IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 OP(C).No. 3193 of 2011(O) ------------------------ OS.248/2008 of I ADDL.SUB COURT, KOZHIKODE ................... PETITIONER: ------------------- P.V.ABDULKHADER, S/O.C.P.KUNHAMMAD, MALABAR HOUSE, KATCHERI AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.M.G.ASHOKAN RESPONDENT(S): -------------------------- 1. P.V.KUNHIBEE, W/O.KUNHAMMED, BARAMI VALIYAKAM VEEDU, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN 673 001. 2. P.V.AYISHABEE ALIAS BEEVI, D/O.KUNHAMMED, BEHIND ANONA SUPER MARKET JUNCTION, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN 673 001. 3. P.V.ABDULLA KOYA, S/O.C.P.KUNHAMMAD, RESIDING AT NAGARAM AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN 673 001. 4. P.V.SAINABI, D/O.C.P.KUNHAMMED, MANARI ROAD, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN 673 001. 5. P.V.AHAMMED KOYA @ BICHU, S/O.C.P.KUNHAMMAD, KRIDY RESIDENCY, OLD KANKADI ROAD MANGALORE 575 002. 6. ANSARUL ISLAM PHITHEYLEE MIL ANAM ALIAS, THE MUHAMMADAN EDUCATIONAL ASSOCIATION, REPRESENTED BY ITS SECRETARY K.V.KUNHAMMED KOYA, S/O.P.I.AHAMMED KOYA, RESIDING AT NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN 673 001. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 3193 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PLAINT AS OS NO.248 OF 2008 FILED BY THE PETITIONER BEFORE THE I ADDITIONAL SUB COURT, KOZHIKODE. EXHIBIT P2 TRUE COY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 2 AND 4 EXHIBIT P3 TRUE COPY OF THE FAMILY SETTLEMENT DEED EXECUTED BY VALIYAKATH HAJI ALI BARAMI DATED 24/1/1972. EXHIBIT P4 TRUE COPY OF THE JUDGEMENT DATED 18/1/2008 IN AS NO.43/2000 AND 104/2000 OF THIS HON'BLE COURT. EXHIBIT P5 TRUE COPY OF THE IA NO.2994/2008 FILED BY THE 6TH RESPONDENT IN OS NO.248 OF 2008. EXHIBIT P6 TRUE COPY OF THE ORDER IN IA NO.2994/2008 IN OS NO.248 OF 2008 DATED 31/3/2011 PASSED BY THE I ADDITIONAL SUB COURT, KOZHIKODE. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3193 of 2011 ==================================== Dated this the 13th day of October, 2011 J U D G M E N T Petitioner-plaintiff in O.S. No.248 of 2008 of the court of learned First Additional Sub Judge, Kozhikode is aggrieved by Ext.P6, order dated March 31, 2011 on I.A. No.2994 of 2008 impleading the 6th respondent as additional defendant in the suit. 2. O.S. No.248 of 2008 is a suit for partition and separate possession of the 1/6th share claimed by petitioner. The 6th respondent which is an Educational Institution filed Ext.P5, application for impleadment raising a claim based on Ext.P3, settlement deed that the property is Wakf property. The 6th respondent also filed O.S. No.9 of 2003 for recovery of possession of suit property on the very same contention. Petitioner objected to Ext.P5, application contending that the 6th respondent is neither a necessary nor a property party in the suit filed by him and that even if a decree for partition is passed in O.S. No.248 of 2008, that will not affect the claim made by the 6th respondent and that if a decree is obtained by the 6th respondent in O.S.No.9 of 2003, it can proceed to execute that decree. Petitioner being the master of the suit a stranger should not have been impleaded O.P(C) No.3193 of 2011 -: 2 :- against his wish when the presence of the stranger neither necessary nor proper. According to the learned counsel petitioner had sought impleadment in O.S. No.9 of 2003 but that request was disallowed. 3. It is not disputed that claim being made by the 6th respondent as per Ext.P3, settlement deed is in respect of the suit property. The claim is that the property is Wakf property. It is not disputed that 6th respondent has filed O.S.No.9 of 2003 for recovery of possession of the property on the very same contention. In other words while O.S. No.248 of 2008 filed by the petitioner proceeded on the basis that the property is partible, the 6th respondent proceeds in O.S. No.9 of 2003 in which some of the defendants in O.S. No.248 of 2008 are also parties, on the basis that the property is Wakf property. In the circumstance, presence of the 6th respondent as a party in O.S. No.248 of 2008 is proper, if not necessary even if it is assumed so. Viewed in that line, learned Sub Judge is correct in impleading the 6th respondent as a proper party in O.S. No.248 of 2008. I do not find reason to interfere with the impugned order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv