Kerala High Court · 2009

R.S.A. Nos. 1028 of 2006and 274 of 2007-:2:-belonged to the plaintiff's deceased mother Kunjikamakshi as perExt.A1 settlement deed dated 1-7-1118 M.E. corresponding to theyear 1943. Subsequently Kunjikamakshi died on 4-12-1120 M.E..On her death the plaint schedule property devolved on the plaintiffand his brothers and sisters who are defendants 1 to 6. Theplaintiff and defendants 1 to 6 have thus become co-owners of theproperty. Even though the plaintiff and defendants 1 to 6 arehaving equal rights over the property, as per an oral agreementbetween them the plaintiff is entitled to get half of the plaintschedule property. The 7th defendant Lakshmanan VaidhyanKrishnan is a person who has planted medicinal plants in the plaintschedule property with the permission of the parents of the plaintiff.Hence he is also made a formal party to the suit. In casedefendants 1 to 7 succeed in getting some favourable orders fromthe Government it may not be possible for the plaintiff to geteffective relief in the suit. As the plaintiff is not seeking anypermanent relief against the 8th defendant State of Kerala and sincetime was not sufficient for issuing notice to the Government theplaintiff has not sent a notice under Sec. 80 C. P.C. and has filed a R.S.A. Nos. 1028 of 2006and 274 of 2007-:3:-petition seeking exemption from notice. The other legal heirs areattempting to get assignment of the property from the Government.It has, therefore, become necessary for the plaintiff to seekpartition and separate possession of his ½ share over the plaintschedule property. The plaintiff also seeks a temporary injunctionagainst the 8th defendant State of Kerala restraining the State fromtaking steps for assignment of the plaint schedule property to theother legal heirs. Hence the suit.POST INSTITUTIONAL DEVELOPMENTS4.Defendants 3, 5 and 6 remained ex-parte and did notenter appearance through counsel. The 7th defendant died and hislegal representatives were impleaded as additional defendants 9 to11. Eventhough defendants 1, 2 and 4 entered appearance throughAdv. Sri. A. Mahalchandra Babu, the 7th defendant throughAdvocate Sri. S.V. Premakumaran Nair, 8th defendant State of Keralathrough the Government Pleader Adv. Sri. K.R. Nandakumar,Addl. defendants 9 to 11 through Advocate Smt. S. Indira Bai andAdditional 12th and 13th defendants through Adv. Sri. S. V.Premakumaran Nair, all of them subsequently remained ex parte R.S.A. Nos. 1028 of 2006and 274 of 2007-:4:-without filing a written statement.THE EX PARTE DECREES5.On 14-12-1988 the learned Sub Judge after markingExt.A1 settlement deed dated 1-7-1118 M.E. through the plaintiffwho filed an affidavit, passed a preliminary as prayed for on theview that the plaint averments stood proved by affidavit and Ext.A1.6.I.A. 790 of 1989 was an application filed by the plaintifffor the passing of a final decree. Eight years thereafter, the trialcourt 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 I.A.No. 3783/1994 under Order IX R. 13 C.P.C. to set aside the ex-parte preliminary decree. The said application filed through theAddl. Government Pleader Sri. M.M. Hussain was dismissed on 25-3-1996. Nearly three years thereafter one Sri. Shripal, the thenDivisional Forest Officer (D.F.O for short) , Thiruvananthapuram,filed C.M.A. No. 117 of 1999 before the District Court,Thiruvananthapuram, through Adv. Sri. M. Rajagopalan Nair, theDistrict Government Pleader, Thiruvananthapuram, against the order R.S.A. Nos. 1028 of 2006and 274 of 2007-:5:-passed by the trial court on I.A. No. 3783/1984 dismissing thepetition filed by the State under Order IX Rule 13 C.P.C. In themeanwhile on 28-10-1997 the trial court had passed a final decreeallotting 14.87 acres of land to the plaintiff and awarding a sumof Rs. 2248.50 towards the value of a share with a charge on theplot allotted to the defendants. A.S. Nos. 252 and 253 of 1999were two appeals preferred by Sri.Shripal, the D.F.O.,Thiruvananthapuram against the preliminary decree and final decreerespectively passed by the trial court. The C.M.A. referred toabove as well as the two appeals filed by the D.F.O. were belatedappeals. I.A. 1980 of 1999 in C.M.A. 117 of 1999, I.A. 1983 of1999 in A.S. 252 of 1999 and I.A. No. 1978 of 1999 in A.S. No. 253of 1999 were applications filed by the D.F.O. for condoning thedelay in filing the three appeals. Eventhough the plaintiff anddefendants 2 to 6 opposed the applications for condoning the delaythe learned District Judge as per common Order dated 9-1-2001allowed the applications for condoning the delay in filing theappeals. C.R.P. Nos. 1347 , 1388 and 1438 of 2001 were filedbefore this Court challenging the common order passed by the R.S.A. Nos. 1028 of 2006and 274 of 2007-:6:-District Judge allowing the petitions to condone the delay. ThoseC.R.Ps were dismissed by this Court on 17-1-2006. The D.F.O. hadalso sought leave of the lower appellate court to file the aboveappeals as he was not a party before the trial court. I.A. No. 1981of 1999 was the leave application filed in A.S. No. 252 of 1999and I.A. No.1976 of 1999 was the leave application filed in A.S. No.253 of 1999. The said petitions were also allowed by the lowerappellate court. Subsequently as per common judgment dated 27-5-2006 the lower appellate court allowed the appeals filed by theD.F.O. against the preliminary and final decrees and dismissed thesuit after holding that the plaint schedule property which was areserve forest could not have been the subject matter of a suit forpartition and that the judgments and decrees passed by the trialcourt were obtained by fraud and collusion. C.M.A. 117 of 1979was dismissed by the lower appellate court as unnecessary in viewof the decision taken on the main appeals against the ex partedecrees. Hence, these Second Appeals.THE QUESTIONS OF LAW IN SECOND APPEALS8.The common questions of law formulated in the R.S.A. Nos. 1028 of 2006and 274 of 2007-:7:-memmoranda of Second Appeals are the following:-i) Whether the Ist respondent Divisional Forest Officer isentitled to file appeal against the decree of the court belowin view of the provisions contained in Section 79 C.P.C.and Article 300 of the Constitution of India?ii)Whether the Ist respondent Divisional Forest Officeris entitled to file appeal against the decree of the courtbelow when the 8th respondent State of Kerala is alreadyin the party array and the decree as against the State hasachieved finality ?9.I heard Sr. Advocate Sri. Rajan Joseph, the learnedcounsel appearing for the common appellant and the learned Addl.Advocate General Sri. Ranjith Thampan appearing for the State ofKerala.STAND OF THE PLAINTIFF/COMMON APPELLANT10.Sr. Advocate Sri.Rajan Joseph appearing for theappellant/plaintiff made the following submissions before me insupport of these appeals:- This was a case in which the State of Kerala was not anecessary or proper party. The State was impleaded as the 8thdefendant only because some of the plaintiff's brothers had applied R.S.A. Nos. 1028 of 2006and 274 of 2007-:8:-to the State for pattayams and also for effecting mutation. No reliefof a permanent nature was claimed in the suit against the State.The plaintiff had only asked for a temporary injunction against theState restraining the State from issuing pattayams with regard toany portion of the plaint schedule property to any of the heirs of theplaintiff's parents. No written statement was filed by the State. On30-11-1988 the State was declared ex parte. On 14-12-1988 apreliminary decree for partition was passed as prayed for. Theplaintiff had thereafter filed I.A. 790 of 1989 for the passing of afinal decree. A commission was issued by the final decree court.I.A. No. 3783 of 1994 was filed by the State represented by theChief Secretary under Order IX Rule 13 C.P.C. to set aside the exparte preliminary decree. On 25-3-1996 the said application wasdismissed by the trial court. The said order has become final.Subsequently on 28-10-1997 a final decree was passed allottingplot HLMNOPI admeasuring 14.87 acres to the plaintiff and plotABCDEFGHIJK to the other sharers namely defendants 1 to 6 jointly.C.M.A. No. 117 of 1999 was an appeal filed by the D.F.O.,Thiruvananthapuram before the District Court, Thiruvananthapuram R.S.A. Nos. 1028 of 2006and 274 of 2007-:9:-challenging the order passed by the trial court on I.A. 3783 of1994. Similarly, the D.F.O. also filed separate appeals against thepreliminary and final decrees as A.S. Nos. 252 and 253 of 1999before the District Court, Thiruvananthapuram. All the threeappeals were filed with petitions to condone the inordinate delay.Eventhough the appellant/plaintiff opposed the delay petitions, thesame were allowed by the District Judge. Subsequently as per theimpugned common judgment dated 27-5-2006 the learned DistrictJudge allowed both A.S. Nos. 252 and 253 of 1999 and dismissedthe suit filed by the appellant. C.M.A. No. 117 of 1999 wasdismissed as unnecessary. The appellant/plaintiff had questionedthe maintainability of the appeals filed by the D.F.O. who was not aparty before the trial court. Merely because the lower appellatecourt had granted leave to the D.F.O. for filing the appeals, it doesnot alter the position. The D.F.O. Is not a person aggrieved by thedecrees. The State who was the 8th defendant in the suit willcontinue to be the party aggrieved by the decrees. When the Statehad unsuccessfully challenged the ex parte preliminary decree byfiling I.A. 3783 of 1994 under Order IX Rule 13 C.P.C., it was not R.S.A. Nos. 1028 of 2006and 274 of 2007-:10:-open to the D.F.O. to allege fraud or collusion on the part of theGovernment Pleader in not filing a written statement or appealsagainst the preliminary and final decrees. When an ex parte decreeis passed against the defendant in a suit, such defendant has twoclear options, - one to file an appeal under Sec. 96 C.P.C. andanother, to file an application under Order IX Rule 13 C.P.C. forsetting aside the ex parte decree. In a case where the applicationunder Order IX Rule 13 C.P.C. Is dismissed the doctrine of “issueestoppel” and “cause of action estoppel” would get attracted and itmay not be permissible for the defendant thereafter to file anappeal and raise the very same contentions in the appeal. Hisremedy in such a case would only be to file an appeal under OrderXLIII Rule 1 C.P.C. challenging the dismissal of the petition filedunder Order IX Rule 13 C.P.C. (Vide Bhanu Kumar Jain v. ArchanaKumar and another - AIR 2005 SC 626). In the case on hand, theState did file an application as I.A. 3783/1994 under Order IX R. 13C.P.C. and the same was dismissed on 25-3-1996. The saiddismissal has become final. No appeal has been filed by the Stateunder Order XLIII Rule 1 C.P.C. challenging the dismissal of I.A. R.S.A. Nos. 1028 of 2006and 274 of 2007-:11:-3783 of 1994. Similarly, the State has not filed any appeal eitheragainst the preliminary decree passed on 14-12-1988 or againstthe final decree passed on 28-10-1997. Even if the State were tofile an appeal against the final decree, Sec. 97 C.P.C. wouldpreclude the State from filing such an appeal since no appeal hadbeen filed by the State against the preliminary decree. When theState alone which was a party defendant before the trial court couldhave filed appeals against the decrees passed by the trial court, itwas the D.F.O who filed the appeals. The view taken by the lowerappellate court to hold that the appeals filed by the D.F.O weremaintainable is opposed to Sec. 79 C.P.C. as well as Article 300 ofthe Constitution of India. In a case arising from Andhra Pradesh,the Supreme Court had occasion to consider the maintainability ofa Writ Petition filed by the Conservator of Forests challenging anorder passed by the District Collector in favour of certain pattadars.In Chief Conservator of Forests, Govt. of A.P. v. Collector andOthers - AIR 2003 SC 1805 the Apex Court observed as follows:-“6. Mr.P.P. Rao, learned counsel appearing for thepattedars-respondents in Civil Appeal No. 8580 of 1994and Mr. Harish N. Salve, learned Senior Counsel R.S.A. Nos. 1028 of 2006and 274 of 2007-:12:-appearing for the Pattedars-respondents in Civil AppealNo. 