Yadlapalli Subba Rao (died) and Others vs Komarneni Venkata Subbaiah (died) and Others

D.H. Nasir, J.—Two questions mainly arise for our consideration in this second appeal; whether in the plaintiff''s suit for injunction was it necessary to implead the Government as a party and whether dispossession of the plaintiff subsequent to the suit created any disability on him to claim the relief of injunction. The second appeal is against the judgment of the 1st Appellate Court, which confirmed the judgment of the Trial Court.

The suit is for permanent injunction seeking to restrain the defendants from trespassing into the suit property. An injunction is also sought against the defendants from causing any obstruction to free passage as claimed by the plaintiff through the Varasandu from eastern bazaar into the plaintiff''s site, and a mandatory injunction for removal of the plants planted adjacent to the northern side of the plaintiff''s compound wall,

The plaintiff owns a terraced building in Narasayapalem village. The defendants 2 to 4 are the sons of the 1st defendant who owned a house in the said village. There is a galli bazaar on the eastern side of the plaintiffs house. The plaintiff has produced a sketch along with plaint in which the portion marked EF H I and F F.2 H H.1 is the tank poramboke (Komativari Cheruvu) which had allegedly been in the uninterrupted possession and enjoyment of the plaintiff for more than forty years. The plaintiff claims to have perfected his title by adverse possession. Further according to the plaintiff, as it was a low-lying area, he brought cart loads of earth and raised its level by spending a substantial amount He also constructed a kitchen house in the said site about 20 years back, as well as a toilet block. A compound wall from F to G to a length of seven yards leaving one yard width of the site on the northern side of the said wall for its support and also for the purpose of passage from the eastern galli bazaar into the poramboke site. The defendants had no right, according to the plaintiff to cause any obstruction to his passage to A.A.I F., F.1 into the tank poramboke. The plaintiff claims to have acquired and perfected his right of passage in the said varasandu to reach the tank poramboke site. The plaintiff was keeping manure heap and hayrick in the said site. The defendants occupied some site on the northern side of the F.2. H1 site and the defendants subsequently occupied the western side of the tank poramboke site. They were frequently quarelling with the plaintiff and were causing obstructions to the plaintiff''s passage through the varasandu. The defendants had no right to dig pits and grow plants adjacent to the plaintiff''s wall, according to the plaintiff, and were threatening to trespass into the plaintiff''s site towards the southern side of the plaintiff''s compound wall and site. The plaintiff, therefore, caused a notice dated 20- 2-1985 to be served on the defendants through his advocate. The 1st defendant gave a reply dated 15-3-1985 alleging that the plaintiff high-handedly erected the toilet block and the wall mentioned in the site occupied by the 1st defendant and that the plaintiff was unjustly and unlawfully claiming the site still further to the west of the toilet block. The claims advanced by the plaintiff that the entire site to the west and the north of the plaintiff''s construction belonged to the plaintiff etc., were refuted by the defendants. The plaintiff further alleges that in spite of his notice the defendants were making efforts to trespass into the plaintiff''s site and were trying to cause loss and inconvenience to the plaintiff.

While denying the averments made and the claims advanced by the plaintiff in the suit, the defendants further contended that the toilet block was constructed for the first time by the plaintiff only one year before, high- handedly by encroaching into the defendants'' site, and that the plaintiff also unlawfully erected the wall FG in the site belonging to the defendants. Further according to the defendants, the plaintiff was claiming an imaginary varasandu passage which was never in existence. The plaintiff had falsely shown the cattle manure heap to the west of the F.G. wall as if the same was belonging to him, but in fact the same belonged to the defendants'' family. Only the defendants'' family carted the cattle manure and the same was removed for spreading in their fields as the agricultural season had set in. The defendants and their family members had been consistenly demanding the plaintiff to remove the encroachments but the plaintiff failed to remove the encroachment and resorted to filing the vexatious suit.

It is further urged by the defendants that their ancestors had entered into the possession of the tank poramboke towards the south of their house several decades ago and that the entire site presently covered by the latrine and the bathroom and the site towards the west of the same on line H1 was in continuous and exclusive possession and enjoyment of the defendants alone. Further according to the defendants, the plaintiff was not entitled to the relief of injunction, as the plaintiff was not in possession of the disputed site.

