The appeal by the 1st defendant is not maintainable without the State's appeal, which admitted the plaintiffs' title and possession.

J U D G M E N T

The plaintiff in O.S No.37/1995 on the files of the Munsiff Court, Punalur is the appellant herein. The suit was filed by the plaintiff for declaration of title, possession over the plaint schedule property, fixation of the boundary as per the revenue records and an injunction directing the 1^st defendant to issue the gate pass for the transport of the latex, scrap and other rubber produces. Further relief of recovery of possession was also sought for, directing the 1^st defendant to surrender the extent of portion which they are in possession. Extent of property which was found on local inspection by the Advocate Commissioner. The consequential reliefs were also sought for. The Trial Court initially decreed the suit, against which the 1^st defendant preferred A.S No.66/2009 and by judgment dated 10.08.2016, the suit was remanded to implead the State of Kerala as an additional defendant and accordingly the suit was amended and the 2^nd defendant was impleaded. By judgment and decree dated 28.01.2019, the suit was decreed, against which the 1^st defendant preferred appeal A.S No.23/2019 before the Sub Court, Punalur, which was allowed on 21.01.2021, against which the present plaintiffs have preferred this appeal.

2. The case has got a chequered history. The plaintiffs claimed possession over the plaint schedule property by virtue of Exts.A1 to A3 documents. The plaintiffs are undertaking rubber cultivation in the plaint schedule property. After tapping of the rubber trees are completed by the plaintiffs, the rubber products are to be transported out of the plaint schedule property. Since the plaintiff had no direct access to the public road except through the road in existence in the 1^st defendant property, the 1^st defendant used to issue passes to the plaintiffs in order to transport the latex, scrap out of the plaint schedule property. However, for no reasons to offer the 1st defendant stopped issuing the passes. There were series of communications between the plaintiff and the 1st defendant in this regard. When the impasse could not be resolved, the suit was filed. The 1^st defendant, who was the sole defendant in the suit initially, contested the suit by stating that the plaintiffs had no right title and interest over the plaint schedule property. It was further contended that the 1^st defendant being a lessee under the State Government, the State of Kerala ought to be the necessary party. It was further contended that in order to seek the relief for fixation of boundary, the nature of fixation of boundaries are not disclosed in the plaint. Other contentions were also raised by the 1^st defendant. On behalf of the plaintiff, Exts.A1 to A27 documents were produced, PW1 to PW4 were examined, on behalf of the 1^st defendant Exts.B1 to B9 documents were produced and DW1 to DW3 were examined. C1 to C4 are the mahazars, plan and report of the Advocate Commissioner. As stated above, initially, the original suit was decreed against, the defendant and thereby the 1^st defendant preferred A.S No.66/2009, which was remanded back. After remand, the plaintiff impleaded the State of Kerala. The District Collector filed a written statement on behalf of the additional 2^nd defendant by admitting the title and possession of the plaintiffs as per the revenue records. Later, on behalf of the 2^nd defendant, the Government Pleader produced a report of the Tahsildar, Pathanapuram, dated 11.01.2019, which was marked as Ext.X1. The Trial Court on appreciation of the material evidence framed issues after remand:-

1. Whether the suit is bad for non joinder of necessary party?

2. Whether the plaint schedule proper