9097 of 1995, raised a preliminary objection as tothe maintainability of the writ petition filed by the ChiefConservator of Forest as well as the appeal arisingtherefrom. Article 300 of the Constitution of India, it iscontended, provides that the Government of a Statemay sue or be sued in the name of the State; Section79 of the Code of Civil Procedure, 1908 directs that theState shall be the authority to be named as plaintiff ordefendant in a suit by or against the Government and S.80 thereof directs notice to the Secretary to that Stateor the Collector of the District before the institution ofthe suit; and Rule 1 of Order 27 lays down as to whoshould sign the pleadings. No individual officer of theGovernment under the scheme of the Constitution orthe Code of Civil Procedure can file a suit or initiate anyproceeding 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, hasargued that before filing the appeal, the ChiefConservator of Forest had obtained orders and,therefore, the writ petition and the appeal should bedeemed to be filed by the Government of AndhraPradesh; not naming the Government of Andhra Pradeshin the writ petition as the petitioner or in the appeal asthe appellant is only a procedural matter and,therefore, it is not fatal to the maintainability of thewrit petition and the appeal.7.To appreciate the contention of the learnedsenior counsel, it will be useful to refer to the relevantprovisions of the Constitution of India (for short, “theConstitution) and the Code of Civil Procedure, 1908 (forshort, “the C.P.C.), Article 300 of the Constitution fallsin Chapter III, which deals with property, contract,rights, liabilities, obligations and suits. Article 300reads as follows: R.S.A. Nos. 1028 of 2006and 274 of 2007-:13:-“300. Suits and proceedings – (1) The Governmentof India may sue or be sued by the name of the Unionof India and the Government of a State may sue or besued by the name of the State and may, subject to anyprovisions which may be made by Act of Parliament orof the Legislature of such State enacted by virtue ofpowers conferred by this Constitution, sue or be sued inrelation to their respective affairs in the like cases as theDominion of India and the corresponding provinces orthe corresponding Indian States might have sued orbeen sued if this Constitution had not been enacted.(2)If at the commencement of thisConstitution -(a)any legal proceedings are pending to which theDominion of India is a party, the Union of India shallbe deemed to be substituted for the Dominion inthose proceedings; and (b)any legal proceedings are pending to which aprovince or an Indian State is a party, thecorresponding State shall be deemed to besubstituted for the Province or the Indian State inthose proceedings”.8. From a perusal of the provision, extractedabove, it is evident that the Government of India asalso the Government State may sue or be sued bythe name of the Union of India or by the name of theState respectively, subject, of course, to anyprovisions which may be made by Act of Parliamentor of Legislature of such State by virtue of powersconferred by the Constitution. 9. Section 79 of the C.P.C. deals with suitsby or against the Government . It reads thus: R.S.A. Nos. 1028 of 2006and 274 of 2007-:14:-“79. Suits by or against Government – In a suitby or against the Government, the authority to benamed as plaintiff or defendant, as the case may beshall be -(a)In the case of a suit by or against theCentral Government, the Union of India; and (b)in the case of a suit by or against a Stategovernment, the State A plain reading of S. 79 shows that in a suit byor against the Government, the authority to benamed as plaintiff or defendant, as the case may be,in the case of the Central Government, the Union ofIndia and in the case of the State Government, theState, 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 byofficers in their official capacity. Rule 1 of Order 27,C.P.C. says that in any suit by or against theGovernment, the plaint or the written statement shallbe signed by such person as the Government may bygeneral or special order appoint in that behalf andshall be verified by any person whom theGovernment may so appoint.11.It needs to be noted here that a legalentity – a natural person or an artificial person – cansue or be sued in his/its own name in a court of lawor a Tribunal. It is not merely a procedural formalitybut is essentially a matter of substance andconsiderable significance, That is why there arespecial provisions in the Constitution and the Codeof Civil Procedure as to how the Central Governmentor the Government of a State may sue or be sued.So also there are special provisions in regard to R.S.A. Nos. 1028 of 2006and 274 of 2007-:15:-other juristic persons specifying as to how they cansue or be sued. In giving description of a party it willbe useful to remember the distinction between misdescription or misnomer of a party and misjoinder ornon-joiner of a party suing or being sued. In thecase of mis description of a party, the court may atany stage of the suit/proceedings permit correctionof the cause title so that party before the Court iscorrectly described.; however, a mis description of aparty will not be fatal to the maintainability of thesuit/proceedings. Though Rule 9 of Order 1 ofC.P.C. mandates that no suit shall be defeated byreason of the misjoinder or non-joinder of parties, itis important to notice that the proviso theretoclarifies that nothing in that Rule shall apply tonon-joinder of a necessary party . Therefore, caremust be taken to ensure that the necessary party isbefore the Court, be it a plaintiff or a defendant,otherwise, the suit or the proceedings will have tofail. Rule 10 of Order 1, C.P.C. Provides remedywhen a suit is filed in the name of wrong plaintiffand empowers the Court to strike out any partyimproperly joined or to implead a necessary partyat any stage of the proceedings.12.The question that needs to be addressedis, whether the Chief Conservator of Forest as thepetitioner/appellant in the writ petition/appeal is amere mis description for the State of