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Gireesh Chandra Babu A. V. Divisional Forest Officer,Thiruvananthapuram, R.S.A. No. 1028 of 2006 Ker.

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2009 (1) KHC 930

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Justice V.Ramkumar

2009-02-19T00:00:00

R.S.A. No. 1028 of 2006

Gireesh Chandra Babu A. v. Divisional Forest Officer,Thiruvananthapuram

Advocates appearing for the Parties : Rajan Joseph; Ranjith Thampan,George Zachariah Eruthickal

J U D G M E N T

V.Ramkumar, J.

 

1.  An interesting question of locus standi comes up for resolution in these Second Appeals.

2.  The common appellant in these Second Appeals is the plaintiff in OS No. 81 of 1985 on the file of the I Addl. Sub Court, Thiruvananthapuram. The said suit was one for partition and separate possession of the plaintiff's half share over the plaint schedule property admeasuring 30 acres of land and also for a temporary injunction restraining the 8th defendant State of Kerala represented by the Chief Secretary from issuing pattayams in respect of the plaint schedule property to any of the other defendants in the suit.

THE PLAINTIFF'S CASE

3. The plaint schedule property admeasuring 30 acres comprised in re-survey No. 6 of Vithura Village (formerly Arianad Village) of Nedumangad Taluk in Thiruvananthapuram District belonged to the plaintiff's deceased mother Kunjikamakshi as per Ext. A1 settlement deed dated 01/07/1118 M.E. corresponding to the year 1943. Subsequently Kunjikamakshi died on 04/12/1120 M.E. On her death the plaint schedule property devolved on the plaintiff and his brothers and sisters who are defendants 1 to 6. The plaintiff and defendants 1 to 6 have thus become co-owners of the property. Eventhough the plaintiff and defendants 1 to 6 are having equal rights over the property, as per an oral agreement between them the plaintiff is entitled to get half of the plaint schedule property. The 7th defendant Lakshmanan Vaidhyan Krishnan is a person who has planted medicinal plants in the plaint schedule property with the permission of the parents of the plaintiff. Hence he is also made a formal party to the suit. In case defendants 1 to 7 succeed in getting some favourable orders from the Government it may not be possible for the plaintiff to get effective relief in the suit. As the plaintiff is not seeking any permanent relief against the 8th defendant State of Kerala and since time was not sufficient for issuing notice to the Government the plaintiff has not sent a notice under Section 80 CPC and has filed a petition seeking exemption from notice. The other legal heirs are attempting to get assignment of the property from the Government. It has, therefore, become necessary for the plaintiff to seek partition and separate possession of his 1/2 share over the plaint schedule property. The plaintiff also seeks a temporary injunction against the 8th defendant State of Kerala restraining the State from taking steps for assignment of the plaint schedule property to the other legal heirs. Hence the suit.

POST INSTITUTIONAL DEVELOPMENTS

4. Defendants 3, 5 and 6 remained ex parte and did not enter appearance through counsel. The 7th defendant died and his legal representatives were impleaded as additional defendants 9 to 11. Eventhough defendants 1, 2 and 4 entered appearance through Adv. Sri. A. Mahalchandra Babu, the 7th defendant through Advocate Sri. S. V. Premakumaran Nair, 8th defendant State of Kerala through the Government Pleader Adv. Sri. K. R. Nandakumar, Addl. defendants 9 to 11 through Advocate Smt. S. Indira Bai and Additional 12th and 13th defendants through Adv. Sri. S. V. Premakumaran Nair, all of them subsequently remained ex parte without filing a written statement.

THE EX PARTE DECREES

5.      On 14/12/1988 the learned Sub Judge after marking Ext. A1 settlement deed dated 01/07/1118 M.E. through the plaintiff who filed an affidavit, passed a preliminary as prayed for on the view that the plaint averments stood proved by affidavit and Ext. A1.

6.      IA 790 of 1989 was an application filed by the plaintiff for the passing of a final decree. Eight years thereafter, the Trial Court passed a final decree also on 28/10/1997.

