Possession is protected by law, and a person in possession is entitled to protect it against trespass, even without title.

Mohamed Shafi, J.

The plaintiff in O.S. No. 284/82 on the file of the Munsiffs Court, Kasaragod whose prayer for declaration of title and permanent prohibitory injunction in respect of plaint A schedule properties is rejected by the trial Court as well as the first appellate Court, is the appellant herein. Though the plaint A schedule properties consisted of four items, since in the written statement the respondent-defendant stated that he has no dispute with regard to items 2 to 4 of the plaint A schedule properties and confined his contention with regard to item No.1 of an extent of 42 cents comprised in R.S. No. 201/3 of Enmakaje Village, the parties are in issue only with regard to that item one of the plaint schedule properties. Though the appellant contended that the plaint A schedule properties form part and parcel of R.S. No. 201/2 which was obtained by him on dark hast from the Government, subsequently it is admitted by both sides that the disputed property is Government land. That item alone is the subject matter in this appeal.

2. According to the appellant the properties in the possession of the appellant and the respondent are separated by a compound wall and the properties in the possession of the respondent in the possession of the respondent are bounded by a very old compound wall adjoining the disputed property. According to him, he has been in possession of item No.1 of plaint A schedule properties along with other properties and has effected valuable improvements in that property also.

3. The trial court found that the appellant was not in possession of item No.1 of the plaint schedule properties and accordingly dismissed the suit by judgment and decree dated 29.8.1986. Though the trial court negatived the contention of the respondent that the suit is bad for non joinder of the State, in appeal A.S. No. 135/86 preferred by the appellant against the judgment and decree of the trial court, the lower appellate court reversed the finding of the trial court that the suit is not bad for non joinder of the State and held that the suit is bad for non joinder of the State and dismissed the suit, even though, it was found that the appellant was in possession of item No.1 of plaint A schedule properties on the date of suit.

4. The counsel for the appellant vehemently argued that after finding that the appellant is in possession of item No.1 of A schedule properties, the lower appellate court should have protected the possession of the appellant against the respondent from trespass, even if the appellant is not entitled to any remedy against the State and that the dismissal of the suit for non joinder of necessary parties is absolutely illegal.

5. O.1 R. 9 of CPC deals with misjoinder and non joinder of parties, which reads as follows: "Misjoinder and non-joinder - No suit shall be defeated by reason of the misjoinder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non joinder of a necessary party".

In this case, though the disputed property belongs to the Government, absolutely no relief is claimed by the appellant against the Government. The appellant has only claimed injunction against the respondent in respect of trespass and obstruction of his peaceful enjoyment of the plaint A schedule properties.

6. The lower appellate court held that the appellant cannot claim his title on the basis of adverse possession and limitation and that plea can only be raised against the State since the property belongs to the State and therefore, the suit is liable to be dismissed for non joinder of the State.

7. It is pertinent to note that the entire pleadings and evidence adduced by the appellant in this case established that his contention regarding adverse possession and limitation is against the respondent and not against the State, though the property be