AndhraPradesh or whether it is a case of non-joinder of theState of Andhra Pradesh – a necessary party, in a lisdealing with the property of a State. There can beno dispute that the State is the necessary party andshould be impleaded as provided in Article 300 ofthe Constitution and S. 79 of C.P.C. Viz., in the nameof the State/Union of India, as the case may be, lestthe suit will be bad for non-joinder of the necessary R.S.A. Nos. 1028 of 2006and 274 of 2007-:16:-party. Even post in the hierarchy of the posts in theGovernment set up, from the lowest to the highest, isnot recognised as a juristic person nor can the Statebe treated as represented when a suit/proceedingis in the name of such offices/posts or the officersholding such posts, therefore, in the absence of theState in the array of parties, the cause will bedefeated for non-joinder of a necessary party to thelis, in any court or Tribunal. We make it clear thatthis principle does not apply to a case where anofficial of the Government acts as a statutoryauthority and sues or pursues further proceeding inits name because in that event, it will not be as suitor proceeding for or on behalf of a State/Union ofIndia but by the statutory authority as such”. Merely because the lower appellate court granted leaveto the D.F.O. for filing the appeals, the same does not cloth theD.F.O. with the authority to assail the decrees. If at all anybody isaggrieved, it is the State. The State had not even filed a writtenstatement in the suit. It is true that the suit property is Governmentland. But then, the parties were only dividing their possessoryright over the suit property and the State was not a necessary partyin such a suit. The fraud and collusion alleged by the D.F.O. havenot been substantiated. The earlier suit filed by the plaintiff's fatherMadhavan Anirudhan as O.S. 35 of 1965 was a suit for injunctionregarding the properties partly comprised in re-survey 6 and other R.S.A. Nos. 1028 of 2006and 274 of 2007-:17:-survey numbers. The present suit property was not included in thesaid litigation. This Court in S.A. 1132 of 1969 arising out of thesaid earlier litigation had only declared the possessory title of theplaintiff therein. Even if the suit property is a forest land, it was inthe possession of the plaintiff's father Anirudhan long prior to1/1/1977 and therefore protected by the Kerala Land AssignmentRegularisation of Occupations of Forest Lands prior to 1-1-1977)Special Rules, 1993. The lower appellate court was thus wrongin entertaining the appeals, much less, allowing the appeals filed atthe instance of the D.F.O. in his official capacity and not on behalfof the State. JUDICIAL RESOLUTION11.I am afraid that I cannot agree with the submissionsmade on behalf of the appellant/plaintiff . The fact that the plaintschedule property admeasuring 30 acres of land comprised in Re-survey 6 of Vithura Village (formerly Arianad Village) inNadumangad Taluk is a reserve forest does not admit of anydoubt. The suit property falls under the Palode Forest Range. Itwas with regard to this property that the plaintiff sought a R.S.A. Nos. 1028 of 2006and 274 of 2007-:18:-preliminary decree for partition as against his brothers and sisterswho are defendants 1 to 6. There is no subsisting dispute that withregard to properties including the present plaint schedule propertythere was an earlier litigation as O.S. No. 35 of 1965 before theAddl. Sub Court, Thiruvananthapuram filed by MadhavanAnirudhan, the father of the plaintiff and defendants 1 to 6. Inparagraph 12 of the impugned common judgment the learnedDistrict Judge has observed that it was conceded before him bythe counsel appearing for the plaintiff and defendants 1 to 6 thatthe property which was the subject matter of the earlier litigationwas the very same property. The above observation has not beentaken exception to in the memoranda of Second appeal. Hence, thesaid observation is to be treated as final and conclusive. Thesaid earlier suit was one for declaration of the title and possessionof the plaintiff therein and for a perpetual injunction restraining theState of Kerala and the Forest Range Officer, Palode fromtrespassing upon the plaint schedule properties and reducing thesame to their possession or in any manner disturbing the peacefulpossession of the plaintiff over the said properties. Items 1 to 3 R.S.A. Nos. 1028 of 2006and 274 of 2007-:19:-of the plaint schedule properties in O.S. No. 35 of 1965 werecomprised in re-survey Nos. 3032, 3033, 3034 and 3183 of whichthe lands comprised in re-survey Nos. 3032, 3033 and 3034 wereregistered holdings, and the land comprised in re-survey 3183 wastharisu land. Plaint schedule item No.4 therein was the presentsuit property admeasuring 30 acres comprised in Re-survey 6 ofArianad Village. A Commission was taken out in that suit. The saidsuit was partly decreed on 30-10-1968 by the Sub Court holdingthat the plaintiff, Madhavan Anirudhan was in possession of only13.34 acres. The suit was dismissed with regard to the rest of thesuit properties inlcuding 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 decreepassed by the trial court with regard to 13.34 acres. In the saidappeal, the District Court had issued a fresh commission. Based onthe additional evidence and the other evidence in the case, theDistrict Court as per judgment and decree dated 6-8-1969 allowedthe appeal filed by the State. Aggrieved by the decree passed by R.S.A. Nos. 1028 of 2006and 274 of 2007-:20:-the District Court, Madhavan Anirudhan, the plaintiff, in that suitfiled S.A. No. 1132 of 1969 before this Court. As per judgmentdated 22-6-1970 this Court , partly allowing the Second Appealdeclared the possessory title of Anirudhan over the Puthuvalnilam admeasuring 3.32 acres shown as two green shaded plots inExt. C2 plan and 1.12. acres of Puthuval manpuram shown as thelight brown shaded plot in Ext.C2 plan in addition to theregistered holdings in re-survey Nos. 3032, 3033 and 3034 and thetharisu land comprised in re-survey No. 3183 altogether having anextent of 9.34 acres. The suit was dismissed with