THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.766 of 2009 Dated:18.08.2009 Between: Aswadda Shiridi Sai Mandir. ….Appellant And The General Manager, South Central Railway, Secunderabad, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.766 of 2009 JUDGMENT: Plaintiff is the appellant. It is a registered Society established for the maintenance of Shiridi Sai Mandir. The said Society filed O.S.No.343 of 1992 on the file of the Court of the Principal Junior Civil Judge, Tanuku, against the General Manager, South Central Railway, Divisional Railway Manager, Vijayawada, and the Station Superintendent, Tanuku, for permanent injunction restraining the defendants from interfering with plaintiff’s Mandir. The suit was dismissed by the trial Court on 18.11.2003. The plaintiff’s appeal, being A.S.No.58 of 2003, was also dismissed by the Court of the IV Additional District Judge (Fast Track Court), Tanuku, on 29.12.2008. Aggrieved by the same, the present Second Appeal is filed. The case of the plaintiff/appellant is that, to start with, some unknown devotee installed the photograph of Sri Shiridi Sai Baba in the Government poramboke land in front of Railway Station, Tanuku, about five decades ago. Some devotees thereafter constructed a platform. In 1986, due to floods, the platform was collapsed, and sometime later people of the villages as well as railway staff constructed a small Mandir. The land where the Mandir is constructed is Government poramboke land and Railway Department has nothing to do with the same. Nonetheless, the employees of the Railway Department threatened to remove the Idol of Sai Baba. Apprehending such action, the suit was filed. The suit was opposed by the first defendant. The allegation that it has been the place of worship about fifty years ago was denied and it was alleged that Sai Baba Mandir was installed on the intervening night of 14/15.05.1992, that when third defendant tried to remove the Mandir, people objected, and that the land belongs to Railways. It was also alleged that the suit filed without giving notice under Section 80 of the Code of Civil Procedure, 1908 (CPC), and without complying with the requirements of Section 79 of CPC is bad in law. The trial Court framed three issues. Plaintiff examined two witnesses and marked Exs.A1 to A22. Defendants examined D.W.1 and marked Exs.B1 to B12. The Advocate Commissioner appointed to notice the suit property submitted report to the Court showing that Sai Baba Mandir is situated in the Railway property. Trial Court having considered the evidence, came to the conclusion that the temple is constructed in the railway property. Though the trial Court agreed with the plaintiff that even trespassers cannot be evicted without notice, it denied the permanent injunction holding that the suit is bad for non- joinder of Union of India. For coming to such conclusion, the trial Court relied on State of Kerala v General Manager, Southern Railway, Madras[1]. The appellate Court agreed with the trial Court and dismissed the appeal. Insofar as the disputed questions of fact, whether Sai Baba Mandir was constructed fifty years ago and whether it is constructed in the Railway property, both the Courts held against the plaintiff. Therefore, Second Appeal would not lie. Insofar as non-joinder of parties is concerned, it is well settled that when a suit is filed against Railways, the defendant should be Union of India, represented by its General Manager. But, Union of India was not made a party. The Second Appeal is misconceived, and the same is dismissed accordingly. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 18.08.2009 vs [1] AIR 1976 SC 2538