THE CHALLENGE AGAINST THE EX PARTE DECREES

7. The State, represented by the Chief Secretary, filed IA No. 3783/1994 under Order IX Rule 13 CPC to set aside the ex parte preliminary decree. The said application filed through the Addl. Government Pleader Sri. M. M. Hussain was dismissed on 25/03/1996. Nearly three years thereafter one Sri. Shripal, the then Divisional Forest Officer (DFO for short), Thiruvananthapuram, filed CMA No. 117 of 1999 before the District Court, Thiruvananthapuram, through Adv. Sri. M. Rajagopalan Nair, the District Government Pleader, Thiruvananthapuram, against the order passed by the Trial Court on IA No. 3783/1984 dismissing the petition filed by the State under Order IX Rule 13 CPC. In the meanwhile on 28/10/1997 the Trial Court had passed a final decree allotting 14.87 acres of land to the plaintiff and awarding a sum of Rs.2248.50 towards the value of a share with a charge on the plot allotted to the defendants. AS Nos. 252 and 253 of 1999 were two appeals preferred by Sri. Shripal, the DFO, Thiruvananthapuram against the preliminary decree and final decree respectively passed by the Trial Court. The CMA referred to above as well as the two appeals filed by the DFO were belated appeals. IA 1980 of 1999 in CMA 117 of 1999, IA 1983 of 1999 in AS 252 of 1999 and IA No. 1978 of 1999 in AS No. 253 of 1999 were applications filed by the DFO for condoning the delay in filing the three appeals. Eventhough the plaintiff and defendants 2 to 6 opposed the applications for condoning the delay the learned District Judge as per common Order dated 09/01/2001 allowed the applications for condoning the delay in filing the appeals. CRP Nos. 1347, 1388 and 1438 of 2001 were filed before this Court challenging the common order passed by the District Judge allowing the petitions to condone the delay. Those CRPs were dismissed by this Court on 17/01/2006. The DFO had also sought leave of the lower Appellate Court to file the above appeals as he was not a party before the Trial Court. IA No. 1981 of 1999 was the leave application filed in AS No. 252 of 1999 and IA No. 1976 of 1999 was the leave application filed in AS No. 253 of 1999. The said petitions were also allowed by the lower Appellate Court. Subsequently as per common judgment dated 27/05/2006 the lower Appellate Court allowed the appeals filed by the DFO against the preliminary and final decrees and dismissed the suit after holding that the plaint schedule property which was a reserve forest could not have been the subject-matter of a suit for partition and that the judgments and decrees passed by the Trial Court were obtained by fraud and collusion. CM A117 of 1979 was dismissed by the lower Appellate Court as unnecessary in view of the decision taken on the main appeals against the ex parte decrees. Hence, these Second Appeals.

THE QUESTIONS OF LAW IN SECOND APPEALS

8. The common questions of law formulated in the memoranda of Second Appeals are the following:

i) Whether the 1st respondent Divisional Forest Officer is entitled to file appeal against the decree of the Court below in view of the provisions contained in Section 79 CPC and Article 300 of the Constitution of India?

ii) Whether the 1st respondent Divisional Forest Officer is entitled to file appeal against the decree of the Court below when the 8th respondent State of Kerala is already in the party array and the decree as against the State has achieved finality?

9. I heard Sr. Advocate Sri. Rajan Joseph, the learned counsel appearing for the common appellant and the learned Addl. Advocate General Sri. Ranjith Thampan appearing for the State of Kerala.

STAND OF THE PLAINTIFF/COMMON APPELLANT

10. Sr. Advocate Sri. Rajan Joseph appearing for the appellant/plaintiff made the following submissions before me in support of these appeals:

