Venkataramana Rao, J.
1. This is an application to revise the order of the District Munsiff of Bellary directing that the Government should be impleaded as a party to the suit. The reason given by him is, apart from the question whether the Government is a necessary party or not, that he considers it desirable that it should be a party to the suit. The question is, whether in the exercise of his discretion under Order 1, Rule 10, Civil Procedure Code, the District Munsiff has gone wrong and it is therefore unnecessary for me to consider the decisions in Krishnayya v. The Bellary Municipal Council I.L.R. (1891) 15 Mad. 292 and Nathalal Ramdas v. The Nadiad Municipality I.L.R. (1922) 47 Bom. 306 as they only hold that in a suit where a claim to property is asserted against the Municipality, the Government is not a necessary party. Whether the Government is a proper party or not, would depend on the facts of each case and no general rule can be laid down. This action relates to a vacant site and the plaintiff claims a declaration that he is the owner thereof and that the Municipality has no right to interfere with any use he may make of it. The main defence of the Municipality is that the site forms part of Survey No. 504-V and is registered in the village accounts as 'kuntha' and 'rastha' that the title thereto is in the Government and the same has vested in it for municipal purposes and that the Government should be made a party. Thus the claim is in respect of property which is asserted to be a public pathway. If it is so, prima facie the title would be in the Government and in such cases, though the right of the Municipality to assert its claim over it for Municipal purposes may be lost by adverse possession, the title of the Government would not be lost unless it is shown that the property was held adversely for over a period of 60 years and it would be open to the Government to remove any obstruction on the property and dedicate it again to a highway. This view was taken by Bhashyam Aiyangar, J., in Sundaram Aiyar v. The Municipal Council of Madura (1901) 12 M.L.J. 37 : I.L.R. 25 Mad. 635. In remanding the case for disposal in second appeal the learned Judge considered it desirable to make the Government a party in that suit. There a similar claim was made against the Municipality and in the course of the judgment the learned Judge made the following observation:
As some of the issues now to be sent for trial involve the question of the right of the Government to the ownership of the soil in public streets, and as all material documents bearing on this question will be in the possession of Government, I think it desirable that the Secretary of State for India in Council should be joined as a party to the suit and appeal in this and the connected second appeals.
2. In this case the Municipality did not assert a title in itself but set up title in the Government and claims to exercise certain rights over the site in question by virtue of the vesting of the said property by statute for limited purposes. In cases where the plea of jus tertii is set up, it is generally considered desirable to make the person whose title is set up, a party to the suit to avoid multiplicity, of litigation. Therefore in cases where the interests of the public are involved and the ownership of the Government is in question, it is very desirable and sometimes quite necessary to make the Government a party and avoid multiplicity of proceedings. Mr. Krishna Rao contends that the plaintiff will be put to considerable hardship by the addition of the Government as a party in the matter of proof, presumptions of law and similar matters by reason of the peculiar position of the Government. True, but that would not affect the question where a declaration of absolute title to property is asked for as against persons in whom the property has for the time being vested for specific purposes, without the free-hold vesting in them. It is desirable that the person really interested in the property should be a party to the suit.
3. One of the reasons given by Bhashyam Aiyangar, J., is that most of the documents bearing on title will be in possession of the Government and not with the Municipality. Mr. Krishna Rao says that in most cases Government declines to produce documents on the ground of privilege. I do not expect the Government to take an unreasonable attitude and the Court will certainly afford all facilities in the matter of production of documents by the Government.
4. One matter I must notice. It is surprising that the Government should have taken the plea that notice under Section 80, Civil Procedure Code, should have been given to it and the absence of any such notice is a bar to any claim against it. Mr. Champakesa Aiyangar for the Government frankly admits that this plea ought not to have been taken and states it would not be pressed.
5. The decision of the lower Court in exercising its discretion in making the Government a party to the suit is correct and I do not propose to interfere with it in revision. In the result the Civil Revision Petition is dismissed with costs.