Arjuna Goundan and Others vs Jayakeerthi Nainar and Others

Happell, J.—The appellants were the plaintiffs in O.S. No. 145 of 1943 in the Court of the Principal District Munsiff of Arni. They brought

the suit in representative capacity on behalf of the villagers of Uttur for declaration that they were entitled to take water by means of a sluice at a

certain point from a supply channel before it reached the tank which it supplied and which belonged to the villagers of Othalavadi. The learned

Principal District Munsiff of Arni decreed the suit but on appeal the Subordinate Judge of Vellore set aside the decree and remanded the suit for

the Government to be brought on record as a party defendant. It is not disputed that the Government is the paramount owner of the channel in

question in the suit and that the entire right to it vests in the Government. That being so, the learned Subordinate Judge was of the opinion that there

could be no complete and effective adjudication in the absence of the Government since any declaration given or injunction granted in favour of the

plaintiffs could be rendered inoperative if the Government refused to carry it out.

It is argued for the appellants that the Government was not a necessary party to the suit as no remedy was sought against it and, that being so, it

was open to the plaintiffs to make the Government a party or not as they thought fit. In support of this contention the learned Counsel for the

appellants cited several decisions but in my opinion they do not really assist him. In Basavana Gowd v. Narayana Reddi (1930) 61 M.L.J. 563 :

ILR 54 Mad. 793, it was no doubt held that the Secretary of State was not a necessary party although the Government was the owner of the

irrigation channel in question in the suit. In that case, however, the Secretary of State had in the first instance been made a party and he did not

contest the suit, praying only that the paramount right of the Government to do everything necessary in the general interests of the distribution of

water might be recognised in the decree. It is true that Wallace, J., gives as a reason for striking the Secretary of State out of the suit that no relief

was sought for against him, but at the same time the principal reason seems to have been that the Secretary of State raised no contest and that to

keep him on record would merely have complicated the decree by recitals with regard to the rights of the Secretary of State. Mahanakali

Lakshmiah and Another Vs. Karnam Narayanappa and Others, again does not help the appellants. In that case the Secretary of State was the

owner of the channel and it was observed that the Court would not be justified in granting a declaratory decree which was discretionary in his

absence. In the present case the Government is not only the owner of the channel but by an order dated the 7th of March, 1920, issued by the

Government it was plainly stated that the appellants had no right to take water before the channel reached the Othalavadi villagers'' tank and that if

they had any objection to the ruling they were at liberty to file a suit. The position of the Government is therefore clear. They are the owners of the

channel and they have informed the appellants that they have no right to divert water from it before it reaches the supply tank. This distinguishes the

case from unreported decision of Horwill, J., in Muthuswami Goundar v. Kumar a Pillai A.A.O. No. 450 of 1946, which has been relied on for

the appellants. In that case the Government was not made a party but it is clear that this was not essential as the Government supported the

plaintiff''s case. The present case seems to be on all fours with the case of Pasumarthi Subbaraya Sastri Vs. Mukkamala Seetha Ramaswami, ,

decided by Pakenham Walsh, J., in which it was held that the Municipality was a necessary party in a suit to eject the defendant from a site which

the defendant pleaded belonged to the Municipal Council. In my judgment, therefore, the view taken by the learned Subordinate Judge that the

Government was a necessary party to the suit is correct and accordingly the order of remand was justified. In his order of remand the learned

Subordinate Judge gave the appellants one month''s time in which to bring the Government on record. It is pointed out that this may cause hardship

to the appellants as two months'' notice u/s 80 of CPC has to be given. The order of the lower appellate Court will therefore be varied to the

extent that three months'' time from the date of the pronouncement of this judgment is granted for bringing the Government on record. Subject to

this modification the appeal is dismissed with costs.