RSA 214/2010 BEFORE THE HON’BLE MR. JUSTICE H. N. SARMA JUDGMENT & ORDER (oral) 1. This second appeal is directed against the judgment and decree dated 16. 09.2009 passed in Title Appeal No.4 of 2009 by the learned Civil Judge, Sonitpur , Tezpur dismissing the appeal and affirming the judgment and decree dated 22.12 .2008 passed in Title Suit No.52 of 2001 by the learned Munsiff, Tezpour. 2. Heard Mr. S. K. Singh, learned counsel for the appellant. 3. During the course of hearing, learned counsel for the appellant has rais ed and prayed for re-framing the following substantial questions of law that wha t was indicated in the memo of appeal. (i) Whether the judgment and decree passed by the learned trial Court is vit iated by illegalities in deciding the issue No.1 when the plaintiff could not sh ow any cause of action for the suit. (ii) Whether the impugned judgment and decree is liable to be set aside for n on-impleadment of Sri Poona Das who is a necessary party in the suit at the init ial stage of the suit though he was subsequently substituted as legal heir of de fendant No.1. (iii) Whether the substitution of the legal heirs of the defendant No.1 made o n 6.12.2003 without setting aside the abetment and condoning the delay in filing the substitution petition vitiates the impugned judgment and decree. 3. In support of his first contention with regard to first substantial ques tion of law, Mr. Singh has submitted, by referring to paragraph 9 of the plaint, that the specific case of the plaintiff is that on 29.11.99 the defendant Nos.1 , 2 and 3 forcibly trespassed into the suit land for which a criminal case being C.R. No.468 of 1999 was instituted against them wherein the learned S.D.J.M, So nitpur, Tezpur, found them guilty and convicted accordingly. Mr. Singh further s ubmits that on appeal the aforesaid order of conviction was set aside. It is fur ther submitted that in the aforesaid criminal case the specific case of the plai ntiff was that 29.11.99 and not on 17.6.99. Accordingly, learned counsel for the appellant submits that it cannot be said that there is no cause of action for t he suit. The case of the plaintiff is that the defendant/appellant without havin g any right, title and interest had trespassed into the suit land. When an alle gation of trespass is made such trespass would occasion a continuous cause of ac tion for the plaintiff to challenge in the Court of law. Whether the cause of ac tion arose on 29.11.99 or not but the fact remains that the land of the plaintif f has been trespassed without having any right, title and interest by the defend ant. In view of the above discussion, the aforesaid substantial question of l aw as framed by the learned counsel is decided against the appellant. 4. As regards the next substantial question of law relating to the non-impl eadment of Poona Das as one of the defendants in the suit, it is submitted by Mr . Singh that there having been allegation in the criminal case against Poona Das he was also a necessary party in the suit. But it is not to be found that there is no allegation in the plaint that Poona Das also accompanied in trespassing t he suit land along with the defendant No.1. Whether a party is a necessary party is to be decided on the averments on the plaint itself. In the instant case we find that there is no averment in the plaint that Poona Das also accompanied the defendant No.1 in trespassing the suit land. In that view of the matter I do no t find any illegality or irregularity in the findings arrived at by the learned Courts below in so far as deciding the issue No.3. 5. The last substantial question of law raised by Mr. Singh is that the def endant No.1 though expired on 30.3.2003 the application for substitution of his legal representative was filed on 7.7.2003 and by that time the suit was already abetted. The learned trial Court allowed the prayer for substitution by order d ated 6.12.2003. I have perused the order dated 6.12.2003 passed by the learned t rial Court. In the aforesaid order the learned trial Court has also referred to the decision of the Apex Court rendered in Kanakratnammal vs. Loganatha Mudaliar and another, reported in AIR 1965 SC 271, while allowing the prayer for implead ment of Sri Poona Das. The learned trial Court also quoted from the aforesaid ju dgment of the Supreme Court as follows : Though no suit shall be defeated for misjoinder or non-joinder of parties ther e can be no doubt that if the parties who are not joined are not only proper but also necessary parties to the suit the infirmity of the suit is bound to be fat al. Even in such cases, the Court can under Order-I Rule 10(2) direct necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties’ plea of limitation. The learned trial Court also considered the application filed under Section 22 R ule 4 of the CPC as well as the provisions or Order-I Rule 10(2) and upon such c onsideration impleaded Sri Poona Das as one of the party defendant. But the said substituted defendant did not prefer to file any written statement or other doc uments in support of his claim. He accepted the plea taken by his predecessor. T hat apart, as per provision of Section 99 of the CPC, no decree shall be reverse d or substantially varied nor shall any case be remanded, in appeal on account o f any misjoinder or non-joinder of parties or causes of action or any error, def ect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court, provided, however, there is nothing i n the Section that this provision is not applicable to non-joinder of a necessar y party. 6. Although the appellant took the plea of adverse possession in the suit i n support of their possession over the suit land but both the Courts below rejec ted the same contention and in this Court the same contention is re-agitated. Bo th the learned Courts below are concurrent in view that the plaintiff has right, title, interest and possession over the suit land and the defendants trespassed into the suit land. 7. In view of the above discussions, I do not find any merit in this appeal and the same shall stand dismissed.