This was a case in which the State of Kerala was not a necessary or proper party. The State was impleaded as the 8th defendant only because some of the plaintiff's brothers had applied to the State for pattayams and also for effecting mutation. No relief of a permanent nature was claimed in the suit against the State. The plaintiff had only asked for a temporary injunction against the State restraining the State from issuing pattayams with regard to any portion of the plaint schedule property to any of the heirs of the plaintiff's parents. No written statement was filed by the State. On 30/11/1988 the State was declared ex parte. On 14/12/1988 a preliminary decree for partition was passed as prayed for. The plaintiff had thereafter filed IA 790 of 1989 for the passing of a final decree. A commission was issued by the final decree Court. IA No. 3783 of 1994 was filed by the State represented by the Chief Secretary under Order IX Rule 13 CPC to set aside the ex parte preliminary decree. On 25/03/1996 the said application was dismissed by the Trial Court. The said order has become final. Subsequently on 28/10/1997 a final decree was passed allotting plot HLMNOPI admeasuring 14.87 acres to the plaintiff and plot ABCDEFCHIJK to the other sharers namely defendants 1 to 6 jointly. CMA No. 117 of 1999 was an appeal filed by the DFO, Thiruvananthapuram before the District Court, Thiruvananthapuram challenging the order passed by the Trial Court on IA 3783 of 1994. Similarly, the DFO also filed separate appeals against the preliminary and final decrees as A.S Nos. 252 and 253 of 1999 before the District Court, Thiruvananthapuram. All the three appeals were filed with petitions to condone the inordinate delay. Eventhough the appellant/plaintiff opposed the delay petitions, the same were allowed by the District Judge. Subsequently as per the impugned common judgment dated 27/05/2006 the learned District Judge allowed both AS Nos. 252 and 253 of 1999 and dismissed the suit filed by the appellant. CMA No. 117 of 1999 was dismissed as unnecessary. The appellant/plaintiff had questioned the maintainability of the appeals filed by the DFO who was not a party before the Trial Court. Merely because the lower Appellate Court had granted leave to the DFO for filing the appeals, it does not alter the position. The DFO is not a person aggrieved by the decrees. The State who was the 8th defendant in the suit will continue to be the party aggrieved by the decrees. When the State had unsuccessfully challenged the ex parte preliminary decree by filing IA 3783 of 1994 under Order IX Rule 13 CPC, it was not open to the DFO to allege fraud or collusion on the part of the Government Pleader in not filing a written statement or appeals against the preliminary and final decrees. When an ex parte decree is passed against the defendant in a suit, such defendant has two clear options, — one to file an appeal under Section 96 CPC and another, to file an application under Order IX Rule 13 CPC for setting aside the ex parte decree. In a case where the application under Order IX Rule 13 CPC. Is dismissed the doctrine of "issue estoppel" and "cause of action estoppel" would get attracted and it may not be permissible for the defendant thereafter to file an appeal and raise the very same contentions in the appeal. His remedy in such a case would only be to file an appeal under Order XLIII Rule 1 CPC challenging the dismissal of the petition filed under Order IX Rule 13 CPC. (Vide- Bhanu Kumar Jain v. Archana Kumar and Another, AIR 2005 SC 626). In the case on hand, the State did file an application as IA 3783/1994 under Order IX Rule 13 CPC and the same was dismissed on 25/03/1996. The said dismissal has become final. No appeal has been filed by the State under Order XLIII Rule 1 CPC challenging the dismissal of IA 3783 of 1994. Similarly, the State has not filed any appeal either against the preliminary decree passed on 14/12/ 1988 or against the final decree passed on 28/10/1997. Even if the State were to file an appeal against the final decree, Section 97 CPC would preclude the State from filing such an appeal since no appeal had been filed by the State against the preliminary decree. When the State alone which was a party defendant before the Trial Court could have filed appeals against the decrees passed by the Trial Court, it was the DFO who filed the appeals. The view taken by the lower Appellate Court to hold that the appeals filed by the DFO were maintainable is opposed to Section 79 CPC as well as Article 300 of the Constitution of India. In a case arising from Andhra Pradesh, the Supreme Court had occasion to consider the maintainability of a Writ Petition filed by the Conservator of Forests challenging an order passed by the District Collector in favour of certain pattadars. In Chief Conservator of Forests, Govt. of A.P. v. Collector and Others, AIR 2003 SC 1805 the Apex Court observed as follows:

"6. Mr. P. P. Rao, learned counsel appearing for the pattedars-respondents in Civil Appeal No. 8580 of 1994 and Mr. Harish N. Salve, learned Senior Counsel appearing for the Pattedars-respondents in Civil Appeal No. 9097 of 1995, raised a preliminary objection as to the maintainability of the writ petition filed by the Chief Conservator of Forest as well as the appeal arising therefrom. Article 300 of the Constitution of India, it is contended, provides that the Government of a State may sue or be sued in the name of the State; Section 79 of the Code of Civil Procedure, 1908 directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary to that State or the Collector of the District before the institution of the suit; and Rule 1 of Order 27 lays down as to who should sign the pleadings: No individual officer of the Government under the scheme of the Constitution or the Code of Civil Procedure can file a suit or initiate any proceeding in the name of the post he is holding, which is not a juristic person. Ms. K. Amreswari, learned senior counsel appearing for the appellants, has argued that before filing the appeal, the Chief Conservator of Forest had obtained orders and, therefore, the writ petition and the appeal should be deemed to be filed by the Government of Andhra Pradesh; not naming the Government of Andhra Pradesh in the writ petition as the petitioner or in the appeal as the appellant is only a procedural matter and, therefore, it is not fatal to the maintainability of the writ petition and the appeal.

7.  To appreciate the contention of the learned senior counsel, it will be useful to refer to the relevant provisions of the Constitution of India (for short, "the Constitution") and the Code of Civil Procedure, 1908 (for short, "the CPC"), Article 300 of the Constitution falls in Chapter III, which deals with property, contract, rights, liabilities, obligations and suits.

Article 300 reads as follows:

"300. Suits and proceedings.— (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution—

(a)      any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b)      any legal proceedings are pending to which a province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings."

8.      From a perusal of the provision, extracted above, it is evident that the Government of India as also the Government State may sue or be sued by the name of the Union of India or by the name of the State respectively, subject, of course, to any provisions which may be made by Act of Parliament or of Legislature of such State by virtue of powers conferred by the Constitution.

9. Section 79 of the CPC deals with suits by or against the Government. It reads
thus:

"79. Suits by or against Government.— In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be shall be—

(a)      In the case of a suit by or against the Central Government, the Union of India; and

(b)      In the case of a suit by or against a State Government, the State."

A plain reading of Section 79 shows that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, in the case of the Central Government, the Union of India and in the case of the State Government, the State, which is suing or is being sued.

10.  Order 27 of Rule 1, as mentioned above, deals with suits by or against the Government or by officers in their official capacity. Rule 1 of Order 27, CPC says that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may by general or special order appoint in that behalf and shall be verified by any person whom the Government may so appoint.

