IMPORTANT POINT
The main legal point established in the judgment is that a party must come with clean hands and have locus standi to maintain a suit. Non-joinder of a necessary party can render a suit non-maintainable.

ORDER :

1. This second appeal, under Section 100 of the Code of Civil Procedure, 1908, filed by the appellants – original plaintiffs, arises from the impugned judgment and decree dated 10.05.2019 passed by the learned Additional District Judge, Rajkot at Dhoraji in Regular Civil Appeal No.6 of 2019, confirming the judgment and decree dated 07.08.2018 passed by the learned Additional Senior Civil Judge, Dhoraji in Regular Civil Suit No.1 of 2015 dismissing the suit.

2. The brief facts of the present case are as under :

2.1 The lands of the parties are adjoining lands as such. The dispute between them is essentially about the way for the disposal of rainwater. The per the allegations of the plaintiffs, defendants No.1.1 to 1.4 have encroached upon the Government land. From the record, it transpires that the plaintiffs have also encroached upon the Government land, which is suppressed by the plaintiffs. Therefore, the plaintiffs have filed a suit being Regular Civil Suit No.1 of 2015 before the learned trial Court for declaration and permanent injunction, whereby the plaintiffs have prayed to declare that the plaintiffs have right of way for disposal of rainwater from the said alleged acquired land for Venu Canal and further to declare that the plaintiffs have right to use the said canal for taking water and for other activities related to the Canal. The plaintiffs have further prayed for direction to defendant No.2, who is the Deputy Engineer, Venu Irrigation Planning Office to take care and maintain the land of the Canal and to remove the illegal encroachment upon the land of the said Canal by way of a permanent injunction. The plaintiffs have further prayed to restrain defendants No.1.1 to 1.4 not to obstruct the plaintiffs from using such land of Canal and from taking water from such Canal.

2.2 The learned trial Court has, after considering the various evidence – documentary as well as oral, framed the issues and decided them accordingly and thereby rejected the suit vide judgment and decree dated 07.08.2018, on merit.

2.3 Being aggrieved, the plaintiffs have preferred an appeal being Regular Civil Appeal No.6 of 2019 before the learned appellate Court. The learned appellate Court below has framed the points for its determination and decided it accordingly, after considering the rival submissions of the parties and also after evaluating the evidence on record and dismissed the appeal, on merit and confirmed the judgment and decree passed by the learned trial Court.

2.4 It is these judgments and decrees passed by both the Courts below, which are challenged in this second appeal by the appellants – original plaintiffs before this Court.

3.1 Learned advocate Ms. Heta Panchal for the appellants has submitted that the plaintiffs have primarily prayed for the permanent injunction qua and against defendants No.1.1 to 1.4, who are private persons and therefore, the rejection of the prayers and claim of the plaintiffs for the non-issuance of the statutory notice under Section 80 of the CPC is contrary to the provisions of law.

3.2 She has further submitted that the bare reading of Order XXVII Rule 5A of the CPC will clarify that for the prayer of declaration of the powers of the public officer, the concerned Government is not necessitated to be impleaded as a party.

3.3 She has also submitted that the public officer, though joined as defendant No.2, has already specifically contended that defendants have illegally encroached on the subject land of canal.

3.4 She has suggested the following substantial questions of law for determination of this Court in this appeal :

(i) Whether the suit filed against the private person as well as the Government authority without issuing the notice under Section 80 of the Code of Civil Procedure, 1908 would dehors the maintainability of the suit against the private person ?

(ii) Whether the suit, prayed for the directions against or for the public officer, statutorily requires the impleadment of the concerned Gove