Further according to the defendants the paramount owner was the State and, therefore, the State was a necessary and proper party to the suit, but the State was never made a party by the plaintiff. Further according to the defendants, the Revenue Authorities have also recognised the possession of the defendants in the disputed site.

Further according to the defendants, the plaintiff without praying for a declaration regarding his title, was not entitled merely to ask for the relief of injunction simpliciter. The defendants 2 and 4 were doing jobs and were residing elsewhere. The defendants 1 & 3 filed a memo adopting the written statement of the 4th defendant.

The learned Judge, while appreciating the oral and documentary evidence took note of the fact that the plaintiff did not file any documentary evidence in support of his case. It was also not disclosed in the oral testimony of P.W. 1 as to what was the extent and what was the survey number and patta number of the site which was claimed by the plaintiff to be in his possession.

On the basis of the oral and documentary evidence, the learned Trial Judge arrived at a conclusion that it was utter falsehood that B-forms were in plaintiff''s name. If it was so, the plaintiff would have obtained a certified copy thereof from the concerned taluq office. But P.W. 1 in his cross- examination stated that he could not say whether B-forms were booked in his name. A further observation is made by the Trial Court that the plaintiff has to make out his case and that he could stand or fall on the strength of his own case, but cannot thrive on the weakness of the defendants'' case in a suit for injunction. The learned Judge further took note of the fact that the plaint schedule did not contain any patta number or survey number regarding the site in dispute, which went to show that the plaintiff had nothing to show the identity of his property. The Trial Court further took note of the fact that Ex.B-1 which was a copy of the plaint in O.S. 163/1985 filed by the present plaintiff, showed that the defendants trespassed into the suit site and committed theft of manure heap, as stated in para three of the plaint and, therefore, an inference could safely be raised that the plaintiff was dispossessed subsequent to the suit. The learned Judge, therefore, observed that it was necessary for the plaintiff to amend the suit and to claim relief of possession instead of relief for injunction simpliciter.

The learned Judge of the Trial Court further observed that Exs.B-2 and B-3 (B-Forms of 1982 and 1954) were regarding Sy. No. 399 for one cent and three cents respectively and Ex-B-4 was patta issued in favour of the 1st defendant to the extent of 5 1/2 cents during 1982 and, therefore, it was clearly established that the defendants were in possession and enjoyment of the suit atleast from 1982 onwards, and that beyond F G wall, the plaintiff had no property and, therefore, the plaintiff''s theory of having a passage in the site to the north of FG line in the continuation of A A1 and F F1 was not acceptable because, it was not supported by any documentary evidence.

The learned Judge of Trial Court has also considred in his judgment, whether the Government was a necessary party or not and observed that the Government was the real owner and therefore, the necessary party and that the claim of adverse possession advanced by the plaintiff did not lie against the defendants only. The learned Judge of the Trial Court took into consideration the ratio laid down by the Mysore High Court in AIR 1960 Mysore page 317, in which it was held that if one person claims by filing a suit against third party ignoring the Government for prescription, the suit was required to be dismissed and held that the present suit was not maintainable at all without adding Government which was a necessary party for claiming adverse possession. He also referred to the decision of this High Court reported in 1985 (1) APLJ page 277, in which it was held that in a suit for injunction without declaratory relief, it was required to verify whether the person claiming the relief had a prima facie title. The learned Judge of the Trial Court, therefore, came to a conclusion that the present suit for injunction filed by the plaintiff without a relief for declaration precluded the plaintiff from obtaining a relief of injunction without showing prima facie title in plaintiff''s favour and the same was not sustainable. The attempt made by P.W. 1 in his cross-examination that the defendants were encroaching into his site with an intention to grab his site also established the fact that the plaintiff was not in possession of the suit land. The learned Judge also held that the plaintiff had not perfected his title by prescription or adverse possession because, the suit property admittedly was the property of the Government and that the defendants were in possession and enjoyment of the suit property from F.1 including the latrine and bathroom, which were constructed by the plaintiff on the western part of his house as also from the point F1 to H1, the defendants were in possession and enjoyment.