11.  It needs to be noted here that a legal entity – a natural person or an artificial person – can sue or be sued in his/its own name in a Court of law or a Tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue. or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joiner of a party suing or being sued. In the case of misdescription of a party, the Court may at any stage of the suit/proceedings permit correction of the cause title so that party before the Court is correctly described; however, a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 of CPC mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1, CPC. Provides remedy when a suit is filed in the name of wrong plaintiff and empowers the Court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings.

12.The question that needs to be addressed is, whether the Chief Conservator of Forest as the petitioner/appellant in the writ petition/appeal is a mere misdescription for the State of Andhra Pradesh or whether it is a case of non-joinder of the State of Andhra Pradesh – a necessary party, in a lis dealing with the property of a State. There can be no dispute that the State is the necessary party and should be impleaded as provided in Article 300 of the Constitution and Section 79 of CPC. Viz.. in the name of the State/ Union of India, as the case may be. lest the suit will be bad for non-joinder of the necessary party. Even post in the hierarchy of the posts in the Government set up. from the lowest. to the highest, is not recognised as a juristic person nor can the State be treated as represented when a suit/proceeding is in the name of such offices/posts or the officers holding such posts, therefore, in the absence of the State in the array of parties, the cause will be defeated for non-joinder of a necessary party to the lis, in any Court or Tribunal. We make it clear that this principle does not apply to a case where an official of the Government acts as a statutory authority and sues or pursues further proceeding in its name because in that event, it will not be as suit or proceeding for or on behalf of a State/Union of India but by the statutory authority as such."

Merely because the lower Appellate Court granted leave to the DFO for filing the appeals, the same does not cloth the DFO with the authority to assail the decrees. If at all anybody is aggrieved, it is the State. The State had not even filed a written statement in the suit. It is true that the suit property is Government land. But then, the parties were only dividing their possessory right over the suit property and the State was not a necessary party in such a suit. The fraud and collusion alleged by the DFO have not been substantiated. The earlier suit filed by the plaintiff's father Madhavan Anirudhan as OS 35 of 1965 was a suit for injunction regarding the properties partly comprised in re-survey 6 and other survey numbers. The present suit property was not included in the said litigation. This Court in SA1132 of 1969 arising out of the said earlier litigation had only declared the possessory title of the plaintiff therein. Even if the suit property is a forest land, it was in the possession of the plaintiff's father Anirudhan long prior to 01/01/1977 and therefore protected by the Kerala Land Assignment (Regularisation of Occupations of Forest Lands prior to 01/01/1977) Special Rules, 1993. The lower Appellate Court was thus wrong in entertaining the appeals, much less, allowing the appeals filed at the instance of the DFO in his official capacity and not on behalf of the State.

JUDICIAL RESOLUTION

11. I am afraid that I cannot agree with the submissions made on behalf of the appellant/plaintiff. The fact that the plaint schedule property admeasuring 30 acres of land comprised in Re-survey 6 of Vithura Village (formerly Arianad Village) in Nedumangad Taluk is a reserve forest does not admit of any doubt. The suit property falls under the Palode Forest Range. It was with regard to this property that the plaintiff sought a preliminary decree for partition as against his brothers and sisters who are defendants 1 to 6. There is no subsisting, dispute that with regard to properties including the present plaint schedule property there was an earlier litigation as OS No. 35 of 1965 before the Addl. Sub Court, Thiruvananthapuram filed by Madhavan Anirudhan, the father of the plaintiff and defendants 1 to 6. In paragraph 12 of the impugned common judgment the learned District Judge has observed that it was conceded before him by the counsel appearing for the plaintiff and defendants 1 to 6 that the property which was the subject-matter of the earlier litigation was the very same property. The above observation has not been taken exception to in the memoranda of Second appeal. Hence, the said observation is to be treated as final and conclusive. The said earlier suit was one for declaration of the title and possession of the plaintiff therein and for a perpetual injunction restraining the State of Kerala and the Forest Range Officer, Palode from trespassing upon the plaint schedule properties and reducing the same to their possession or in any manner disturbing the peaceful possession of the plaintiff over the said properties. Items 1 to 3 of the plaint schedule properties in OS No. 35 of 1965 were comprised in re-survey Nos. 3032, 3033, 3034 and 3183 of which the lands comprised in re-survey Nos. 3032, 3033 and 3034 were registered holdings, and the land comprised in re-survey 3183 was tharisu land. Plaint schedule item No. 4 therein was the present suit property admeasuring 30 acres comprised in Re-survey 6 of Arianad Village. A Commission was taken out in that suit. The said suit was partly decreed on 30/10/1968 by the Sub Court holding that the plaintiff, Madhavan Anirudhan was in possession of only 13.34 acres. The suit was dismissed with regard to the rest of the suit properties including the property comprised in Re-survey No. 6. The State filed an appeal before the District Court, Thiruvananthapuram as A.S 241 of 1969 challenging the decree passed by the Trial Court with regard to 13.34 acres. In the said appeal, the District Court had issued a fresh commission. Based on the additional evidence and the other evidence in the case, the District Court as per judgment and decree dated 06/08/1969 allowed the appeal filed by the State. Aggrieved by the decree passed by the District Court, Madhavan Anirudhan, the plaintiff, in that suit filed SA No. 1132 of 1969 before this Court. As per judgment dated 22/06/1970 this Court, partly allowing the Second Appeal declared the possessory title of Anirudhan over the Puthuval nilam admeasuring 3.32 acres shown as two green shaded plots in Ext. C2 plan and 1.12 acres of Puthuval manapuram shown as the light brown shaded plot in Ext. C2 plan in addition to the registered holdings in re-survey Nos. 3032, 3033 and 3034 and the tharisu land comprised in re-survey No. 3183 altogether having an extent of 9.34 acres. The suit was dismissed with regard to the rest of the properties which include 30 acres of land comprised in re-survey No. 6. In the course of the judgment, V. R. Krishna Iyer, J. has observed as follows:

"Possession by itself is a substantiative right recognised by law with some legal incidents attached to it. This interest is referred to as possessory title as distinct from proprietary title. But can such a possessory title avail against the true owner? This question has been answered in 1964 KLT 458 by Mr. Justice Raman Nayar who held that a person in possession without title is entitled to remain in possession even as against the lawful owner until evicted in due course of law and is, therefore, entitled to get an order of injunction restraining the true owner from disturbing his position. Since this proposition put forward by the appellant's counsel has not been challenged by the respondent I am adopting it as good law, although there may be some doubt as to the efficacy of possessory title against the original owner."

12.     As noted earlier the suit OS No. 35 of 1965 was dismissed with regard to the plaint schedule item No. 4 therein which was 30 acres of land comprised in Re-survey 6 of Arianadu Village (Present Vithura Village). It is with regard to the very same property that the plaintiff who is none other than the son of Anirudhan (who was the plaintiff in OS 35 of 1965) instituted the present suit. OS No. 35 of 1965 was instituted by Anirudhan on the strength of a power-of-attorney dated 03/07/1118 M.E. executed by his late wife Kunjikamakshi and the allegation was that the Forest Range Officer, Palode and the forest officials under him had attempted to take forcible possession of the properties. In OS 35 of 1965 Madhavan Anirudhan was relying upon the very same settlementof1118 M.E. (Ext. A1 in the present suit) in favour of his wife Kunjikamakshi. It was in the judgment dated 22/06/1970 in SA 1132 of 1969 arising out ofOS35of1965thatthisCourt dismissed the suit with regard to the entire suit propertyexcluding9.34acres.When OS 35 of 1965 filed by the present plaintiff's father Madhavan Anirudhan with regard to the 30 acres of forest land comprised in Re-survey 6 of Arianadu Village was dismissed holding that it was a forest land not in the possession of Madhavan Anirudhan, the present suit filed by Madhavan Anirudhan's son for partition of the possessory rights of the very same 30 acres of forest land was not maintainable, besides being misconceived. Section 11 CPC squarely applied attracting the bar of res judicata to the present suit. What is required to be proved or established to held that there is bar of res judicata for the subsequent suit is that in both the suits, the title of the parties agitated in identical, but not the identity of the actual properties involved in the two litigations. (See-Khalid v. Suleikha, AIR 1986 Ker. 251 : 1986 KLT 1113 (FB)).

13. Eventhough the State of Kerala was impleaded as the 8th defendant by alleging in the plaint that no permanent relief was sought against the State, the relief which was claimed against the State was a temporary injunction restraining the State and its officials from assigning any portion of the plaint schedule property to any of the other defendants who are the brothers and sisters of the plaintiff. Since the State of Kerala and the Forest Range Officer, Palode were defendants in OS 35 of 1965 it was quiet easy for the Government Pleader in-charge of the case to find out that the present suit was pertaining to the very same forest land which was the subject-matter of OS 35 of 1965, if he had taken some pains to verify this fact through the forest officials. Apart from the fact that no counter or written statement was filed by the State, it chose to remain ex parte. The Government Pleader in-charge of the case was permitting a reserve forest to be partitioned between the legal heirs of a person who claimed to be an encroacher in possession of such forest land and lost the legal battle in that behalf. A perusal of the averments in the plaint in the present suit and a careful survey of the progression of the suit will easily reveal that the dispute put forward by the plaintiff between his own brothers and sisters was only a paper fight evidently projected with a view to get the imprimatur of the Court so as to sanctify his assertion even as against the State that he and his brothers and sisters were in joint possession of 30 acres of reserve forest which is a prime tract located within the Palode Forest Range in Nedumangad Taluk. Even with regard to the registered holdings and the manpuram Puduval comprised in Re-survey Nos. 3183, 3034, 3033 and 3032 over which this Court declared the possessory right of the plaintiff therein, Justice Krishna Iyer observed as follows:

"Of course, this will not preclude the State from taking action according to law to recover possession from the plaintiff nor wilt it in any manner prejudice the prayer of the plaintiff for getting assignment of those lands from the State on the basis that he has been in possession, if this circumstance may be treated as a preferential claim."

