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1999 Supreme(Mad) 132
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. SAMPATH
S. Ramaswamy and four others
Versus
The State of Tamil Nadu rep. by its Collector, Kanyakumari District at Nagerkoil and another
C.R.P.No. 462 of 1998 and C.M.P.No. 2455 of 1998
Decided On : 08-02-1999
Mr.V. Lakshminarayanan Advocate for Petitioners. Ms. Selvi George for Mr. Titus Jesudoss Additional Government Pleader (Forest Cases) Advocate for Respondent No. 2.
THE PLAINTIFFS ARE THE DOMINUS LITUS AND HAVE THE RIGHT TO CHOOSE THE PARTY AGAINST WHOM THEY WANT RELIEF.
Headnote:
IMPLEADING PARTY - ORDER 1 RULE 10 CPC - NECESSARY PARTY - [ORDER 1 RULE 10(2) CPC] - THE COURT HELD THAT THE DISTRICT FOREST OFFICER WAS NOT A NECESSARY PARTY TO THE SUIT AND THAT THE PLAINTIFFS WERE ENTITLED TO CHOOSE THE PARTY AGAINST WHOM THEY WANTED RELIEF.
Fact of the Case:
THE PLAINTIFFS FILED A SUIT FOR A DECLARATION AND RECOVERY OF POSSESSION OF LAND. THE FIRST RESPONDENT STATE FILED AN APPLICATION TO IMPLEAD THE SECOND RESPONDENT, THE DISTRICT FOREST OFFICER, AS A PARTY TO THE PROCEEDINGS. THE PLAINTIFFS RESISTED THE APPLICATION, CONTENDING THAT THE DISTRICT FOREST OFFICER WAS NOT A NECESSARY PARTY.
Finding of the Court:
THE COURT HELD THAT THE DISTRICT FOREST OFFICER WAS NOT A NECESSARY PARTY TO THE SUIT AND THAT THE PLAINTIFFS WERE ENTITLED TO CHOOSE THE PARTY AGAINST WHOM THEY WANTED RELIEF. THE COURT FURTHER HELD THAT THE PRINCIPLE OF DOMINUS LITUS SHOULD NOT BE OVERSTRETCHED AND THAT A PARTY COULD ONLY BE IMPLEADED IF THEY WERE A NECESSARY PARTY.
Issues: WHETHER THE DISTRICT FOREST OFFICER WAS A NECESSARY PARTY TO THE SUIT.
Ratio Decidendi: THE COURT RELIED ON THE FOLLOWING PRINCIPLES: * THE PLAINTIFFS ARE THE DOMINUS LITUS AND HAVE THE RIGHT TO CHOOSE THE PARTY AGAINST WHOM THEY WANT RELIEF. * THE PRINCIPLE OF DOMINUS LITUS SHOULD NOT BE OVERSTRETCHED. * A PARTY CAN ONLY BE IMPLEADED IF THEY ARE A NECESSARY PARTY.
Final Decision: THE COURT SET ASIDE THE ORDER OF THE LOWER COURT AND DISMISSED THE APPLICATION TO IMPLEAD THE DISTRICT FOREST OFFICER AS A PARTY TO THE SUIT.
.1. The plaintiffs in O.S.No. 8 of 1993 on the file of the Additional Sub Court, Nagercoil, are the revision petitioners. The first respondent filed I.A.No. 199 of 97 in the suit under Order 1, Rule 10 of the Code of Civil Procedure for impleading the second respondent as a party to the proceedings. The learned First Additional Subordinate Judge by his order dated 12. 1997 has allowed the application and as against that order the present civil revision petition has been filed.
2. The suit has been filed for a declaration and recovery of possession of an approximate extent of 60 acres minus the area covered by R.S.No. 449/1 having an extent of 10 acres 51 cents in the land in R.S.Nos. 449/1, 2 and 3 surrounding properties coming within the stated boundaries in Arumanalloor Village. Thovalai Taluk in Kanyakuman District and for a permanent injunction restraining the first respondent State from interfering with the possession and enjoyment of the plaintiff over the portion of the schedule property excluding R.S.No. 449/1 by itself or through its Officers, servants and men. (Itallics supplied).
.3. The first respondent alone was impleaded as the defendant. The affidavit in support of the application for impleading has been sworn to by the District Collector of Kanyakumari District. The allegations found in the affidavit are as under: The petitioner/plaintiffs are entitled only to 10 acres and 51 cents in the Schedule property and to the rest of the portion they have no right. The plaint schedule property is surrounded on all the sides by Reserve Forest land. Regarding the schedule property the present first plaintiff and his brothers filed a petition before the Assistant Settlement Officer, Nagercoil, making the Tahsildar, Thovalai, the District Forest Officer and the Forest Range Officer, Azhagiapandipuram, as the respondents. The claim was rejected by the Assistant Settlement Officer. A revision to the director of Survey and Settlement was dismissed. Further revision was rejected by the Special Commissioner and Commission of Land Administration, Madras. Throughout the District Forest Officer was a party. The first plaintiff and his brothers filed writ petition before the High Court in W.P.No. 2791 of 1984 challenging the orders passed by the authorities. The District Forest Officer was the fourth respondent. The writ petition was disposed of on 110. 1992 with a direction to the writ petitioners to invoke the remedy before the civil court after issuing necessary notice to the Government. The plaintiffs issue a suit notice on 111. 1992 to the District Collector, Kanyakumari District. Since the property was forest land the then District Forest Officer sent a reply on 3. 1993. The District Forest Officer was in the party array in the earlier proceedings. In the circumstances, the District Forest Officer was a necessary party since he was in the party array in the earlier proceedings regarding the schedule property and also because the property came within the reserve forest area in which the District Forest Officer administered. The District Forest Officer ought to have been joined as defendant whose presence before the court is necessary in order to enable the court effectively and completely to adjudicate upon all the questions involved.
4. The revision petitioners resisted the application contending inter alia that they are entitled to the entire property that falls within the four boundaries set out in the plaint, that the allegation that they are entitled to only 10.51 acres is not correct, that except for 10.51 acres the rest of the extent is in Reserve Forest land is also not correct, that within the four boundaries there is no land reserved as Reserve Forest and that the District Forest Officer is not a necessary party to the proceedings. The thrust of the counter is in paragraph 6. The District Forest Officer is merely a person holding an office under the State and in law only natural person and those who a
