Judgment :- (Prayer: This appeal has been filed against the decree and judgment dated 22.4.1993 passed in O.S.No.33 of 1989 on the file of the Additional District Court, Pondicherry at Karaikal.) This appeal has been preferred against the decree and judgment passed in O.S.No.33 of 1989 on the file of the Additional District Court, Pondicherry at Karaikal. The first defendant is the appellant herein. The suit has been filed for a declaration that the suit property is a Government poromboke land under the control, maintenance and administration of the plaintiff municipality and consequently to grant permanent injunction restraining the defendants, their men and agents from enforcing any decree obtained without reference to the plaintiff and from interfering with the peaceful enjoyment of the suit property and for costs. 2. The averments in the plaint are as follows: The suit property with an extent of 529 sq.m. is situated between Thirunallar Road and Market street, Karaikal, as a triangle, is comprised in R.S.No.77/1 pt., T.S.Nos.2 to 14, ward F, Block 20 is a Government promboke property. The assessment certificate isseud by the Director of Settlements, Survey and Land Records, Pondicherry, dated 24.1.1974 would clearly prove the same. The defendant Darga which is situated very near the suit property onthe southern side of Thirunallar Road somehow managed to interpolate their name in the settlement register at the time of settlement resurvey. All the poromboke lands belonging to the Government are under the administration of the respective municipalities within whose limit they situate, as per Section 78 of the Municipalities Act. Thus,the suit property is under the control of the Karaikal Municipality. Originally the whole Government poromboke land was extending to 131 H 98A (00C a) in Karikal Municipal limit and this was originally in R.S.No.77. Later in the resurvey it was given the number 77/1 pt. Extending to 529 sq.m. Homeless people have constructed their huts unauthorizedly thereon and the Municipality issued notices to them under Section 425(1) of the Municipality Act seeking their eviction. The defendant Darga without any interest or title over the suit property appears to have instituted legal proceedings before the Courts of law against the occupants of the suit property and obtained a decree for eviction. In all the proceedings Karaikal Municipality is not a party and, therefore, the decree is not binding upon them. The defendant Darga without any interest or title over the suit property appears to have instituted legal proceedings before the Courts of law against the occupants of the suit property and obtained a decree for eviction. In all the proceedings Karaikal Municipality is not a party and, therefore, the decree is not binding upon them. The revenue and survey records would prove that the suit property is a Government Property. The defendant Darga has acted without any right over the suit property. Hence the suit. 3. The first defendant filed a written statement contending as follows: The suit is without any basis and is instigated by defendants 2 and 3, who are facing orders of eviction at the instance of the Darga. The plaintiff is estopped from challenging the title of the first defendant to the suit property, as they have been treating the suit property as that of the first defendant levying and collecting tax. The suit is barred by the doctrine of resjudicate. The suit is not properly valued and correct court fee has not been paid. The document relied upon by the plaintiff is not genuine. The suit property had never been the property of the Government nor was under the control of the municipality. The defendants had been exercising the right of ownership over the suit property. Moreover, the property has been enumerated as that of belonging to the first defendant. 4. The second defendant filed his written statement which runs as follows: The second defendant purchased the suit property from one Alamelu for valid consideration. The first defendant filed a suit for eviction against her and obtained an exparte decree and the defendant came to know about it only at the time of effecting delivery. At the time of purchase, the defendant was informed by Alamelu that the manaicut belonged to Karaikal Municipality. The first defendant is not the real owner and only Karaikal Municipality is the real owner. 5. On the above pleadings the learned trail Judge has framed three issues and one additional issue and after a close scrutiny of the documentary as well as the oral evidence, has decreed the suit as prayed for without costs. Aggrieved by the findings of the learned trial Court, the second defendant has preferred this appeal. 5. On the above pleadings the learned trail Judge has framed three issues and one additional issue and after a close scrutiny of the documentary as well as the oral evidence, has decreed the suit as prayed for without costs. Aggrieved by the findings of the learned trial Court, the second defendant has preferred this appeal. 6.Now the point for determination in this appeal is whether the suit property is a Government Poramboke under the control and management of the plaintiff-Municipality, under Pondicherry Municipality Act, 1973? 