The main question in this Second Appeal is whether the Government is a necessary party to the suit.

The relevant facts are: The plaintiff is the owner of the property described in the plaint schedule and the house bearing door No. 236 in the 15th ward of the Rajahmundry Municipality. His father and uncle purchased the same under a sale deed,dated 30th June, 1901, from one Kotta Manikyam. The defendant, the Municipal Council of Rajahmundry, through its Commissioner, issued a notice to his Plaintiff directing him to remove the pials, stone pavement and the tiled eaves of his house on the ground that they were encroachments on the public street." To avoid the execution of the threatened action, the plaintiff filed O.S. No 40 of 1040 on the file of the Court of the District Munsif, Rajahmundry, against the Municipality for a declaration of his title and for a permanent injunction restraining the Municipality from interfering with his possession.

The defendant, inter alia, contended that Government was a necessary party to the suit and also the suit was barred by reason of section 14 of the Madras Survey and Boundaries Act.

The learned District Munsif accepted the contentions of the Municipality and dismissed the suit. On appeal, the learned Subordinate Judge rejected the pleas raised by the defendant and decreed the suit. The appellate Court found that the plaintiff was the owner and that there was no encroachment.

The first question is whether Government is a necessary party to the suit. A number of cases have been cited at the Bar in support of the respective contentions. Untrammelled by the said decisions, let me consider the legal position. There is an essential d1stinction between a necessary party and a proper party to a suit. Necessary parties are parties necessary to the constitution of the suit and without whom no decree at all can be passed. Proper parties are those whose presence enables the Court to adjudicate more effectually and completely the questions raised in the suit. See Civil Procedure Code by D. F. Mulla, 12th edition, page 520. Can it be said that Government is a necessary party to the suit in the aforesaid sense ? The plaintiff, claiming to be the owner filed the suit against the Municipality, who threatened to infringe his right. He had no grievance against any other person other than the defendant for no one interfered with his right. It is not the duty of the owner of a property to make a roaming search of all possible claimants and make them parties. His title against the defendant would be finally decided in the suit, and, on that basis, he would get an effective relief against him. If the defendant intended to raise a plea of jus tertii, it is always open to him to apply for making the third party a party to the suit. The plaintiff is not asking for any relief against the Government.

In Appala Narasamma v. Commissioner, Municipal Council, Vizagapatam1, a Division Bench of the Madras High Court, cons1sting of Leach, C.J., and Clark, J., lald down the position in clear terms as follows:

“The plaintiff had built a house on his own land and the Municipality was threatening to demolish it, if not removed because it imagined that it encroached on a public street. As there was no encroachment, the Municipality had no right to issue the notice and still less right to take steps against the plaintiff. The Government was not concerned with the issue of the notice or the threat which the Municipality made. The responsibility rested entirely with the Municipality. The granting of the relief, which the plaintiff asked for in the plaint, would affect no right vested in the Government. Therefore, the Government was not a necessary party to the suit.”

I respectfully agree with the observations.

The judgment of Venkataramana Rao, J., in Krishnaswami Naidu v. Municipal Council, Bellary2, does not really touch the question now raised. There, the plaintiff claimed a declaration that he was the owner of a vacant site