regard to therest of the properties which include 30 acres of land comprised inre-survey No. 6. In the course of the judgment, V.R. KrishnaIyer , J. has observed as follows:“Possession by itself is a substantiative right recognisedby law with some legal incidents attached to it. Thisinterest is referred to as possessory title as distinctfrom proprietary title. But can such a possessory titleavail against the true owner ? This question has been R.S.A. Nos. 1028 of 2006and 274 of 2007-:21:-answered in 1964 KLT 458 by Mr. Justice RamanNayar who held that a person in possession withouttitle is entitled to remain in possession even as againstthe lawful owner until evicted in due course of lawand is, therefore, entitled to get an order of injunctionrestraining the true owner from disturbing hisposition. Since this proposition put forward by theappellant's counsel has not been challenged by therespondent I am adopting it as good law, althoughthere may be some doubt as to the efficacy ofpossessory title against the original owner”.12.As noted earlier the suit O.S. No. 35 of 1965 wasdismissed with regard to the plaint schedule item No. 4 thereinwhich was 30 acres of land comprised in Re-survey 6 of ArianaduVillage (Present Vithura Village). It is with regard to the very sameproperty that the plaintiff who is none other than the son ofAnirudhan (who was the plaintiff in O.S. 35 of 1965) instituted thepresent suit. O.S. No. 35 of 1965 was instituted by Anirudhan onthe strength of a power-of-attorney dated 3-7-1118 M.E. executedby his late wife Kunji Kamakshi and the allegation was that the R.S.A. Nos. 1028 of 2006and 274 of 2007-:22:-Forest Range Officer, Palode and the forest officials under him hadattempted to take forcible possession of the properties. In O.S. 35of 1965 Madhavan Anirudhan was relying upon the very samesettlement of 1118 M.E. (Ext.A1 in the present suit) in favour of hiswife Kunji Kamakshi. It was in the judgment dated 22-6-1970 inS.A. 1132 of 1969 arising out of O.S. 35 of 1965 that this Courtdismissed the suit with regard to the entire suit property excluding9.34 acres. When O.S. 35 of 1965 filed by the present plaintiff'sfather Madhavan Anirudhan with regard to the 30 acres of forestland comprised in Re-survey 6 of Aryanadu Village was dismissedholding that it was a forest land not in the possession of MadhavanAnirudhan, the present suit filed by Madhavan Anirudhan's son forpartition of the possessory rights of the very same 30 acres offorest land was not maintainable, besides being misconceived.Section 11 C.P.C. squarely applied attracting the bar of res judicatato the present suit. What is required to be proved or established toheld that there is bar of res judicata for the subsequent suit isthat in both the suits, the title of the parties agitated in identical,but not the identity of the actual properties involved in the two R.S.A. Nos. 1028 of 2006and 274 of 2007-:23:-litigations. (See Khalid v. Suleikha – AIR 1986 Kerala 251 = 1986KLT 1113 (F.B.).13.Eventhough the State of Kerala was impleaded as the 8thdefendant by alleging in the plaint that no permanent relief wassought against the State, the relief which was claimed against theState was a temporary injunction restraining the State and itsofficials from assigning any portion of the plaint schedule propertyto any of the other defendants who are the brothers and sisters ofthe plaintiff. Since the State of Kerala and the Forest RangeOfficer, Palode were defendants in O.S. 35 of 1965 it was quiet easyfor the Government Pleader in-charge of the case to find out thatthe present suit was pertaining to the very same forest land whichwas the subject matter of O.S. 35 of 1965, if he had taken somepains to verify this fact through the forest officials. Apart from thefact that no counter or written statement was filed by the State, itchose to remain ex parte. The Government Pleader in-charge of thecase was permitting a reserve forest to be partitioned between thelegal heirs of a person who claimed to be an encroacher inpossession of such forest land and lost the legal battle in that R.S.A. Nos. 1028 of 2006and 274 of 2007-:24:-behalf. A perusal of the averments in the plaint in the present suitand a careful survey of the progression of the suit will easily revealthat the dispute put forward by the plaintiff between his ownbrothers and sisters was only a paper fight evidently projectedwith a view to get the imprimature of the Court so as to sanctifyhis assertion even as against the State that he and his brothers andsisters were in joint possession of 30 acres of reserve forest whichis a prime tract located within the Palode Forest Range inNedumangad Taluk. Even with regard to the registered holdingsand the manpuram Puduval comprised in Re-survey Nos. 3183,3034, 3033 and 3032 over which this court declared the possessoryright of the plaintiff therein, Justice Krishna Iyer observed asfollows:“Of course, this will not preclude the State fromtaking action according to law to recover possessionfrom the plaintiff nor will it in any manner prejudicethe prayer of the plaintiff for getting assignment ofthose lands from the State on the basis that he hasbeen in possession, if this circumstance may betreated as a preferential claim”. R.S.A. Nos. 1028 of 2006and 274 of 2007-:25:-The above observation as well as the passage extracted inparagraph 11 above are in recognition of the wholesome principlethat no injunction can be maintained against the true owner. (SeePremji Ratansey Shah and Others v. Union of India and Others -1994 (5) SCC 547, Mahadeo Savlaram Shelke and Others v. PuneMunicipal Corporation and Another - 1995 (3) SCC 33, Tamil NaduHousing Board v. A. Viswam - 1996 (8) SCC 259 andHanumanthappa v. Muninarayanappa - 1996 (11) SCC 696).14.Instead of guarding the reserve forest admeasuring 30acres the litigation agents of the State were presumably colludingwith the plaintiff and conniving at the attempted encroachment ofthe Forest Land. It is now beyond any controversy that the 30 acresof suit property is a forest land forming part of the reserve forestwithin