1. These appeals arise out of suits under Section 14 of the Survey and Boundaries Act.
2. The position in these two suits is a very curious one. The plaintiff was the same in the two suits and, before they were actually filed, he seems to have come to some arrangement with the two second defendants; for they filed no written statement. The common first defendant was the Secretary of State; and all the issues were framed because of the written statement of the first defendant. The trial Court found that the Secretary of State was not a necessary party; and while decreeing the suits, as the second defendant in each case did not oppose, ordered that the first defendant be given his costs on the ground that he was not a necessary party.
3. The appeals were heard by two Judges. In A.S. No. 233 of 1936, the Judge held that the Secretary of State was not a necessary party; but that his attitude in supporting the case of the second defendant and joining issue with the plaintiff disentitled him to receive costs. He thought, moreover, that although the Secretary of State was not a necessary party, he was a proper party. In A.S. No. 188 of 1936 (S.A. No. 262 of 1937) the principal Subordinate Judge found that the first defendant was a necessary party in each case. The appeals of the plaintiff against the orders as to costs were allowed and the Government was ordered to pay its own costs in both Courts in both suits.
4. The decisions given under the Survey and Boundaries Act are by Survey Officers who, though appointed by the Government, in no sense represent them in their actions under the Survey and Boundaries Act. They are Statutory Officers given statutory powers and they act in a quasi-judicial manner; and their decisions are binding on parties in the absence of a suit. The Government was not in the least interested in the result of the suit; for the Survey Officer, in making his decisions, acted not as an agent of the Government, but as a Statutory Officer specially empowered under the Act. The learned principal Subordinate Judge in A.S. No. 188 of 1936 says:
If the Government is not a party to the proceeding, I do not think any order passed by a Civil Court may be binding (on the Government)
and, later 'it is the Government that demarcates the survey numbers'. This is incorrect. It is not the Government that makes the survey; but a Survey Officer specially empowered by the Statute. Clearly, the lower appellate Court, was wrong in thinking that the Government was a necessary party. For the same reasons, the Government is not a proper party. The dispute was between - and only between - the two persons interested in the common boundary. Upon the decision of the Civil Court, the Survey authorities would have to make the necessary changes in their registers.
5. It is not denied in this Court that the Government was neither a necessary nor a proper party. The orders of the lower appellate Courts are however supported on the ground that Government, instead of contenting itself with merely stating that it was not a necessary party, tried to uphold the finding of the Survey Officer. The Government says in paragraph 1 of its written statement in each case:
The allegations in the plaint are not true and this defendant puts the plaintiff to strict proof of all the allegations that are not expressly admitted herein.
6. Then, in para. 5:
The allegation that the second defendant encroached jupon the suit lands after the inclusion of the suit lands, in his adjoining land is also absolutely false. But this defendant submits that the second defendant and his ancestors were in possession of the suit land even prior to the block survey.
7. The first paragraph set out above may be excused on the ground that allegations were made in the plaints that the changes were brought about by the collusion of the second defendant with the village officers. But even if it were true that some collusion had taken place, the Government would still not have been either a necessary or a proper party, as no relief was asked against the Government by way of damages or otherwise. Para. 5 cannot be defended in any way. The Government certainly should have adopted a neutral attitude on this point. However, although the Government adopted an attitude which was not strictly neutral and adopted pleas which were beyond what were directly necessary for the defence of their own subordinates; yet the primary responsibility for raising all these various issues was upon the Court. In fact, the District Munsif should at the outset have realised that the first defendant was not a necessary party; and if he had done that, no issue would have been framed. If there had been any doubt about it, the question whether the first defendant was a necessary party could have been raised as a preliminary issue. However that may be, even if the learned Munsif had any discretion in disallowing the costs of the first defendant on the ground that he had raised pleas which were not necessary, he did not do so. The lower appellate Courts, for reasons which I have held to be wrong, considered that the first Court should have disallowed the first defendant's costs. If the trial Court had a discretion, it exercised it in favour of the first defendant; and there are no sufficient grounds for interfering with that discretion.
8. The appeals are therefore allowed with costs and the first defendant given its costs in all three Courts. Advocate's fee one set in this Court.