The 1st Appellate Court came to a conclusion after scrutinising the oral and documentary evidence that it was not disclosed clearly from the same as to what extent and which survey number and patta number was claimed by the plaintiff to be in his possession and enjoyment, and that if at all the plaintiff was in possession by encroaching upon the site belonging to the Government, the plaintiff could have pleaded before the concerned authorities his right for booking B-Memos, but the plaintiff did not file any document to show that he was in possession and enjoyment of the property even atleast on and from the date of filing of the suit. The 1st Appellate Court also took note of the fact that P.W. 1 had admitted in his cross-examination that B-Forms were in his name, but the same were not traceable, which gave a very strong reason to believe that the plaintiff had not perfected his title and did not succeed in establishing that he was in possession and enjoyment of the disputed part of the property, and eventually the 1st Appellate Court held that the Trial Court correctly appreciated the evidence on record and came to a correct conclusion and, therefore, the 1st Appellate Court held that there was no ground to interfere with the decision of the Trial Court and dismissed the appeal, confirming the judgment and decree in O.S. 46/85 dated ] 1-8-87 on the file of Principal Munsif-Magistrate, Bapatla.

On the question whether the Government was a necessary party to the suit or not, the decision of this High Court in S.A. No. 1778/1950. dated 19-10-1954 (The Municipal Council v. Simhadri Ranganayakulu) where in Subba Rao, C.J, held that there was an essential distinction between a necessary party and a proper party to a suit and that necessary parties were those parties which were necessary to the constitution of the suit and without whom no decree at all could be passed, but proper parties were those whose presence enabled the Court to adjudicate more effectually and completely the questions raised in the suit. It is further held that as the plaintiff claimed to be the owner and did not purport to have acquired any title by adverse possession against the Government, the Government was not a necessary party.

Before we examine the effect of the above decision on the facts of this case, we may have to ascertain whether the Government was the owner of the disputed property and whether in a suit for injunction simpliciter, the question of title could at all fall for the consideration of the Court. The learned Counsel for the appellant submitted that the respondents Were in fact blowing hot and cold together by pleading that they were themselves the owners of the disputed portion of the property and, therefore, it did not lie in the mouth of the respondents that the Government was a necessary party merely because of the defendants'' version that it was a poramboke land which belonged to the Government.

Indeed the defendants in their written statements did claim continuous and exclusive possession and enjoyment of the entire site covered by the latrine and bathroom and the site towards the west of the same. However, they did not claim any ownership right over the same. It is, therefore, not correct for the plaintiff to say that the defendants were blowing hot and cold together. The plaintiffs'' claim of possession spread over a period of more than 30 years as pleaded in the plaint did not move an inch further during the progress of the trial. The burden was very heavy on the plaintiff to convince the Court that he was in possession for more than 30 years, for enabling the Court to come to a conclusion whether the plaintiff had perfected his title by adverse possession. But, this burden has not been discharged by the plaintiff, and in fact for the purpose of proving adverse possession the party against whom such adverse possession was claimed was none other than the Government and, therefore, there can be no denial that the Government was a necessary and proper party. Perhaps, the plaintiff did not take trouble to do so because, from the very inception of the suit, the plaintiff was conscious of the fact that adverse possession spread over a period of more than 30 years did not possess the characteristics of a credible evidence which could be expanded into perfection of title by adverse possession. The plaintiff''s case, in fact is that he had acquired and perfected his right of passage to reach the tank poramboke site. If the disputed property was a poramboke site, the alleged right of passage claimed by the plaintiff for reaching the said site directly suggests that the Government was the necessary and proper party.