7.The point: - 7(a) The learned counsel appearing for the appellant would contend that the suit is bad for non-joinder of necessary party like Government. To substantiate his contention the learned counsel for the appellant would rely on AIR 1937 Madras 641 (G.Krishnaswami Naidu Vs. Municipal Council, Bellary and another). The said appeal had arisen out of an order passed by the District Munsif directing that the Government should be impleaded as a party to the suit. The question that arises for consideration is whether in the exercise of the discretion of the District Munsif under Order 1, Rule 10 of CPC, whether the District Munsif has gone wrong. It has been held in the above said dictum that: "Whether the Government is a proper party or not, would depend on the facts of each case and no general rule can be laid down. This action relates to a vacant site and the plaintiff claims a declaration that he is the owner thereof and that the Municipality has no right to interfere with any use he may make of it. The main defence of the Municipality is that the site forms part of Survey No.504-V and is registered in the village accounts as "Kuntha" and "Rastha," that the title thereto is in the Government and the same has vested in its for municipal purposes and that the Government should be made a party. Thus the claim is in respect of property which is asserted to be a public pathway. Thus the claim is in respect of property which is asserted to be a public pathway. If it is so, prima facie the title would be in the Government and in such cases, though the right of the Municipality to assert its claim over it for municipal purposes may be lost by adverse possession, the title of the Government would not be lost unless it is shown that the property was held adversely for over a period of 60 years and it would be open to the Government to remove any obstruction on the property and dedicate it again to a highway. This view was taken by Bhashyam Ayyanagar, J, in (1902) 25 Mad 635 (Subdaram Ayyar Vs. Municipality of Madura) at PP. 650 and 651. In remanding the case for disposal in second appeal, the learned Judge considered it desirable to make the Government a party in that suit. There a similar claim was made against the Municipality and in the course of the judgment the learned Judge made the following observation: "As some of the issues now to be sent for trial involve the question of the right of the Government to the ownership of the soil in public streets, and as all the material documents bearing on this question will be in the possession of Government, I think it desirable that the Secretary of State for India in Council should be joined as party to the suit and appeal in this and the connected second appeals.... In this case the Municipality did not assert a title in itself but set up title in the Government and claims to exercise certain rights over the site in question by virtue of the vesting of the said property by statute for limited purposes. In cases where the plea of jus tertii is set up, it is generally considered desirable to make the person whose title is set up, party to the suit to avoid multiplicity of litigation. In cases where the plea of jus tertii is set up, it is generally considered desirable to make the person whose title is set up, party to the suit to avoid multiplicity of litigation. Therefore in cases where the interests of the public are involved and the ownership of the Government is in question, it is very desirable and sometimes quite necessary to make the Government a party and avoid multiplicity of proceedings.” The above said dictum will not be applicable to the present facts of the case because in the case on hand the Municipality-plaintiff claims that as per Section 78 of the Pondicherry Municipalities Act, 1973, he is in the possession and enjoyment of the Government land and since defendants are trying to set up title for themselves, he has comeforward with the suit. Section 78 of the Pondicherry Municipalities Act, 1973, runs as follows: "(1) On and from the date of the commencement of this Act, all vacant lands belonging to or under the control of the Government situated within the local limits of a municipality, shall, subject to the provisions of Sub-Sections (2) and (3) and to such conditions as may be prescribed, be deemed to be in the possession or under the control of the council concerned for purposes of this Act. Explanation: - 1) For the purpose of this section "vacant land" includes a poramboke, donka or kunta, 2) The council shall keep all such vacant lands free from encumbracnes and shall restore the possession or control of any such land to the Government free of cost whenever it is required by the Government for its use or for any public purpose. 