The above observation as well as the passage extracted in paragraph 11 above are in recognition of the wholesome principle that no injunction can be maintained against the true owner. (See – Premji Ratansey Shah and Others v. Union of India and Others, 1994 (5) SCC 547, Mahadeo Savlaram Shelke and Others v. Pune Municipal Corporation and Another, 1995 (3) SCC 33, Tamil Nadu Housing Board v. A. Viswam, 1996 (8) SCC 259 and Hanumanthappa v. Muninarayanappa, 1996 (11) SCC 696).

14. Instead of guarding the reserve forest admeasuring 30 acres the litigation agents of the State were presumably colluding with the plaintiff and conniving at the attempted encroachment of the Forest Land. It is now beyond any controversy that the 30 acres of suit property is a forest land forming part of the reserve forest within the Palode Forest Range in Nedumangad Taluk of Thiruvananthapuram District. Even before the coming into force of the Forest (Conservation) Act, 1980, forest lands in the State were not liable to be used for non-forest purpose. Article 48Aof the Constitution of India occurring in Part IV dealing with Directive Principles of State Policy reads as follows:

"48A. Protection and improvement of environment and safeguarding of forests and wild Life.— The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."

Likewise, it has been made a fundamental duty of every citizen of India to protect and improve the forest and other natural resources. Article 51A(g) dealing with the Fundamental Duties of citizens in Part IVA of the Constitution of India reads as follows:

"51 A. Fundamental duties.— It shall be the duty of every citizen of India (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;" (other clauses omitted)

In the classic judgment of the Apex Court in M. C. Mehta v. Kamalnath and Others, 1997 (1) SCC 388it has been observed as follows:

"The notion that the public has a right to expect certain lands and natural areas to
retain their natural characteristic is finding its way into the law of the land. The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to even/one irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Though the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing, the American Courts in recent cases expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations therein to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which  lands, waters Or airs are protected by the-public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources. Our legal system – based on English common law – includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. There resources meant for public use cannot be converted into private ownership. Thus the Public Trust doctrine is a part of the law of the land".    (paras 23 to 25, 33, 34 and 39)

Thus, the State is the trustee of all natural resources which are meant for public use and enjoyment. Those resources cannot be converted into private ownership or enjoyment. When by the extension of the doctrine of public trust, the State which is the trustee of all natural resources including forests is under an obligation to protect those resources and ensure that they are made available for public use and are not permitted to be brought under private ownership or for commercial ventures, it was not permissible for the State or its agencies including those in-charge of the State litigation to permit the suit property to be encroached upon or possessed by private persons like the plaintiff and his brothers and sisters. This was an obligation upon the State even before the coming into force of the Forest (Conservation) Act, 1980.

15. Section 66 of the Kerala Forest Act, 1961 reads as follows:

"66. Power to prevent commission of offence.Every Forest Officer and Police Officer shall prevent, and may interfere for the purpose of preventing the commission of any forest offence and shall have power to evict all encroachers and squatters from Reserved Forests or other lands under the control of the Forest Department and to . confiscate or demolish any sheds or other structures put up in such lands. Forest Officers shall have the powers of the Police Officers for the purposes of investigation or prevention of forest offences and the collection of evidence."

Thus, every forest officer has a statutory duty to eject all encroachers from reserve or other lands under the control of the Forest Department. In Chief Secretary v. Mathai Kuriakose, 1988 (2) KLT 221 – Sukumaran, J. observed as follows:

"An encroacher into the forest area is a self proclaimed offender of the Constitution of India; for, after the amendment of the Constitution in 1976, protection of the forest is a constitutional obligation of the State."

Section 22 of the Kerala Forest Act, 1961 is also pertinent in this connection. The said Section reads as follows:

"22. No right acquired over Reserved Forests except as herein provided.—

No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was published or by succession from such persons:

Provided that no patta shall, without the previous sanction of the Government, be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void."

