A suit cannot be defeated by reason of the non-joinder of a necessary party, but if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal.

JUDGMENT :

Siddhartha Roy Chowdhury, J.:

1. Challenge in this appeal is to the judgment and decree passed by learned Civil Judge, Senior Division, Kalna in Title Appeal No. 11 of 2011, affirming thereby the judgment and decree passed by learned Civil Judge, Junior Division, Kalna, in Title Suit No. 153 of 1993, dismissing the suit for declaration and permanent injunction filed by the plaintiff/appellant.

2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.

3. To appreciate the appeal in its proper perspective it is expedient to narrate the facts of the case in brief. The appellant (hereinafter referred to as ‘plaintiff’) filed the suit for declaration of title and permanent injunction. It is adverted that one Rabindra Nath Gupta was the owner of the suit plot, after the demise of Rabindra Nath Gupta his legal heirs and successors stepped into his shoes and transferred the property (having an area of 9 decimal out of 11 decimal) in favour of the plaintiff by a registered deed of sale. The remaining area of 2 decimal on the north-east corner is owned and possessed by Khokan Saha @ Rathindra Nath Saha. There is a tile shed room on the south-eastern side of the suit plot which is owned and used by plaintiff and his family members as drawing room. The said room is connected to municipal road and accessible to public. The defendants want to use it as club room. The defendants made attempts to take possession of the property by force. The defendants have no right title interest over the suit property. Plaintiff was contemplating construction of a boundary wall encompassing the property purchased but the defendants threatened the plaintiff to dispossess him from the said tile shed room on 28th May, 1993. Hence by filing the suit the plaintiff prayed for decree for declaration of right title interest in respect of suit property, permanent injunction and other relief available under the law.

4. The defendants Rathindra Nath Saha, Kamal Modak, Ganesh Das, Samir Saha and Kalpana Saha contested the suit by filing written statement denying all material allegations. It is the specific case of the defendants that suit property having area of 11 decimal of land, was owned by Rabindra Nath Gupta, he was survived by his sons Bishnu Pada Gupta, Dilip Gupta, Bimal Gupta, Kumar Gupta, Dipti Gupta and Nirmal Kumar Gupta; who transferred 2 decimal of land to Sripati Ruidas @ Sripati Das with a definite demarcation. Sripati Das while possessing the property by constructing house, sold and transferred the same to Kalpana Saha. Remaining 9 decimal of land was owned by the Guptas. Rabindra Nath Gupta was the absolute owner of the aforesaid property. 3 decimal of land to the north-western side of the property, owned by Kalpana Saha, was lying as waste land and in the year 1974 Nabaratna club took possession of the said 3 decimal of land and constructed a club room and a podium or platform was constructed to the west of the club room where they have been performing Kali Puja for more than 25 years. The club members used to play indoor games in the club room. There is a passage and a gate leading to the club room from the municipal road. The club members planted one sapling of Krishnachura 25 years ago which is still standing over there and has become a big tree, which is also possessed by club members. The club has acquired title by way of adverse possession in respect of said 3 decimal of land. The defendants prayed for dismissal of the suit. Learned Trial Court after considering the evidence on record adduced by the parties was pleased to dismiss the suit. Challenging the order of dismissal, the plaintiff preferred an appeal being Title Appeal No. 11 of 2011.

5. Learned First Appellate Court did not find any reason to differ with the view expressed by learned Trial Court. Consequently the appeal was not accepted. Hence the second appeal which was admitted to address the following substantial questi