At, Supreme Court of India
By, THE HONOURABLE MR. JUSTICE N.V. RAMANA & THE HONOURABLE MR. JUSTICE AMITAVA ROY
For the Appellant: R. Nedumaran, Advocate. For the Respondents: Balaji Srinivasan, Pratiksh Mishra, Abhishek Bharti, Vaishnavi Subrahmanyam, Advocates.
This appeal by special leave petition arises out of impugned judgment and order dated 24th June, 2005 passed by the High Court of Judicature at Madras in Second Appeal No. 140 of 1994 whereby the Division Bench of the High Court set aside the judgment and decree passed by the First Appellate Court and restored the judgment passed by the trial Court.
2. The brief facts of the case are that the appellant's father Palaniswami Gounde
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and his brother Kasianna Gounder were commonly enjoying an extent of 1.50 acres of land till 5-6-1951 when they got a registered partition deed dividing the schedule plot into two parts after drawing roads on the North-South and East-West sides with understanding to use roads commonly. "A" part of the land was allotted to Kasianna Gounder consisting of 63 cents in three places i.e. two pieces of 18 cents each on the North side and one piece of 27 cents on the South side and the "B" part of the land was allotted to the father of appellant. It is the case of appellant that the deceased Kasianna Gounder during his life time had sold away the two Northern side pieces of 18 cents each and a part of Southern side piece of 27 cents and the remaining part in Southern side piece has been sold by the respondents by themselves that the entire "A" part has become alienated, and thereafter the appellant and the alienates have been using the roads commonly.3. A Suit for grant of permanent injunction was initiated by the appellant and his father (Stakeholders of "B" part) against the respondents-defendants as they claimed right on the common pathway and tried to construct a shed over the pathway. Learned trial Court dismissed the Suit on the ground of non joining of necessary parties by the plaintiffs. However, the first appellate Court set aside the view taken by the trial Court and decreed the matter in favour of appellant and granted injunction restraining the defendants-respondents from taking up any construction work on the suit property. Aggrieved thereby, the respondents-defendants filed second appeal before the High Court which has been allowed and the judgment of learned trial Court has been restored. Dissatisfied with the reversal of judgment by the High Court, the original plaintiff is in appeal before us.4. We have heard learned counsel for the parties and carefully gone through the material on record. Admittedly, one Chinnappa Gounder was the original owner of the disputed property (pathway) which has been divided between Kasianna Gounder (Schedule "A") and Palanisamy Gounder (Schedule "B"), father of present appellant by a partition deed dated 5.6.1951. Undisputedly there were passages earmarked for the common use of both "A" and "B" group parties and hence roads were continued be in existence at the time of partition and thereafter as well. It is also on record that after the partition, first plaintiff (father of appellant herein) sold a plot of 28 cents and the father of defendants (Kasianna Gounder) sold three plots of different dimensions and later on, the remaining area out of "A" schedule was disposed of by the defendants. Thus, in addition to the plaintiffs and defendants, there are certain other parties who are concerned with the result of the Suit.5. At the outset, the material on record transpires that the Suit filed by the appellant was not based on true state of affairs and the plan appended to the plaint was incorrect as the markings on the plan showing as `roads' have not been properly described in respect of the right, title and interest of the parties concerned. The trial Court as well as the High Court have clearly come to the conclusion that the area in which the defendants were allegedly carrying on construction does not in fact fall within the area of plaintiffs. Apart from that, it is clear that the disputed passage has also been used by the parties who purchased the plots from plaintiff-defendant groups and therefore they are necessary parties to the Suit and it is obligatory on the part of plaintiffs to make them parties to the Suit. Non-joinder of necessary parties to the Suit is fatal. Merely for this reason alone, the Suit could have been dismissed and the trial Court has done no wrong in doing so.6. For the reasons stated above, particularly in view of non-joining of other affected parties to the cause, we find no infirmity in the impugned order passed by the High Court. Accordingly, the appeal is dismissed with no order as to costs.