JUDGMENT : A.K. RATH, J. This appeal challenges the correctness of the judgment and decree dated 29.3.1997 and 11.4.1997 passed by learned District Judge, Sambalpur in T.A.No.12 of 1991 dismissing the same and thereby confirming the judgment and decree dated 7.12.1990 and 28.3.1991 passed by the learned Munsif, Sambalpur in T.S.No.44 of 1989. 2. The appellants are the plaintiffs against a confirming judgment. Be it mentioned here that during pendency of the appeal, appellant no.1 died, whereafter his legal representatives have been substituted as appellants 1 (a) to 1 (d). Respondent no.1 died and was expunged pursuant to the order of this Court. Similarly, respondents 2 and 3 died, whereafter their legal representatives have been substituted as 2(a) to 2(e) and 3 (a) respectively. The dispute pertains to a strip of land appertaining to M.S. Plot No.1027, khata No.503, area Ac.0.01 dec. of mouza-Dhanupali. The case of the plaintiffs is that the suit schedule land is a passage. The same is a part of M.S. Plot No.1027 and not Plot No.1028. They use the passage for their egress and ingress from their residential house to the village road exclusively since the time of their forefathers. The defendants, who have no semblance of right, title and interest over the same, have managed to prepare M.S. Plot No.1028 as a part and parcel of M.S. Plot No.1027. When they threatened to obstruct the passage, the plaintiffs instituted the suit for declaration of easementary right of passage over M.S. Plot No.1027, correction of R.O.R. of plot no.1028 and permanent injunction. 3. Pursuant to issuance of summons, defendants 1, 2 and 4 entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that the suit is barred for noncompliance of notice under Section 80 C.P.C. on the State of Orissa, defendant no.7. It is their specific case that the suit passage is a part and parcel of M.S. Plot No.1028. The same is used by them as passage to their house and cow shed. 4. On the inter se pleadings of the parties, the learned trial court struck eight issues. To substantiate the case, the plaintiffs had examined three witnesses and on their behalf, two documents were exhibited. The defendants had also examined two witnesses. The same is used by them as passage to their house and cow shed. 4. On the inter se pleadings of the parties, the learned trial court struck eight issues. To substantiate the case, the plaintiffs had examined three witnesses and on their behalf, two documents were exhibited. The defendants had also examined two witnesses. While answering issue nos.1 and 2, the learned trial court came to hold that since the State of Orissa is necessary party to the suit and both the parties have admitted that the suit passage is a Basti plot, the State Government is the paramount owner of the same. The suit is not maintainable for non-compliance of notice under Section 80 C.P.C. on the State of Orissa, defendant no.7. With regard to issue no.3, the learned trial court returned a finding that both the parties have admitted that M.S. Plot Nos.1027 and 1028 are Basti plots. The State of Orissa, defendant no.7 is the owner of it. The State is the dominant owner and they are servient owner. A servient owner cannot deny the right of passage to another servient owner. Thus, the plaintiffs have no exclusive easementary right over the same. So far as issue nos.4 and 5 are concerned, it was held that the settlement map is correct and the same is prepared by observing all official procedure. Held so, the learned trial court dismissed the suit. 5. Assailing the judgment and decree dated 7.12.1990 and 28.3.1991 respectively passed by the learned trial court, the plaintiffs filed T.A.No.12 of 1991 before the learned District Judge, Sambalpur, which was eventually dismissed. 6. The Second Appeal was admitted on the following substantial questions of law:- “1. Whether the lower appellate court justified in holding that the question whether the suit land is part of plot no.1027 or 1028 is immaterial vitiates the entire judgment? 2. Whether the learned Appellate Court should have allowed the petition for amendment in view of its own finding that the State of Orissa is not a necessary party and that the plaint was wrongly drafted and there is no necessity of claiming right of easement as the appellants have claimed ownership over the suit land ? 3. 2. Whether the learned Appellate Court should have allowed the petition for amendment in view of its own finding that the State of Orissa is not a necessary party and that the plaint was wrongly drafted and there is no necessity of claiming right of easement as the appellants have claimed ownership over the suit land ? 3. Whether the suit is barred U/s 42 of Survey and Settlement Act for declaration of plaintiffs exclusive title over the suit and whether such findings of the learned Lower Appellate Court is against the settled principle of law?” 7. Heard Mr. Das, learned counsel for the appellants and Mr. Guru, learned counsel for the respondents 2(a) to 2(e) as well as Ms. Mishra, learned Additional Standing Counsel for respondent no.11. None appeared for respondents 3(a) to 10 in spite of valid service of notice. 8. The case of the plaintiffs is that the suit schedule plot is a part and parcel of M.S. Plot No.1027 and not 1028. They use the same for their egress and ingress from their residential house to the village road since the time of their forefather. The defendants assert that the suit passage is a part and parcel of M.S. Plot No.1028 and the same is used by them as passage to their house and cowshed. The plaintiffs have no right to claim the exclusive possession over the same. On a threadbare analysis of the evidence on record, both oral and documentary, both the court below came to hold that the passage is used as a common passage by both the parties. Thus, it is immaterial whether the same is a part and parcel of the M.S. Plot No.1027, which belongs to the appellants or M.S. Plot No.1028, which belongs to respondent no.6. The suit is for declaration of easementary right over M.S. Plot No.1027. The learned appellate court is quite justified in holding that it is immaterial as to whether the suit schedule plot is a part and parcel of M.S. Plot Nos.1027 or 1028. 9. The assertion of the learned counsel for the appellants that the learned appellate court having come to a conclusion that the State of Orissa is not a necessary party to the lis, ought to have allowed the application for amendment of the plaintiffs to delete the State of Orissa. 9. The assertion of the learned counsel for the appellants that the learned appellate court having come to a conclusion that the State of Orissa is not a necessary party to the lis, ought to have allowed the application for amendment of the plaintiffs to delete the State of Orissa. On a bare perusal of the application for amendment, it is evident that the amendment was not at all necessary for the purpose of determining the real question in controversy between the parties. The learned court below has rightly rejected the same. It is admitted by both the parties that both the plots i.e., M.S. Plots No.1027 and 1028 are basti plots and the State Government is the paramount owner of the same. The State Government is the dominant owner. 10. In M/s. Bajaj Hindustan Sugar & Industries Ltd. V. Balarampur Chini Mills Ltd. and others, AIR 2007 SC 1906 , the apex Court held that the language of Section 80(2) of the Code leads it to hold that if leave is refused by the original court, it is open to the superior courts to grant such leave as otherwise in an emergent situation a litigant may be left without remedy once such leave is refused and he is required to wait out the statutory period of two months after giving notice. 11. Thus, the suit is not maintainable for non-service of notice under section 80 C.P.C. But then the courts having decided the matter on merit, the said issue pales into insignificance. 12. With regard to substantial question no.3, since the suit has been decided on merit and the courts below have concurrently held that the passage has been used by both the parties, the same become academic and do not arise for consideration. 13. The logical sequitur of the analysis made in the proceeding paragraphs is that the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.