IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 SA.NO. 269 OF 1996(F) -------------------------------- AS.34/1993 OF SUB COURT, KASARAGOD OS.350/1986 OF PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S) – RESPONDENT - DEFENDANT: ------------------------------------------------------------- THE CHENGALA PANCHAYAT, REPRESENTED BY THE EXECUTIVE OFFICER, CHENGALA. BY ADV. SRI.K.V.SOHAN RESPONDENT(S) – APPELLANTS - PLAINTIFFS: --------------------------------------------------------------- 1. K.M. RAHMATH BIBI, AGED 30 YEARS, W/O.C.M. MAHIN, MELPARAMBA P.O. KALANAD, KASARGOD. 2. B. SUBRAMANYA TANTHRI, AGED 43 YEARS, S/O. KRISHNA TANTRI, BEVINJE, CHENGALA VILLAGE, P.O. THEKKIL FERRY, KASARGOD. ADV. SRI.K.SHRIHARI RAO FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.269 of 1996 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of January, 2010 J U D G M E N T --------------------- This Second Appeal is brought from judgment and decree of learned Sub Judge, Kasargod in A.S. No.34 of 1993 reversing judgment and decree of learned Munsiff, Kasargod in O.S. No.350 of 1986. Respondent No.1/original plaintiff sued appellant for a decree for prohibitory injunction claiming that suit property originally belonged to Subraya Adiga who assigned the same to Vishnu Kakkilya as per Ext.A1, assignment deed dated 14.8.1984 and from him, respondent No.1 got it as per Ext.A3, assignment deed dated 12.3.1986 (during pendency of the suit respondent No.1 assigned the property in favour of respondent No.2 as per Ext.A2, assignment deed dated 12.3.1986 who was impleaded as supplemental plaintiff No.2). According to the respondents suit property along with the remaining extent in R.S. No.106/1C2 is enclosed by compound wall on the north which is in existence for the last more than thirty years. The property comprised in R.S. No.106/1C2 which was in the possession of Subraya Adiga was bounded on its west and east with S.A. No.269 of 1996 -: 2 :- compound walls. Property on the west of R.S. No.106/1C2 is in the possession of children of the late Abdulla. Alleging that appellant, the local authority is attempting to trespass into the suit property, respondent No.1 instituted the suit seeking the relief of injunction. Appellant contended that respondents have no title or possession over property comprised in R.S. No.106/1C2 which is assessment waste land belonging to the Government. Appellant denied title and its derivation claimed by the respondents and contended that sale deeds relied on by the respondents are fraudulently created. It is also the contention of appellant that it formed a road through the property comprised in R.S. No.106/1C2 in the year 1986. Learned Munsiff found that suit property is in the possession of respondents but held that since cause of action is not proved in that disputed road has already been formed, respondents are not entitled to any injunction. The suit was dismissed. That was challenged by respondents in the first appellate court. As seen from judgment of learned Sub Judge all the issues framed were again considered. First appellate court found that respondents are in possession of the suit property, contention of appellant that road was formed through that property cannot be accepted, respondents have sufficient cause of action to sue and accordingly granted relief in favour of the S.A. No.269 of 1996 -: 3 :- respondents. That is under challenge in this Second Appeal at the instance of the appellant/defendant. 2. The following substantial questions of law are framed for a decision. (i) Are the courts below proper in finding possession of plaint schedule property in the absence of any documentary evidence or sufficient oral evidence? (ii) When the revenue records state that plaint schedule property is assessment waste land belonging to the Government, are courts below legal and proper in holding possession of the plaint schedule property with the respondent basing only on Exts.A1 to A4 documents which are evidently created to prove possession and title? It is contended by learned counsel for appellant that Exts.A1 to A3 are not sufficient to prove title claimed by the respondents since Exts.A1 and A3 are executed immediately before the institution of the suit and Ext.A2 in favour of respondents came during the pendency of the suit. Apart from Exts.A1 to A4 no other documents S.A. No.269 of 1996 -: 4 :- are produced to show title and possession claimed by the respondents. On the other hand, Exts.B1 to B5 would show that suit property is assessment waste land belonging to the Government. According to the learned counsel without impleading Government and other interested persons as parties, courts below were not justified in rejecting Exts.B2 to B5 and finding title and possession with respondents. It is also contended by learned counsel that Ext.B1 series as well as Exts.C1 to C3 would show that a road was formed even before the institution of the suit, that road vested in the appellant under provisions of the Kerala Panchayat Raj Act and hence courts below were not justified in granting relief in favour of the respondents. Learned counsel for respondents in response contended that Exts.B2 to B5 are not sufficient to show that land involved is assessment waste land belonging to the Government. On the other hand, Exts.A1 to A3 would show that property belonged to the respondents as claimed by them. There is no contention raised by the appellant that the suit is bad for non- joinder of necessary parties and at this stage appellant cannot be allowed to raise such a contention. Further contention is that going by Exts.C1 to C3 appellant trespassed into the suit property immediately before the institution of the suit and committed S.A. No.269 of 1996 -: 5 :- mischief and that action conferred any right on the appellant. It is also contended by learned counsel that the rule regarding vesting can be applied only with regard to roads which existed and that provision did not enable the appellant to construct a road and claim that it vested in the appellant. 