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2001 DIGILAW 111 (KER)

K. L. D. & M. M. Board Ltd. v. Achuthan

2001-02-15

D.SREEDEVI

body2001
Judgment :- D. Sreedevi, J. The appellant is the Addl. 5th judgment in O.S. No. 564 of 1986 of the Munsiff s Court, Idukki, and the appellant in A.S. No. 29 of 1995 of the District Court, Thodupuzha. The 1st respondent herein filed the above suit for a decree of permanent injunction restraining the appellant from trespassing into the A and B Schedule properties. The plaint schedule property is having a extent of 3 acres 96 cents comprised in Sy. No. 185/1 of Vagamon village. He claims title and possession over the property under the patta issued in his favour in the year 1980. The defendants have got extensive land on the western side of his property. The plaint B schedule is the western 46 cents of A schedule property. The suit was later amended to one for recovery of possession of B Schedule property after declaring the plaintiff's title over the same and to restrain the defendants from trespassing into the plaint A schedule property. 2. The defendants filed written statement contending that the K.L.D. & M.M. Board is a Government undertaking, that the plaint B schedule property belonged to the Board, that the description of the plaint property is not correct, that the plaintiff has no property on the western side of the Kochukaruntharuvi river, which is the natural boundary on the eastern side of the properties of the Board, that the suit is bad for non joinder of parties, that being a Government Corporation, the plaintiff ought to have impleaded the Managing Director or the Secretary or the Directors, and that they have not trespassed upon the B schedule property and taken forcible possession of the same. 3. The trial court after taking evidence decreed the suit in favour of the plaintiff. Aggrieved by the said decree and judgment the defendants filed the appeal. The learned District Judge dismissed the appeal confirming the decree and judgment of the trial court. Aggrieved by the said decree and judgment this second appeal is filed. 4. The question of law for the purpose of this appeal are the following: 1. Whether a suit against a Corporation is maintainable unless the Secretary, any Director or Principal Officer of the Corporation is made a party in the suit as prescribed in O. XXIX R.1 of the Code of Civil Procedure? 2. 4. The question of law for the purpose of this appeal are the following: 1. Whether a suit against a Corporation is maintainable unless the Secretary, any Director or Principal Officer of the Corporation is made a party in the suit as prescribed in O. XXIX R.1 of the Code of Civil Procedure? 2. Whether a suit can be decreed in favour of the plaintiff solely relying on a commission report which was seriously opposed. 3. Whether a permanent prohibitory injunction can be issued even when there is a finding that there is discrepancy in the description of boundaries? and 4. Whether a second commission can be issued for the same purpose without rejecting the first commissioner's report?" Point No.1 5. It is contended by the defendants that the suit is not maintainable as the 5th defendant is not properly represented in the suit. Learned counsel for the appellant submitted that O. XXIX R.1 provides that in suits by or against a corporation, any pleading may be signed and verified by the Secretary or by any Director or other principal officer of the Corporation who is able to depose to the facts of the case. Here in this case the plaintiff has impleaded the 5th defendant who is represented by the officer in charge of Peermade Unit of the Board. This Court in Padmanabhan v. Narayanan (1963 (Vol. 1) ILR Kerala 479) held as follows: "It is not essential that the representative of a company should appear on the array of parties to an action concerning the company. A comparison of the provisions of Orders. 29 and 32 of the Civil Procedure Code and of the several illustrative forms of Title of suits in Appendix A to the Code would show that it is enough to name the company itself as a party to the proceeding, without indicating who its physical representative is." A Division Bench of this Court in Kalpaka Shrimp Exports v. Kerala Financial Corporation (1989 (2) KLT 18) held that the expression "Principal Officer" has not been defined in the C.P.C. If the word is to mean the most important officer, then not more than one officer in the Corporation will be able to sign the petition. The written statement filed by the Board has been verified by the principal officer of the unit. That verification is not challenged by the 1st defendant. The written statement filed by the Board has been verified by the principal officer of the unit. That verification is not challenged by the 1st defendant. Moreover, in the written statement it is specifically stated that the officer in charge has been authorised by the Board. Therefore, the argument advanced by the learned counsel for the appellant that the 5th defendant is not properly represented in the suit is not correct. If there is no representation the factum of non joinder will be the result. S.99 of the CPC provides that no decree shall be reversed or substantially varied, nor shall any case be remanded, on account of any misjoinder or non joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. Therefore, on the ground that the 5th defendant was not properly represented or there is non joinder of parties the decree passed by the courts below cannot be set aside. Hence this point is found against the appellant. Point Nos, 2 to 4 6. The learned counsel for the appellant submitted that the court below has issued a second commission without setting aside the first commission report and plan and that procedure, adopted by the trial court is illegal. The plaintiff has produced the patta which goes to show that he has got title over 3 acres 96 cents of land comprised in Sy. No. 185/1. The defendants do not deny the plaintiff's title over the property covered by Ext. XI(f) patta. The B schedule property is the western 46 cents of A schedule property. The defendants' contention is that