IMPORTANT POINTS
(1) Non-joinder of a necessary party is a ground to dismiss a suit.
(2) Whether a person is a necessary party, is a question of fact depending upon relief claimed in suit – But once it is established that the person is a necessary party to suit, it becomes a question of law and can be raised for first time in appeal.

JUDGMENT

Partha Sarathi Chatterjee, J.—Judgment and decree dated 27th April, 2016 passed by the learned Civil Judge, Senior Division, First Court at Contai, Purba Medinipur, whereby the suit was dismissed, has been impugned in this instant appeal.

2. Capsulated form of the facts leading to filing this appeal is that plaintiff filed one suit for recovery of khas possession after evicting the trespassers as well as for mandatory injunction.

3. Facts projected in the plaint are that one Bhanu Charan Jana happened to be the owner and possessor of the suit property. Mr. Jana transferred the suit property to the plaintiff by virtue of a registered deed of sale being no. 6589 which was executed and registered on 14.9.2010 & 15.9.2010 respectively. The suit property was recorded in his name in L.R.R-O-R under khatian no.1251 and the L.R.R-O-R was finally published. It was claimed that the defendants, who belonged to a political party, illegally and forcibly trespassed into the suit property and illegally constructed one room having asbestos shed thereon on 10.4.2014 and thereby dispossessed the plaintiff from that property and now, they are denying the title of the plaintiff over the suit property and hence, this suit.

4. Record speaks that the defendants contested the suit by filing written statement denying all the allegations contained in the plaint. It was specifically contended that the suit is barred by mis-joinder of cause of action and the suit is also barred by the provisions of Order 1 Rule 8 of the Code of Civil Procedure (hereinafter referred to as CPC) since all the members of All India Trinamul Congress, Sahapur East Branch had not been made parties. It was also contended that Mr. Jana, the erstwhile owner, was unmarried and he was an active member of All India Trinamul Congress (in short, AITC) and since the date of formation of that party, i.e., from 01.1.1998, he was living in a room having a tin shed standing on the southern part of the suit property and all the political activities of that party were carried out from that room and hence, that property was not personal property of Mr. Jana but was used as the property of the party office of AITC. It was also pleaded that said Mr. Jana was bed-ridden for a pretty long time and he had no sound and disposing state of mind and the deed which the plaintiff had claimed to have been executed and registered in his favour is a forged and manufactured document. It was also alleged that on 18.02.2010, by virtue of one registered deed being no.1199, plaintiff purchased .01 decimal from the northern part of suit property and the plaintiff sold out that portion of the suit property to one Premanand Shaw on 5.8.2010 and property which has been recorded under khatian no.1251, is the subject matter of the deed being no. 1199 executed and registered on 14.09.2014. It was also stated that in connection with an application under Section 144(2) the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) filed by the plaintiff on 8.3.2014, Office-in-Charge of the concerned P.S. and concerned R.I. have filed reports wherein it was stated that plaintiff was not in possession of the suit property and lastly, prayer was made for dismissal of the suit.

5. Upon pleadings of the respective parties, the learned Court below framed as many as nine issues which are as follows:—

1. Whether the suit is maintainable in its present from and prayer?

2. Whether the plaintiff has any cause of action to institute this suit?

3. Whether the suit is barred by the principles of estoppel, waiver and acquiescence?

4. Whether the suit is barred by limitation?

5. Whether the suit is barred by S. 34 of the Specific Relief Act?

6. Whether the plaintiff has right, title and interest in the suit property?

7. Whether the defendants are trespasser in the suit property?

8. Whether the plaintiff is entitled to get the decree as prayed for?

9. To what other relief, if any, is the plaintiff entitled to?

6. Re