The central legal point established in the judgment is the necessity of making the Municipality a necessary party to the suit and the misinterpretation of the law by the lower appellate Court.

Pakenham Walsh, J.

1. The plaintiff brought the suit to eject the defendant from a site and to remove a pial erected by him thereon. The plea of the defendant was that the land belonged to the Municipal Council, that he put up a pial with its permission and that the Municipal Council was a necessary party to the suit. This latter point was raised as issue No. 3 and the objection was repeated in appeal. With regard to issue 3 the trial Court said:

According to the plaint allegations, plaintiff exclusively claimed the suit lane as his property. So it is unnecessary for him to implead third party on the contentions raised by the defendant.

2. In respect of this its judgment reads throughout as if it were a decision between the plaintiff and the Municipality. The District Munsif says in para. 6:

I am constrained in this state of evidence as observed (sic) that plaintiff had made out a better title to the suit lane than the Municipality, and later on in the same paragraph As already observed there is some dispute between plaintiff and Bezwada Municipality about the ownership of this lane. As the available evidence is not before the Court, I am constrained to find in this state of evidence that plaintiff had made out a better title than the Municipality.

3. In dealing with this issue the lower appellate Court says:

As for the contention of the defendant that it is part of the Municipal lane, there is no proof of it.

4. If by proof the learned Subordinate Judge means evidence, he is clearly in error. There is the evidence of the receipts granted to the defendant by the Municipality as well as the direct evidence of D.W. 4, the Municipal Town Surveyor, who swears it is a public lane. An attempt was made in arguing the case before me to state that what the defendant got the license receipts for was not the present pial but some other in a different position. That cannot be maintained, for it is seen from the plaint that the pial in its present position has been there for four years which is within the period covered by two receipts. Both the Courts decreed the suit in plaintiffs favour and the main contention in this second appeal is that the Municipality was a necessary party.

5. The plaintiff, is the owner of house sites A and A-l and the defendant of house site B. Plot C is the one in dispute. The written statement has not been printed. If the defendants written statement as regards the origin of the suit is as extracted in paragraph 3 of the judgment of the District Munsif, it is very badly expressed. It is there stated as follows:

The defendant contends that the alleged land C is not the exclusive one of the plaintiff. The plaintiff and his predecessor-in-title had no interest in that site. The sites A and B originally belonged to one joint family. When they were divided they kept this suit land C as their joint lane. Plaintiff purchased A and A-1 marked land only eight months back, while defendant purchased site marked B twenty years back. The Municipality acquired this suit land long ago.

6. I think that the defendant clearly means that A, B and C originally belonged to the joint family. If that were not so, there was no meaning in saying that when they divided they kept the suit land C as joint lane. However, the matter is not of very much importance because the defendants clear case was that the Municipality acquired the suit land long ago and the question is whether the Municipality is not a necessary party to the suit in the circumstances.

7. For the appellant is quoted Umed Mal v. Chand Mal (1926) L.R. 53 IndAp 271 : I.L.R. 54 Cal. 338 : 52 M.L.J. 368 a Privy Council case. In that case where a mortgagee as purchaser of the mortgaged properties in Court-auction in execution of his mortgage decree sued a third party, not being the mortgagor, in ejectment of one of the items alleged to have been included in his mortgage and purchased by him in execution of his mortgage decree, without making the mortgagor a party to the suit and