the Palode Forest Range in Nedumangad Taluk ofThiruvananthapuram District. Even before the coming into force ofthe Forest (Conservation) Act, 1980, forest lands in the State werenot liable to be used for non-forest purpose. Article 48 A of theConstitution of India occurring in Part IV dealing with DirectivePrinciples of State Policy reads as follows:- R.S.A. Nos. 1028 of 2006and 274 of 2007-:26:-48A: Protection and improvement of environment andsafeguarding of forests and wild Life - The State shallendeavour to protect and improve the environment and tosafeguard the forests and Wild life of the country “. Likewise, it has been made a fundamental duty of every citizen ofIndia to protect and improve the forest and other natural resources.Article 51 A (g) dealing with the Fundamental Duties of citizens inPart IV A of the Constitution of India reads as follows:-“ 51A . Fundamental duties - it shall be the duty of everycitizen of India - (g) to protect and improve the natural environmentincluding forests, lakes, rivers and wild life, and to havecompassion 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 388 it has been observedas follows:-“The notion that the public has a right to expect certain landsand natural areas to retain their natural characteristic isfinding its way into the law of the land. The ancient RomanEmpire developed a legal theory known as the “Doctrine ofthe Public Trust”. The Public Trust Doctrine primarily restson the principle that certain resources like air, sea, waters R.S.A. Nos. 1028 of 2006and 274 of 2007-:27:-and the forests have such a great importance to the people asa whole that it would be wholly unjustified to make them asubject of private ownership. The said resources being a giftof nature, they should be made freely available to everyoneirrespective of the status in life. The doctrine enjoins uponthe Government to protect the resources for the enjoyment ofthe general public rather than to permit their use for privateownership or commercial purposes. Though the public trustdoctrine under the English common law extended only tocertain traditional uses such as navigation, commerce andfishing, the American Courts in recent cases expanded theconcept of the public trust doctrine. The observations of theSupreme Court of California in Mono Lake case clearly showthe judicial concern in protecting all ecologically importantlands, for example fresh water, wetlands or riparian forests.The observations therein to the effect that the protection ofecological values is among the purposes of public trust, maygive rise to an argument that the ecology and theenvironment protection is a relevant factor to determinewhich lands, waters or airs are protected by the public trustdoctrine. The Courts in United States are finally beginning toadopt this reasoning and are expanding the public trustdoctrine should not be expanded to include all ecosystemsoperating in our natural resources. Our legal system – basedon English common law – includes the public trust doctrineas part of its jurisprudence. The State is the trustee of allnatural resources which are by nature meant for public useand enjoyment. Public at large is the beneficiary of the sea- R.S.A. Nos. 1028 of 2006and 274 of 2007-:28:-shore, running waters, airs, forests and ecologically fragilelands. The State as a trustee is under a legal duty to protectthe natural resources. There resources meant for public usecannot be converted into private ownership. Thus the PublicTrust 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 aremeant for public use and enjoyment. Those resources cannot beconverted into private ownership or enjoyment. When by theextension of the doctrine of public trust, the State which is thetrustee of all natural resources including forests is under anobligation to protect those resources and ensure that they are madeavailable for public use and are not permitted to be brought underprivate ownership or for commercial ventures, it was notpermissible for the State or its agencies including those in-chargeof the State litigation to permit the suit property to be encroachedupon or possessed by private persons like the plaintiff and hisbrothers and sisters. This was an obligation upon the State evenbefore the coming into force of the Forest (Conservation) Act,1980. R.S.A. Nos. 1028 of 2006and 274 of 2007-:29:-15. Section. 66 of the Kerala Forest Act , 1961 reads asfollows:“66. Power to prevent commission of offence :- EveryForest Officer and Police Officer shall prevent , and mayinterfere for the purpose of preventing the commission of anyforest offence and shall have power to evict all encroachersand squatters from Reserved Forests or other lands under thecontrol of the Forest Department and to confiscate or demolishany sheds or other structures put up in such lands. ForestOfficers shall have the powers of the Police Officers for thepurposes of investigation or prevention of forest offences andthe collection of evidence”.Thus, every forest officer has a statutory duty to eject allencroachers from reserve or other lands under the control of theForest 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 proclaimedoffender of the Constitution of India; for, after theamendment of the Constitution in 1976, protection of theforest is a constitutional obligation of the State” .Sec. 22 of the Kerala Forest Act, 1961 is also pertinent in thisconnection. The said Section reads as follows:- R.S.A. Nos. 1028 of 2006and 274 of 2007-:30:-“22. No right acquired over Reserved Forests except as hereinprovided – No right of any description shall be acquired in orover a Reserved Forest except under a grant or contract inwriting made by or on behalf of the Government or by or onbehalf of some person in whom such right or the power tocreate such right was vested when the notification under Sec.19 was published or by succession from such person:Provided that no patta shall, without the previous sanctionof the Government, be granted for any land included within aReserved Forest and every patta granted without such sanctionshall be null and void ”.Thus, encroachers or trespassers of Government forest land cannotclaim any protection or a right to continue in possession thereof. Alearned Single Judge (P. Krishnamoorthy, J) of this court in ChiefSecretary and Others v. Ayllumpilla Mohammed (Judgment dated21-6-1990 in S.A. 7 of 1985) held that G.O.