This second appeal challenged the concurrent lower court decrees in a suit for declaration and injunction over Kuttai Poromboke land. The High Court held the suits untenable as the Government was not impleaded and allowed the appeal.
The second appeal is allowed; the judgments of the Courts below are set aside; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2017
CORAM
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
S.A.No. 82 of 1999
Kumarasami Padayachi
...Appellant/Appellant/ Respondent
Vs.
Muthusami Gounder ...Respondent/Respondent/ Plaintiff
Prayer:- This Second Appeal is filed under Section 100 of Civil Procedure Code against the Judgment and decree of the Court of the learned Subordinate Judge, Cuddalore in A.S.No.95 of 1992 dated 12.12.1996 in confirming the judgment and decree of the Court of the District Munsif, Vridhachalam in O.S.No.1165 of 1984 dated 26.02.1990.
For Respondent : Mr.R.Sunilkumar
JUDGMENT
The suit for declaration and injunction in alternate, possession of the suit property filed by the respondent herein in respect of Kuttai Poromboke was decreed by the trial Court. The first appellate Court confirmed the judgment and decree of the trial Court. Against the concurrent findings of the Courts below, the defendant has filed this second appeal raising the following substantial question of law :-
".......this Court is of the considered view that the first appellate Court had come to the right conclusion in reversing the judgment and decree of the trial Court, dated 30.07.1993, made in O.S.No.108 of 1989. When the plaintiffs had filed the suit for a declaratory relief to recognise their customary rights in the suit property, it is for them to prove, by sufficient evidence, that they have been enjoying such rights for a considerable length of time. Further, the plaintiffs had failed to show that they had filed the suit in a representative capacity, under Order 1 Rule 8 of the Civil Procedure Code, for themselves and on behalf of the other member of their community. When it is clear from the Government records that the suit property is a Government Poramboke the plaintiffs ought to have impleaded the Government, as a party to the suit. Non impleading of a necessary party is fatal to the maintainability of the suit. Further, it is found that Jaganatha Pandithar the father of the plaintiff had requested for a patta being granted to him in respect of the suit
property. However, the request had been rejected on the ground that the suit property is a Government Poramboke. While so, it is not open to the plaintiffs to claim customary rights of fishing and of using the pond, which is said to be known as “Ambattan Kuttai”, in the suit property, without impleading the Government as a party. When the plaintiffs have stated that the suit property is for the common use of the members of the barber's community, as well as the other villagers, there cannot be a declaratory relief granted in favour of the plaintiffs, as prayed for by them in the suit.....”
-s/d-
Assistant Registrar(CSIII)
True Copy
Sub-Assistant Registrar
rts
To
2 issues framed by the court
Whether the suit for declaration and injunction in respect of Government Kuttai Poromboke is maintainable without impleading the Government as a necessary party.
Whether the Courts below erred in not framing an issue and concluding that the non-joinder of the Government as a necessary party rendered the suit bad for maintainability.
Colour shows how this judgement treated each authority
Barbers rep by their representatives, Gopalakrishnan and Pavadaisamy Vs. KalyanasundaramReferred¶18
MANU/TN/2594/2009 Barbers rep by their representatives, Gopalakrishnan and Pavadaisamy Vs. Kalyanasundaram
2 provisions across 1 enactments
Kumarasami Padayachi
Muthusami Gounder
G. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
