Ramamoorthy and Others vs Theradi Karuppasamy Vazhipadum Hindu Nadar Tharangan Vagai Thayathigal Sangam

R. Banumathi, J.—This Revision is directed against the order in I.A. No. 215/2005 in O.S. No. 7/2005 dated 30.11.2005 allowing the

Petition under Order 1, Rule 10(2) CPC thereby impleading Theradi Karuppasamy Vazhipadum Hindu Nadar Tharagan Vagai Thayathigal

Sangam as third defendant in the suit. Plaintiffs are the Revision Petitioners.

Suit O.S. No. 7/2005 was filed by the Revision Petitioners/Plaintiffs claiming title to the suit land in T.S. No. 28, Ward F, Block 2, measuring an

extent of 0.1700.0 square metres. There is a Vinayagar Idol and a Well in the suit land which is classified as ""Nandhavanam poramboke"". The

general public especially Tharagan Sect of people are said to have conducting special festival in the temple every year.

In the year 1992, first respondent filed a Petition [dated 13.2.1992] before Tahsildar, Sattur claiming patta to the suit land. Revision Petitioners''

father Soundarapandian was the counter petitioner. Petition was disposed of by the Tahsildar, Sattur in Proceedings Mu.Mu.(B2) 8085/93 dated

31.12.1994 directing both parties to move the civil court for declaration of title of the land.

Action was initiated under the Tamil Nadu Land Encroachment Act for eviction of the encroachment made in the said land by the Revision

Petitioners in Office File No. A2/6759/98 which was also challenged by filing W.P. No. 13306/90. The High Court in its order dated 5.8.1999

disposed of the Writ Petition directing Vasantha Devi [7th Plaintiff] to prefer an appeal before the District Collector, Virudhunagar.

Thereafter, Plaintiffs have filed O.S. No. 129/2000 in Sub-Court, Sivakasi claiming that the suit property is their ancestral property and that the

predecessor in title of Plaintiffs viz., Kasi Nadar, Sankaralinga Nadar and Arunachala Nadar have partitioned the properties amongst themselves

and that the Plaintiffs'' predecessor in title were entitled to the property and Soundarapandian Nadar purchased part of the schedule property

during 1993 and the remaining portion of schedule property on 10.6.1997. Thus Plaintiffs claim title to the suit property through their ancestors.

Suit O.S. No. 129/2000 was filed against the Government and against (i) Sivasankara Nadar; (ii) Meenarajan; (iii) Dr. Napoleon; (iv)

Palanichamy. The suit was filed for declaration of Plaintiffs'' title to the suit property and for permanent injunction. Defendants 3 to 6 hotly

contested the suit in O.S. No. 129/2000 and 3rd Defendant filed the written statement contending that the property situated in S.No. 284 of

Sithoorajapuram village (presently Sivakasi town) had been classified as Nandhavanam poramboke, since the suit property belongs to Hindu

Nadar Community and recognised as Tharagan Sect who had been offering their worships to Lord Vinayaga situate over a part of the suit

property. According to the defendants thereon abutting the above temple, there is a garden in which a Well had been dug by the said Tharagan

Sect of people and from out of the Well situated over the suit property, a flower garden was created by Tharagan Sect of people and that

Tharagan Sect of people offering their worship to Lord Vinayaga, used to assemble over the property and thus the property had been enjoyed in

common by all the people of Tharagan Sect and Tharagan Sect of people has been offering contributions in various forms to improve the

Nandhavanam.

Suit O.S. No. 129/2000 was not pursued. Revision Petitioners/Plaintiffs have filed O.S. No. 7/2005 seeking for declaration of their title to the

suit property and for permanent injunction. But the Revision Petitioners/Plaintiffs have filed O.S. No. 7/2005 only against the Government and

omitted the other defendants in the earlier suit viz., O.S. No. 129/2000 who are Tharagan Sect of people. Revision Petitioners/Plaintiffs have not

chosen to implead Tharagan Sect of people who claimed right in the suit property.

Referring to the earlier suit filed by the Plaintiffs, Government has filed written statement contending that suit O.S. No. 7/2005 is continuation of

earlier suit O.S. No. 129/2000 and that defendants in the earlier suit are necessary and proper parties and that their non-impleadment is fatal to the

case.