3. I stated that Exts.A1 to A3 are the documents of title relied on by the respondents to prove their entitlement over the plaint schedule property. Suit was filed on 5.11.1986. Of Exts.A1 to A3, Ext.A2 in favour of respondent No.2 is executed pending suit. Exhibit A3 under which respondent No.1 claimed title is dated 12.3.1986, i.e., just about eight months prior to the institution of the suit. According to respondent No.1, his assignor got title and possession of the suit property as per Ext.A1, sale deed dated 14.8.1984. Though respondent No.2 gave evidence as P.W2 and asserted his claim over the suit property he would say that (apart from Exts.A1 to A3) there is no other document to prove possession claimed by respondents and so far as the alleged possession of respondent No.1 is concerned, his (PW2) information is what respondent No.1 told him. It is pointed out by learned counsel for appellant that there is no evidence to show that respondents or their predecessors-in-interest ever paid revenue for the suit property so S.A. No.269 of 1996 -: 6 :- that, that would have been an indication of the possession claimed by them. 4. As against the above documents appellant produced Exts.B1 to B5. Exhibit B1 is the Resolution Book and Exts.B1(a) and B1(b) are the resolutions passed by the appellant referring to acceptance of tender or the proposal to construct the road through the disputed property. Exhibit B1(a) is dated 29.9.1986. Exhibit B2 is the order of assignment dated 3.11.1985 issued under provisions of the Land Assignment Rules. That concerned 21 cents in field No.106. As per Ext.B2 the land was proposed to be assigned to Vellachi. Exhibit B3 is the copy of sketch in L.A. No.249 of 1984 under which land was proposed to be assigned to the said Vellachi. Exhibit B5 is the plan of field No.106. Exhibit B3 would show that sub-division number was given for R.S. No.106/1C2 as A, B and C. R.S. No.106/1C2B is the portion proposed to be assigned to Vellachi while R.S. No.106/1C2C is the portion on the south and east of R.S. No.106/1C2B which according to the appellant takes in the disputed road as well. It is seen from Ext.B5 that the area sub-divided as R.S. No.106/1C2A was assigned to Abdul Khader, S/o.Mohammed. Of the southern portion of the area sub-divided R.S.No.106/1C2B is shown as the proposed site for formation of road from Indira S.A. No.269 of 1996 -: 7 :- Nagar to Kannyaduka. Report of the Advocate Commissioner shows that at the time he inspected the property on 11.11.1986 some road has been formed along the disputed property. 5. Appellant has a contention that suit property belonged to the Government as assessment waste land. First appellate court on the strength of Exts.A1 to A3 rejected Exts.B2 to B5 and found that possession of the suit property is with the respondents. True, this is a suit for injunction and appellant cannot raise a plea of jes tertii, i.e., neither appellant nor respondents but a third party is in possession of the suit property. But it is also relevant to note that this being a suit for injunction respondents have to prove possession claimed by them. In the light of Exts.B2 to B5, a finding that respondents have possession of the suit property without Government (and other interested parties, if any) on the party array was not warranted and any finding on possession in favour of the respondents could not also bind the Government or such other interested parties if any. Though it is not specifically pleaded by the appellant that the suit is bad for non-joinder of necessary parties, the plea raised by the appellant must have alerted the respondents and they should have impleaded Government (and such other interested parties if any) for an effective adjudication of the S.A. No.269 of 1996 -: 8 :- disputes involved including possession claimed by the respondents. Having regard to the facts and circumstances and in the light of Exts.B2 to B5 I am not persuaded to think without impleading necessary parties any decision regarding claim of respondents as to title or possession could have been made by the courts below. At the same time I am not inclined to non-suit the respondents for that reason. It is settled position of law that suit cannot be dismissed for non-impleadment of necessary parties without giving an opportunity to take steps in that regard. Consequence is that finding entered by the court below in favour of the respondents has to go. Though suit is of the year 1986 circumstances constrain me to send the case back to the trial court for fresh disposal after giving opportunity to the respondents to take necessary steps in the light of the observations made above. 6. It is asserted by the appellant that there is a well formed road through the disputed property which is denied by respondents. In view of the decision I have arrived at the condition of the disputed property has to be preserved as it is, until disposal of the suit afresh. Hence I direct the parties to maintain the present condition of the disputed way until disposal of the suit by the trial court or until appropriate order in that regard is passed by the trial S.A. No.269 of 1996 -: 9 :- court whichever is earlier. 7. Substantial questions of law framed are answered as above. Resultantly, Second Appeal is allowed by way of remand. Judgment and decree passed by the courts below are set aside. Case is remitted to the court of learned Munsiff, Kasargod for fresh disposal after giving respondents opportunity to take necessary steps as required under law in the light of the observations made above. Trial court shall expedite trial and disposal of the case, of course after giving both sides opportunity to take necessary steps and adduce further evidence if any. Parties shall appear in the trial court on 27.02.2010. Registry shall send back the records to the trial court immediately. Civil Miscellaneous Petition No.660 of 1996 shall stand disposed of vide judgment. THOMAS P.JOSEPH, JUDGE. Vsv S.A. No.269 of 1996 -: 10 :- THOMAS P.JOSEPH, J. =================== S.A. NO.269 OF 1996 =================== J U D G M E N T 27TH JANUARY, 2010 S.A. No.269 of 1996 -: 11 :-