(P) 289/68/Agri (ForestEstt. ) dated 7-6-1968 produced as Ext.A3 in that case entitlingencroachers of forest lands prior to 1-1-1968 to continue inpossession does not have any statutory force and it wascontrary to the provisions of the Kerala Forest Act, 1961. To thesame effect is the judgment of another learned Single Judge( T.L. Viswanatha Iyer, J.,) in Chacko Thomas v. State of Kerala R.S.A. Nos. 1028 of 2006and 274 of 2007-:31:-and Others (Judgment dated 22-11-1988 in O.P. No.10952/1987). Similarly, the very same learned Judge ( T.L.Viswanatha Iyer, J.,) in the judgment dated 18-2-1988 in O.P. No.11203 of 1985 (Kuriakose Chacko @ K.K. Chacko and Another v.State of Kerala and Others) rejected the contention of thepetitioners therein that they were entitled to continue in possessionand seek assignment on registry the forest lands which wereencroached upon prior to 1-1-1977 in view of the proclaimedpolicy of the State Government. In the Judgment dated 9-10-1997in O.P. No. 17128 of 1997, (Purushothaman and Others v. State ofKerala and Others - Justice P.K. Balasubrahmonian held that riverpurambokes are needed for the protection of the rivers and tomaintain the ecological balance and also to keep the environmentclean and therefore it was not proper for the State and its officersto assign away river purambokes or permit trespassers to encroachupon such purambokes.16.The proposition of law discernible from PackiyamAmmal v. Pattu Ammal – AIR 1999 Madras 383, Philip and Othersv. Scaria and Others – 1987 (1) KLT 213, VavvaKkavu Muslim R.S.A. Nos. 1028 of 2006and 274 of 2007-:32:-Thaikkavu Palli v. Narayanan Purushan – 1991 (2) KLT 477 andAppukkuttan Chettar v. Lathika Devi Amma – 2005 (1) KLT 260that in suits for partition, injunction and recovery of possession asbetween private persons claiming possessory rights in respect oflands of which the Government is the paramount title holder, theState need not be made a party, cannot obviously apply toGovernment reserve forests and river purambokkes which arecovered by the public trust doctrine and which play a vital role inmaintaining the ecological balance of our environment. 17.In view of the above legal position the State or itsagencies and instrumentalities cannot shirk their duty of preservingand protecting forest . Instead of discharging their moral, legal andconstitutional obligation of saving 30 acres of reserve forest fromprivate infiltration and transgression, the law officers in-charge ofthe case were acting in collusion with the law - breakers andthereby betraying the confidence reposed in them by the State.Had it been brought to the notice of the trial court that the suitproperty is a substantial portion of a reserved forest, the trial courtwould not have passed a preliminary decree for partition , much R.S.A. Nos. 1028 of 2006and 274 of 2007-:33:-less, pass a subsequent final decree. Before the trial court theGovernment pleader in-charge of the case was one K.R.Nandakumar. No doubt, an application was filed as I.A. No. 3783of 1997 before the trial court by Addl. Government Pleader Sri. M.M.Hussain seeking to set aside the ex parte preliminary decreepassed on 14-12-1988. But the said application was filed after sixyears of the preliminary decree and the trial court did not accept thecontention of the Forest Range Officer that he came to know of thesuit only on 1-11-1992 when the Advocate Commissioner visitedthe suit property. Accordingly, as per Order dated 25-3-1996 thetrial court dismissed the application holding inter alia that theapplicant failed to show sufficient cause for his non-appearanceon 30-11-1998 on which date the 8th defendant State of Kerala wasset ex parte. It was also held that even if the ex parte decreewas obtained by the plaintiff fraudulently without disclosing theearlier suit filed as O.S. No. 35 of 1965, the same cannot be setaside in a proceedings under Order 9 R. 13 C.P.C. The matter wasleft there since at that level, Sri. Hussain could not possibly doanything else except to recommend a further challenge at the R.S.A. Nos. 1028 of 2006and 274 of 2007-:34:-District Court level. It was five years thereafter that anenterprising Divisional Forest Officer by name Shripalnoticing that 30 acres of reserve forest had been allowed to bepartitioned between the members of a family rushed to the DistrictCourt, Thiruvananthapuram and sought leave to file appealsagainst the order dated 25-3-1996 passed by the trial courtdismissing I.A. 3783 of 1994 which was filed under Order IX Rule13 C.P.C. The D.F.O. also sought leave to file separate appealsagainst the preliminary and final decrees passed in the case. Leavewas granted by the District Judge. Accordingly, C.M.A. No. 117and A.S. Nos. 252 and 253 of 1999 were filed by the D.F.O. whoalso filed I.A. Nos. 1980, 1983 and 1978 of 1979 respectively forcondoning the delay in filing those appeals. Eventhough theapplications to condone the delay were opposed as per commonorder dated 9-1-2001 the learned District Judge allowed theapplications and condoned the delay. Thereafter, as per theimpugned common judgment dated 27-5-2006 the learnedDistrict Judge, has allowed A.S. Nos. 252 and 253 of 1999 and hasset aside the preliminary and final decrees and has dismissed the R.S.A. Nos. 1028 of 2006and 274 of 2007-:35:-suit. C.M.A. 117 of 1999 was dismissed as unnecessary. In thecourse of the judgment the learned District Judge (Sri. D.Pappachan) has observed that the present suit was filedsuppressing the institution of the earlier suit O.S. 35 of 1965 andthe final verdict passed by this court. The learned District Judgehas also observed that the plaintiff has been guilty of misleadingthe court by putting forward inconsistent contentions and that theex parte preliminary decree obtained from the trial court was bypracticing fraud and collusion. 