In a situation where the plaintiff claimed a declaration that he was the owner of a vacant site and that the Municipality has no right to interfere with any use made by the plaintiff and the main defence of the Municipality was that the title to the site vested in the Government, it was held that in cases where the plea of jus tertii is set up, it is generally considered desirable to make the person whose title is set up, a party to the suit to avoid multiplicity of litigation and that in cases where the interests of the public are involved and the ownership of the Government is in question, it is very desirable and sometimes quite necessary to make the Government a party to avoid multiplicity of proceedings. This infact is the view taken in The Municipal Council, Rajahmundry v. Simhadri Ranganayakulu, 1955 ALT 50 = (1955) 64 Law Weekly 33 (Andhra). which adversely affects the plaintiff''s case. The principle of non-joinder of essential party to the suit proceeding in fact proves fatal to the plaintiff''s case. In the case before us, both the lower Courts have held that the disputed land was of the ownership of the Government and, therefore, the facts of the case before us directly attract the ratio laid down in the aforesaid decision of A.P. High Court. Since the ownership claim has assumed the character of a disputed fact and in view of the fact that both the lower Courts have recorded the same finding on this question of fact, it is not necessary in this second appeal to examine the veracity of the said fact. Suffice it so say that in the wake of the aforesaid decision in The Municipal Council''s case (1 supra), the Government was undoubtedly the necessary and proper party to the plaintiff''s suit for injunction and non- joinder of the Government as a party defeats the plaintiff''s case that he perfected his title by adverse possession.

Out of the two questions with which we are mainly concerned in this second appeal; the first question whether it was necessary for the plaintiff to implead the Government as a party deserves to be decided against the plaintiff, mainly on account of failure on part of the plaintiff to discharge the burden of proving adverse possession and the consequent perfection of title.

We may also have to consider the effect of Section 34 of the Specific Relief Act which provides as under:

"34. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so".

It has also come on record that the plaintiff was forcibly dispossessed subsequent to the filing of the suit. However, the plaintiff did not amend the plaint for incorporating the relief of possession. Section 34 of the Specific Relief Act, therefore, comes in the way of the plaintiff.

On account of the alleged forcible dispossession of the plaintiff from the suit property, it was necessary for the plaintiff either to amend the plaint or to institute another suit within six months from the date of dispossession. Such a suit cannot be filed against the Government as provided in Clause (b) of sub-section (2) of Section 6 of the Specific Relief Act. The Government was not joined as a party to the present suit and, therefore, there was no constraint on the plaintiff to file a fresh suit or to amend the relief in the present suit complaining forcible dispossession, but the plaintiff has chosen not to resort to such remedy available u/s 6 of the Specific Relief Act.

On examining the nature and character of the plaintiff''s suit, it becomes quite evident that in spite of claiming perfection of title by adverse possession, P.W. 1 did not say anything in his oral evidence as to how he was in possession for more than 30 years. The plaintiff merely confined his attack only against the defendants and pleaded easement of right of passage, but even for claiming easement right, no reliable and convincing evidence either oral or documentary came on record at the instance of the plaintiff. The plaintiff appears to have adopted a peculiar and frivolous approach not only in pleadings, but also in oral evidence. To say the least, the plaintiff in this case is an indolent litigant and the law does not go to the rescue of such indolent litigants. After failing to bring on record any convincing oral or documentary evidence, even in the cross-examination of D.W. 1 (4th defendant) the plaintiff did not travel beyond suggesting to D.W. 1 in his cross-examination that he (plaintiff) constructed latrine and bathroom during 1984 and that the plaintiff owned a manure heap on the south of his hay-rick. The plaintiff did not care to put up his case in the cross-examination to D.W. 1 with regard to his possession spread over for a period of more than 30 years and the right of passage over the disputed portion of the land in the nature of an easement right. Such presciptive right is directly attributable to dominant heritage of the land for the beneficial enjoyment of which the easement right exists. The ownership of servient heritage in such cases falls for active consideration of the Court for coming to a conclusion whether the easement was imposed on the servient heritage. The plaintiff declines the Defendants'' ownership or occupancy of the servient heritage. He has, therefore, no locus standi to claim any prescriptive right against the defendants. He could have claimed such right against the Government only, because he pleaded ownership of servient heritage to be that of the Government. He prayed for perpetual injunction also on the basis of prescriptive right. On that ground also the Government was an inevitable party to the suit.

In the light of facts and circumstances of the case being stated as above, I have no hesitation in arriving at a conclusion that the plaintiff has failed to make out his case in this second appeal by abstaining from making any serious effort in bringing home to the Court the questions of law which were pleaded by the plaintiff-appellant in the appeal memo and the grounds stated in the appeal memo. This second appeal is therefore, dismissed. No costs.