an unbroken period of twenty years as provided in S.47 of that Act, the right can be said to be lost. The Lower Appellate Court is therefore incorrect in its observation that the existence of a road disables the plaintiffs to claim the easement they have claimed in the present suit. The said finding or observation is also therefore unsustainable and is liable to be vacated. 8. This court sitting in Second Appeal in this case does not have the benefit of a clear finding on the claim of right made by the plaintiffs in the case. This court is therefore constrained to remand the matter to the Lower Appellate Court to enable that court to render a clear finding on the question as to whether the plaintiffs have made out a case of casement by prescription. This court is therefore constrained to remand the matter to the Lower Appellate Court to enable that court to render a clear finding on the question as to whether the plaintiffs have made out a case of casement by prescription. I therefore set aside the judgment and decree of the Lower Appellate Court and remand the appeal, A.S.212 of 1985 to that court for a decision on the question as to whether the plaintiffs have made out a case of easement by prescription over the plaint 'C' schedule as claimed by them in the light of the evidence and the circumstances brought out in the case. The Second Appeal is thus allowed and the decree of the Lower Appellate Court is set aside and the appeal A.S.212/1985 is remanded to the Lower Appellate Court for fresh decision in accordance with law, and on the merits of the case. The parties shall appear before the Lower Appellate Court on 1-9-1992. Being an appeal arising from a suit of the year 1982 the Lower Appellate Court will dispose of the appeal as expeditiously as possible. The costs of the Second Appeal shall abide the result of the suit.