the plaintiff has no property on the western side of Kochukarunthiravi Vagamon river. The commissioner, who visited the property has filed Ext. Cl report and Ext. Cl(a) sketch. The commissioner has reported that the plaintiff's property is divided into two by a water course running from north to south and portion to the eastern side of the water course is planted with cardamom, plantain, pepper etc. On the southern side of the western plot there was cultivation of cardamom and plantain. Uprooted cardamom plants and cut plantains were lying scattered on the southern part of the western plot. Lemon grass is also cultivated. Just on its northern side there are cardamom plants. On the southern side of the western plot there was cultivation of cardamom and plantain. Uprooted cardamom plants and cut plantains were lying scattered on the southern part of the western plot. Lemon grass is also cultivated. Just on its northern side there are cardamom plants. Three to four year old cardamom plants were seen uprooted. Northern portion is cultivated with lemon grass. Survey stones also were seen uprooted. 200 fencing stumps were also seen scattered there. The defendant has no case that they have effected cultivation in their property. Therefore I can find that the cultivations were effected by the plaintiffs and that the same have been destroyed. Ext. C2(a) plan was prepared by the commissioner with the help of the Taluk Surveyor. The subsequent report and plan after the second inspection has been marked as Exts. C3 and C3(a). The commissioner, who was examined as PW. 2 has deposed that the property has been identified on the basis of the L.A. Sketch. He has started measurement from north western corner of the property where there was a survey stone. But he has stated that he is not sure whether the water stream passing through the property is Kochukarunthiruvi Vagamon river. Regarding the northern and southern boundaries there is no dispute. That description of the property tallies with the description in Ext. XI(f) patta. At the end of the trial another commission was taken out. He filed Ext. C4. He was examined as DW2. According to him, the water stream in between plaint A and B schedule properties is only a 'thodu' having 3 feet in width. He would state that the river is further west from this thodu and in between the thodu and the river there is about 4 acres of property. The plaintiff has alleged that there were survey stones and kayyala on the western side of his property. PW.2, the second commissioner has seen a sy. stone on the north-western corner. PW.1, the first commissioner has reported that the sy. stones were uprooted and its pits were available on the spot. PW.3 has spoken to his case. 7. The plaintiff has filed the suit for injunction alleging attempt of trespass on the B schedule property and later amended the plaint for recovery of possession alleging trespass. Regarding a portion of the property on the eastern side of the water course "there is no dispute. PW.3 has spoken to his case. 7. The plaintiff has filed the suit for injunction alleging attempt of trespass on the B schedule property and later amended the plaint for recovery of possession alleging trespass. Regarding a portion of the property on the eastern side of the water course "there is no dispute. The commissioner in his report stated that damages have been caused to the improvements and the lemon-grass extracting unit in the disputed property. He could see so many pits in the disputed property and the commissioner could infer that they were the pits caused by uprooting the cardamom plants. He has also seen damages to the plantains. From the commission report the courts below had come to the conclusion that the plaintiff was in possession and enjoyment of B Schedule property on the date of institution of the suit. From the evidence of DW2 and on going through Ext. C4 it is clear that there is a river some distance away from the plaint schedule property. PW3 deposed that there was a resurvey of lands and three survey stones were planted on the western boundary. The second commissioner could see a survey stone on the north western corner. He could also see a kayyala on the western side of the property. It is true that there is discrepancy in the western boundary of the property mentioned in the patta. The plaintiff has shown that he has cultivated the property with cardamom, plantain etc. in his property, that the cultivation on the B Schedule has been destroyed, that there was a boundary wall on the western side and the same has been destroyed and that the river mentioned on the western boundary of the property lies further west of the B plot. Ext. C4 commission report is not seriously disputed by the defendant. Therefore, Ext. C4 report was accepted by the court below. The plaintiff also proved that B schedule property is a portion of A schedule, that the same was bounded by kayyala wall and that the property was resurveyed and planted survey stones. 8. It is submitted that the issue of 2nd commission without setting aside the 1st commission report is not legal. The 2nd commission was issued at the fag end of the trial to ascertain the location of Kochukarunthiruvi Vagamon river and the distance between B schedule and the river. 8. It is submitted that the issue of 2nd commission without setting aside the 1st commission report is not legal. The 2nd commission was issued at the fag end of the trial to ascertain the location of Kochukarunthiruvi Vagamon river and the distance between B schedule and the river. The court found that such a report was necessary for the disposal of the case. For the ends of justice, the court can issue a 2nd commission to collect more details for which it is not necessary to set aside the previous commission report. Therefore, the argument that issue of 2nd commission without setting aside the 1st commission report is illegal, has no merit at all. 9. On a close scrutiny of all the oral and documentary evidence the court below dismissed the appeal. I do not find any reason to interfere with the decree and judgment of the court below. In the result, the second appeal is dismissed.