Thus, encroachers or trespassers of Government forest land cannot claim any protection or a right to continue in possession thereof. A learned Single Judge (P. Krishnamoorthy, J.) of this Court in Chief Secretary and Others v. Ayllumpilla Mohammed (Judgment dated 21/06/1990 in SA 7 of 1985) held that GO (P) 289/68/Agri. (Forest Estt.) dated 07/06/1968 produced as Ext. A3 in that case entitling encroachers of forest lands prior to 01/01/1968 to continue in possession does not have any statutory force and it was contrary to the provisions of the Kerala Forest Act, 1961. To the same effect is the judgment of another learned Single Judge (T. L. Viswanatha Iyer, J.) in Chacko Thomas v. State of Kerala and Others (Judgment dated 22/11/1988 in OP No. 10952/1987). Similarly, the very same learned Judge (T. L. Viswanatha Iyer, J.) in the judgment dated 18/02/1988 in OP No. 11203 of 1985 (Kuriakose Chacko @ K K. Chacko and Another v. State of Kerala and Others) rejected the contention of the petitioners therein that they were entitled to continue in possession and seek assignment on registry the forest lands which were encroached upon prior to 01/01/1977 in view of the proclaimed policy of the State Government. In the Judgment dated 09/10/1997 in OP No. 17128 of 1997, (Purushothaman and Others v. State of Kerala and Others – Justice P. K. Balasubrahmonian held that river purambokes are needed for the protection of the rivers and to maintain the ecological balance and also to keep the environment clean and therefore it was not proper for the State and its officers to assign away river purambokes or permit trespassers to encroach upon such purambokes.

16. The proposition of law discernible from Packiyam Ammal v. PattuAmmal, AIR 1999 Madras 383, Philip and Others v. Scaria and Others, 1987 (1) KLT 213, Vawakkavu Muslim Thaikkavu Palli v. Narayanan Purushan, 1991 (2) KLT 477 and Appukkuttan Chettar v. Lathika DeviAmma, 2005 (1) KLT 260 that in suits for partition, injunction and recovery of possession as between private persons claiming possessory rights in respect of lands of which the Government is the paramount title holder, the State need not be made a party, cannot obviously apply to Government reserve forests and river purambokes which are covered by the public trust doctrine and which play a vital role in maintaining the ecological balance of our environment.

17.        In view of the above legal position the State or its agencies and instrumentalities cannot shirk their duty of preserving and protecting forest. Instead of discharging their moral, legal and constitutional obligation of saving 30 acres of reserve forest from private infiltration and transgression, the law officers in-charge of the case were acting in collusion with the law – breakers and thereby betraying the confidence reposed in them by the State. Had it been brought to the notice of the Trial Court that the suit property is a substantial portion of a reserved forest, the Trial Court would not have passed a preliminary decree for partition, much less, pass a subsequent final decree. Before the Trial Court the Government pleader in-charge of the case was one K. R. Nandakumar. No doubt, an application was filed as IA No. 3783 of 1997 before the Trial Court by Addl. Government Pleader Sri. M. M. Hussain seeking to set aside the ex parte preliminary decree passed on 14/12/1988. But the said application was filed after six years of the preliminary decree and the Trial Court did not accept the contention of the Forest Range Officer that he came to know of the suit only on 01/11/1992 when the Advocate Commissioner visited the suit property. Accordingly, as per Order dated 25/03/1996 the Trial Court dismissed the application holding inter alia that the applicant failed to show sufficient cause for his non-appearance on 30/11/1998 on which date the 8th defendant State of Kerala was set ex parte. It was also held that even if the ex parte decree was obtained by the plaintiff fraudulently without disclosing the earlier suit filed as OS No. 35 of 1965, the same cannot be set aside in a proceedings under Order 9 Rule 13 CPC. The matter was left there since at that level, Sri. Hussain could not possibly do anything else except to recommend a further challenge at the District Court level. It was five years thereafter that an enterprising Divisional Forest Officer by name Shripal noticing that 30 acres of reserve forest had been allowed to be partitioned between the members of a family rushed to the District Court, Thiruvananthapuram and sought leave to file appeals against the order dated 25/03/1996 passed by the Trial Court dismissing IA 3783 of 1994 which was filed under Order IX Rule 13 CPC. The DFO also sought leave to file separate appeals against the preliminary and final decrees passed in the case. Leave was granted by the District Judge. Accordingly, CMA No. 117 and AS Nos. 252 and 253 of 1999 were filed by the DFO who also filed IA Nos. 1980, 1983 and 1978 of 1979 respectively for condoning the delay in filing those appeals. Eventhough the applications to condone the delay were opposed as per common order dated 09/01/2001 the learned District Judge allowed the applications and condoned the delay. Thereafter, as per the impugned common judgment dated 27/05/2006 the learned District Judge, has allowed AS Nos. 252 and 253 of 1999 and has set aside the preliminary and final decrees and has dismissed the suit. CMA 117 of 1999 was dismissed as unnecessary. In the course of the judgment the learned District Judge (Sri. D. Pappachan) has observed that the present suit was filed suppressing the institution of the earlier suit OS 35 of 1965 and the final verdict passed by this Court. The learned District Judge has also observed that the plaintiff has been guilty of misleading the Court by putting forward inconsistent contentions and that the ex parte preliminary decree obtained from the Trial Court was by practising fraud and collusion.

18.   It is relevant to note in this context that in a petition under Order IX Rule 13 CPC challenging an ex parte decree or in a further appeal there from under Order XLIII Rule 1(d) CPC, the controversy is ordinarily restricted to the sufficiency or otherwise the cause put forward for not appearing before the Court when the suit was called on for hearing. But in a regular appeal under Section 96 read with Order XLI Rule 1 CPC against the ex parte decree, it is open to the defendant who was set ex parte before the Trial Court to contend before the Appellate Court that even if he was ex parte, the Trial Court should not have passed the impugned ex parte decree for all or any of the grounds raised by him in such appeal.