Theradi Karuppasamy Vazhipadum Hindu Nadar Tharagan Vagai Thayathigal Sangam, represented by its Secretary Dr.Nepolean filed I.A.

No. 215/2005 seeking to implead Tharagan Sect of people as a necessary party. Reiterating the earlier stand in O.S. No. 129/2000 and claiming

that the suit property in T.S. No. 28 has been classified as Nandhavanam poramboke in the revenue records which belongs to Hindu Nadar

community and recognised as Tharagan Sect, the first respondent Sangam prayed to implead itself as defendant.

Learned Subordinate Judge, Sivakasi allowed the application observing that impleadment is justified on the ground that lis could be finally

adjudicated only by impleading Tharagan Sect of people.

Challenging the impugned order, learned Counsel for the Revision Petitioners submitted that if the third party is impleaded it would change the

character and nature of the suit. It was further argued that Plaintiff is the dominus litus and while so, Court cannot direct addition of parties against

the wishes of the Plaintiff who cannot be compelled to proceed against the person against whom Plaintiff do not claim any relief. In support of his

contention, learned Counsel for the Revision Petitioners placed reliance upon 1997 (2) LW 691 R.R. Square, by Partner Ramachand Rao v. Mrs.

Shobalatha Debi.

Countering the arguments, learned Counsel for the first respondent submitted that the present suit is only continuation of the earlier suit O.S.

No. 129/2000. Drawing Court''s attention to the written statement filed by the 3rd Defendant-Sivasankara Nadar in the earlier suit [O.S. No.

129/2000], learned Counsel for the first respondent submitted that since Tharagan Sect of people having entitlement in the suit property, Tharagan

Sect of people are necessary party in the suit. Drawing Court''s attention to the written statement filed by the Government, it was submitted that

even the Government has filed written statement contending that the suit property has been classified as Nandhavanam Poramboke and that

Tharagan Sect of people are necessary party. It was further argued that if any relief to be granted, it would prejudicially affect the interest of the

impleaded party.

Formulating the tests in a case of addition of parties in AIR 1988 Madras 287 Firm of Mahadeva Rice and Oil Mills and Ors. v. Chennimalai

Goundar, it was laid down as under:

(1) if for the adjudication of the ""real controversy"" between he parties on record, the presence of a third party is necessary, then he can be

impleaded; (2) It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising

thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject matter which could still have been decided

in the pending suit itself; (3) The proposed party has a defined, subsisting, direct and substantive interest in the litigation, which interest is either

legal or equitable and which right is cognisable in law; (4) Meticulous care should be taken to avoid the adding of a party if it is intended merely as

a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by

the court in the pending litigation; and (5) It should always be remembered that considerable prejudice would be caused to the opposite party

when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the

suit. C.M.V. Krishnamachari Vs. M.D. Dhanalakshmi Ammal and Others, and Razia Begum Vs. Sahebzadi Anwar Begum and Others, and In Re:

Kelloth Ibrahim Haji and Others, and Nrisingh Prosad Paul Vs. Steel Products Ltd., .

A proper party is one without whose presence the question in the suit cannot be completely and effectually adjudicated upon. If he is neither a

necessary party nor a proper party, the Court has no jurisdiction to add him as a party.

In the revenue records, suit land in T.S. No. 28, Ward F, Block 2 is registered as Government Nandhavanam poramboke in Town Survey

Register of Sivakasi Town. In the written statement filed by the Government, it is averred that the suit property has been registered as

Nandhavanam poramboke and that Plaintiffs cannot claim any manner of personal enjoyment over the suit property.

According to the first respondent, T.S. No. 28 has been classified as ''Nandhavanam poramboke'' and Tharagan Sect of people had been

offering their worship to Lord Vinayaga situate over the part of the property and abutting the said temple a garden has been raised by Tharagan

Sect of people and Well had been dug. Further case of the first respondent is that Tharagan Sect of people offering their worship to Lord

Vinayaga, used to assemble over the property and property had been enjoyed in common by all the people of Tharagan Sect of people.

Dr. Napoleon who is presently Secretary of Tharagan Vagai Thayathigal Sangam was earlier shown as 5th defendant in O.S. No. 129/2000.