3) The council shall no _ (a) construct or permit the construction of any building or other structure on any such vacant land; (b) use or permit the use of such vacant land for any permanent purpose; or (c) alienate such vacant land to any third party, unless the prior permission of the Government is obtained by the council therefor after furnishing such information as the Government may require including the usefulness of the land for any housing scheme." The learned counsel for the appellant also relied on the AIR 1953 ASSAM 193 (Vol 49, C.N.79) [Chandra Mohan Vs. Union of India (FB)] and AIR 1954 MADRAS 479 (Vol 41, C.N.177)[Prodattur Municipality Vs. Gurnam Hanumanthu). Union of India (FB)] and AIR 1954 MADRAS 479 (Vol 41, C.N.177)[Prodattur Municipality Vs. Gurnam Hanumanthu). But the facts of the above said cases also will not be applicable to the present facts of the case because those decisions are prior to the Pondicherry Muncipalities Act, 1973 came into force. 7(b) The other limb on contention putforward by the learned counsel for the appellant is that as per the evidence of P.W.2-VAO, who would depose in the cross-examination that the suit property is given Patta No1141 in the name of the present Truste-Periyapallivasal and prior to that during resurvey of the Natham lands were shown as Government Poramboke. Ex.A.7-assessment certificate, is in respect of the suit property, wherein also it has been sated that Patta No.1141 has been assigned in the name of Periyapallivasal. Ex.B.1 is a Gazette Notification, which also shows that the suit land belongs to Periyapallivasal. The learned counsel for the appellant would contend that Periyapallivasal was also a necessary party to the suit. But this plea was not raised before the trial Court. In the written statement filed by the first defendant, the first defendant would claim that the suit property belongs to Musthur Sahip Darga, Karaikal. To show that the suit property belongs to the Musthur Sahip Darga, there was no evidence adduced before the trial Court. It was not contended before the trial Court that the suit property belongs to the Periyapallivasal. Under such circumstances, the plea raised by the learned counsel for the appellant that the suit property belongs to the Periyapallivasal cannot be sustained, without a plea in the written statement. It is well established principle that a patta is not a document of title. So on the basis of Ex.B.1 it cannot be said that the suit property belongs to Periyapallivasal. There was no witness examined to prove Ex.B.1. 7(c) The learned Government Advocate for Pondicherry, relying on Order 1 Rule 13 of CPC would contend that with regard to non-joinder or misjoinder of parties, an objection is to be taken at the earliest possible opportunity preferably before settling the issues and if any such objection is not taken, shall be deemed to have been waived. 7(c) The learned Government Advocate for Pondicherry, relying on Order 1 Rule 13 of CPC would contend that with regard to non-joinder or misjoinder of parties, an objection is to be taken at the earliest possible opportunity preferably before settling the issues and if any such objection is not taken, shall be deemed to have been waived. So the Government Advocate, Pondicherry, would contend that since the appellant has not taken a objection in the written statement as to the suit is bad for non-joinder of parties like Government or Periyapallivasal, so it is to be presumed that the said defence was waived. Order 1 Rule 13 of the Civil Procedure Code runs as follows: "All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deem to have been waived." The learned trial Court at para 11 of its judgment has clearly observed that there was no document produced by the first defendant-Darga to show that the suit property belongs to Darga. Under such circumstances, the defence putforward by the first defendant that the suit property belongs to Darga cannot hold any water. 7(d) The learned Government Advocate, Pondicherry, relying on 1996(6) SCC 223 (Sawarni Vs. Inder Kaur), contended that the mutation of name in revenue records will not create or extinguish the tile nor has any presumptive value on title, but it only entitles the person concerned to pay land revenue. The exact observation in the above said dictum runs as follows: "The lower appellate Court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question." For the same proposition of law the learned Government Advocate, Pondicherry, relied on 2004(12) SCC 58 (Suman Verma Vs. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question." For the same proposition of law the learned Government Advocate, Pondicherry, relied on 2004(12) SCC 58 (Suman Verma Vs. Union wherein it has been held as follows: "In our opinion, owning of agricultural property and getting the name entered in revenue record are two different and distinct things. Mutation entry does not confer right or title to the property. Though the law is very well settled, in our opinion, CAT was right in relying upon the decision of this Court reported in 1996(6) SCC 223 (Sawarni Vs. Inder Kaur), wherein this Court held that mutation entry nerither creates nor extinguishes titie or ownership." Under such circumstances, there is absolutely no merit in this appeal. Point is answered accordingly. 8. In fine the appeal is dismissed confirming the decree and judgment passed in O.S.No.33/1989 on the file of the Additional District Court, Pondicherry at Karaikal. Considering the facts and circumstances of the case, there is no order as to costs.