19.      Where a decree has been obtained by fraud the same is vitiated and cannot have any efficacy whatsoever. A person who by fraudulent means attempts to obtain a verdict in his favour can be summarily thrown out at any stage of the litigation. If a judgment is procured by withholding vital documents in order to gain an advantage over the opposite party, the person guilty of suppression would be playing a fraud on the Court as well as on the opposite party. A decree obtained by practising fraud or collusion is a nullity because fraud robs any instrument or judgment of all its sanctity. {Vide -S.P. Chengal Varaya Naidu v. Jagannath and Others, 1994 (1) SCC 1 and Ram Preet Yadav v. U.P. Board of High School and Intermediate Education, 2003 (8) SCC 311). Every Court or Tribunal has power to recall its order obtained by practising fraud. (See- United India Insurance Co. Ltd, v. Rajendra Singh, AIR 2000 SC 1165 and Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., AIR 1996 SC 2592).

20.     The decision of the Supreme Court in Chief Conservatory of Forests, Government of A.P. v. Collector and Others, AIR 2003 SC 1805relied on by the appellants does not apply to the facts situation available in this case. The case before the Apex Court was a dispute between the Revenue and Forest Departments of the State of Andhra Pradesh The Chief Conservator of Forests filed a Writ Petition on behalf of the Forest Department against the Revenue Department without impleading the State of A.P. It was in those circumstances that the Apex Court made the observations relied on by the appellant and extracted in paragraph 9 supra. But in the present case before me the State of Kerala was already a party. However, the persons who were to safeguard the interests of the State remained quiescent imperilling the rights of the State and exposing the forest land to be plundered by vested interests. But for the timely intervention by a dutiful and committed DFO, 30 acres of reserve forest would have been converted into private ownership in blatant violation of the public trust doctrine as per which the State is the custodian and trustee of all gifts of nature.

21. Any action or litigative venture, like the one on hand, for the preservation or retrieval of the gifts of nature is, therefore, pro bono publico (for the public good). Technical rules like locus standi etc. cannot defeat such actions which are in the nature of public interest litigation geared to sustain or capture inalienable properties of which every member of the public is a beneficiary. Every citizen has, thus, the locus standi to bring the violations of the forest laws to the cognizance of the Courts even by means of lateral entry. The only exception is that such ventures should either be on behalf of the State or with the State on the array of parties so that the fruits of such litigations are reaped by the public at large. In cases of competing interests, it is for the Court to consider as to which of the agencies is really safeguarding the interests of the State. The DFO in this case was further armed with the "leave" of the lower Appellate Court and that was a valid passport on the strength of which he could enter the litigation arena and fight his case to a logical conclusion. The leave granted to the DFO by the lower Appellate Court to file the appeals before that Court treating him as a person aggrieved was not challenged either before that Court or before this Court. This gave the DFO sufficient locus standi to file and maintain the appeals before the lower Appellate Court. When those who are entrusted with the duly of safeguarding the interests of the State by filing a written statement before the Trial Court and by filing appeals before the superior Court, have been guilty of gross dereliction of duty, the act of the DFO in upholding the interests of the State is to be appreciated and not blamed as the exploits of a meddlesome busybody. No question of law, much less, any substantial question of law arises for consideration in these Second Appeals. The questions of law formulated in the memoranda of Second Appeals are answered against the appellant. These Second Appeals are accordingly dismissed with costs throughout.

22. It is the culpable connivance, unpardonable collusion, furtive non-appearance, iniquitous lapse, rank dereliction of duty and betraying disloyalty of a Law Officer of the State at the lower level which produced (rather provoked) an outrageous response from Sri. Shripal, a district level forest officer to transgress all functional barriers and to personally undertake a litigative operation. In that adventure, he was destined to emerge victorious because he had the unflinching and unquenchable fire of public interest to justify him. Sri. Patric Gomez who succeeded Sri. Shripal also kept up the heat and tempo in the unrelenting fight for justice to the jungle. If every public servant showed such probity, commitment and dedication as was shown by these Divisional Forest Officers, our arboreal wealth would have remained virgin and insulated from the onslaughts of avaricious forest brigands. The then District Government Pleader Sri. M. Rajagopalan Nair who filed the belated appeals along with the necessary petitions also deserve to be complemented for the zeal and integrity shown by him. Above all, the District Judge Sri. D. Pappachan who sensibly and sensitively responded to the appeals filed by the DFO has won the boundless approbation of this Court.

I also place on record my appreciation for the scintillating arguments advanced by Sr. Advocate Sri. Rajan Joseph and the young and energetic Addl. Advocate General Sri. Ranjith Thampan.

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