As pointed out earlier, the suit O.S. No. 129/2000 was hotly contested by the defendants 3 to 6. But the earlier suit O.S. No. 129/2000 was not

pursued and was withdrawn with liberty to file a fresh suit. As rightly submitted by the learned Counsel for the first respondent that the present suit

O.S. No. 7/2005 is nothing but a continuation of an earlier suit.

As pointed out earlier, in the Proceedings of Tahsildar, Sattur in Mu.Mu.(B2) 8085/93 dated 31.12.94, Tahsildar observed that the property

being situated in the heart of Sivakasi town and being valuable property, directed the parties to approach the Civil Court to establish their right.

Thereafter, Revision Petitioners unsuccessfully parted out the litigation before various forums. Only thereafter, Plaintiffs have filed suit O.S. No.

129/2000 both against the Government and against Sivasankara Nadar and others. While so, Revision Petitioners were not justified in filing the suit

only against the Government omitting to implead the other defendants representing Tharagan Sect of people.

Placing reliance upon 1992 (2) LW 720 Ramesh Hiranand Kundanmal v. The Municipal Corporation of Greater Bombay and Ors. it was

argued that Court cannot direct addition of parties against the wishes of Plaintiff who cannot be compelled to proceed against whom he does not

claim any relief. Placing reliance of 2005 (4) LW 309 P. Ashoka v. Nehru Edwin Raj and Ors. it was further argued that Plaintiff is dominus litus

and he cannot be compelled to find out the litigation against whom he does not choose to bring the lis.

Ofcourse, Plaintiff is the dominus litus and is not bound to sue every possible adverse claimant in the same suit. In 1992 (2) LW 720 Ramesh

Hiranand Kundanmal v. The Municipal Corporation of Greater Bombay and Ors. the Supreme Court held as follows:

Plaintiff is no doubt dominus litus and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those

persons as defendants against whom he wishes to proceed, though under Order 1, Rule 3, to a void multiplicity of suit and needless expenses all

persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit, direct

addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. Rule 10

specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may

be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit.

Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the

plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10

which provides only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A

proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the

question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion

which has to be exercised in view of all the facts and circumstances of a particular case.

The true construction of rule is the meaning of words ""whose presence before the court may be necessary in order to enable the court

effectually and completely to adjudicate upon and settle all the questions involved in the suit"". Court is empowered to implead a person whose

presence is necessary for proper and complete adjudication. In Ramesh Hiranand Kundanmal''s case cited supra, Supreme Court held as follows:

...If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the

intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.

In the present case, subject matter of dispute between the Revision Petitioners and the first respondent was the subject matter of dispute in the

earlier suit in O.S. No. 129/2000. In Para-12 of the plaint in O.S. No. 7/2005, Plaintiffs averred that ""some third persons who are said to be

worshiping Karuppasamy temple are calling themselves as Karuppasamy Vazhipadum Thayathigal Sangam attempted to make a novel claim for

the first time during the year 1991 as if it has got a right in the suit property and attempted to interfere with the possession and enjoyment of the suit

property by the Plaintiffs"". Like wise, in Para-23 of the Plaint, cause of action for the suit is alleged to be in the year 1991, when some third parties

falsely claim right over the suit property. Having alleged third parties/Karuppasamy Vazhipadum Thayathigal Sangam are claiming right in the

property, evidently, first respondent Sangam has cause of action against the Plaintiffs relating to the suit property.

Having regard to the nature of rival claim by both parties, learned Subordinate Judge has rightly ordered impleading of Theradi Karuppasamy

Vazhipadum Hindu Nadar Tharagan Vagai Thayathigal Sangam. The impugned order does not suffer from any perversity warranting interference.

In the result, the order in I.A. No. 215/2005 in O.S. No. 7/2005 dated 30.11.2005 on the file of Sub-Court, Sivakasi is confirmed and this

Revision is dismissed.

Learned Subordinate Judge, Sivakasi is directed to take up the suit and afford sufficient opportunity to the newly impleaded Defendant to file a

written statement [if not so far filed].

Learned Subordinate Judge, Sivakasi is directed to expedite the trial of the suit.

The views expressed in this order may not be construed as an expression of opinion on the merits of the matter.

Consequently, M.P. No. 1/2006 is closed.