18. It is relevant to note in this context that in a petitionunder Order IX Rule 13 C.P.C. challenging an ex parte decree or ina further appeal therefrom under Order XLIII Rule 1(d) C.P.C. , thecontroversy is ordinarily restricted to the sufficiency or otherwisethe cause put forward for not appearing before the Court when thesuit was called on for hearing. But in a regular appeal under Section96 read with Order XLI Rule 1 C.P.C. against the ex-parte decree,it is open to the defendant who was set ex parte before the trialCourt to contend before the appellate Court that even if he was exparte, the trial Court should not have passed the impugned ex parte R.S.A. Nos. 1028 of 2006and 274 of 2007-:36:-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 isvitiated and cannot have any efficacy whatsoever. A person whoby fraudulent means attempts to obtain a verdict in his favour canbe summarily thrown out at any stage of the litigation. If ajudgment is procured by withholding vital documents in order togain an advantage over the opposite party, the person guilty ofsuppression would be playing a fraud on the court as well as onthe opposite party. A decree obtained by practicing fraud orcollusion is a nullity because fraud robs any instrument orjudgment 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 orderobtained by practicing 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 ChiefConservatory of Forests, Government of A.P. v. Collector and R.S.A. Nos. 1028 of 2006and 274 of 2007-:37:-Others - AIR 2003 SC 1805 relied on by the appellants does notapply to the facts situation available in this case. The case beforethe Apex Court was a dispute between the Revenue and ForestDepartments of the State of Andhra Pradesh The Chief Conservatorof Forests filed a Writ Petition on behalf of the Forest Departmentagainst the Revenue Department without impleading the State ofA.P. It was in those circumstances that the Apex Court made theobservations relied on by the appellant and extracted in paragraph9 supra. But in the present case before me the State of Kerala wasalready a party. However, the persons who were to safeguard theinterests of the State remained quiescent imperilling the rights ofthe State and exposing the forest land to be plundered by vestedinterests. But for the timely intervention by a dutiful andcommitted D.F.O., 30 acres of reserve forest would have beenconverted into private ownership in blatant violation of the publictrust doctrine as per which the State is the custodian and trusteeof 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, R.S.A. Nos. 1028 of 2006and 274 of 2007-:38:-pro bono pblico (for the public good). Technical rules like locusstandi etc. cannot defeat such actions which are in the nature ofpublic interest litigation geared to sustain or capture inalienableproperties of which every member of the public is a beneficiary.Every citizen has, thus, the locus standi to bring the violations ofthe forest laws to the cognizance of the Courts even by means oflateral entry. The only exception is that such ventures should eitherbe on behalf of the State or with the State on the array of parties sothat 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 towhich of the agencies is really safeguarding the interests of theState. The D.F.O. in this case was further armed with the “leave” ofthe lower appellate Court and that was a valid passport on thestrength of which he could enter the litigation arena and fight hiscase to a logical conclusion. The leave granted to the D.F.O. by thelower appellate court to file the appeals before that court treatinghim as a person aggrieved was not challenged either before thatcourt or before this Court. This gave the D.F.O. sufficient locusstandi to file and maintain the appeals before the lower appellate R.S.A. Nos. 1028 of 2006and 274 of 2007-:39:-court. When those who are entrusted with the duly of safeguardingthe interests of the State by filing a written statement before thetrial court and by filing appeals before the superior court, havebeen guilty of gross dereliction of duty, the act of the D.F.O. inupholding the interests of the State is to be appreciated and notblamed as the exploits of a meddlesome busybody. No questionof law, much less, any substantial question of law arises forconsideration in these Second Appeals. The questions of lawformulated in the memoranda of Second Appeals are answeredagainst the appellant. These Second Appeals are accordinglydismissed with costs throughout.22. It is the culpable connivance, unpardonable collusion,furtive non-appearance, iniquitous lapse, rank dereliction of dutyand betraying disloyalty of a Law Officer of the State at the lowerlevel which produced (rather provoked) an outrageous responsefrom Sri. Shripal, a district level forest officer to transgress allfunctional barriers and to personally undertake a litigativeoperation. In that adventure, he was destined to emerge victoriousbecause he had the unflinching and unquenchable fire of public interest R.S.A. Nos. 1028 of 2006and 274 of 2007-:40:-to justify him. Sri. Patric Gomez who succeeded Sri. Shripal also keptup the heat and tempo in the unrelenting fight for justice to the jungle.If every public servant showed such probity, commitment and dedicationas was shown by these Divisional Forest Officers, our arboreal wealthwould have remained virgin and insulated from the onslaughts ofavaricious forest brigands . The then District Government Pleader Sri.M. Rajagopalan Nair who filed the belated appeals along with thenecessary petitions also deserve to be complimented for the zeal andintegrity shown by him. Above all, the District Judge Sri. D. Pappachanwho sensibly and sensitively responded to the appeals filed by the D.F.O.has won the boundless approbation of this Court.I also place on record my appreciation for the scintillatingarguments advanced by Sr. Advocate Sri. Rajan Joseph and the young andenergetic Addl. Advocate General Sri. Ranjith Thamban. Dated, this the 19th day of February 2009.Sd/-V.RAMKUMAR, (JUDGE)ani/true copy/