IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).No. 2057 of 2011(O) -------------------------------- OS.120/2002 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER ---------------- KARATHAN MOHANAN, S/O.BALAN, SAYANTH NIVAS, KARIYIL, P.O.NIRMALAGIRI, KUTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): --------------------- 1. MUNDAYODAN NARAYANAN NAIR, S/O.KRISHNAN NAIR, AGED 69 YEARS, "SREE VIHAR", MANGATTIDAM AMSOM, KURUMBUKKAL DESOM, P.O.NIRMALAGIRI, THALASSERY TALUK - 670701. 2. P.V.NIKESH, S/O.ROHINI, PUTHIYAVEETTIL KARIYIL, P.O.NIRMALAGIRI, KUTHUPARAMBA, KANNUR DISTRICT - 670701. 3. P.GIRIJAN, S/O.NALINI, AGED 53 YEARS, MEENA BHAVAN, KURUMBUKKAL, NIRMALAGIRI - 670701. 4. K.BIJU, S/O.REMANI, AGED 43 YEARS, KATTILEPURAYIL HOUSE, KARIYIL, NIRMALAGIRI, KANNUR DISTRICT - 670701. 5. C.K.KORAN, S/O.KORAN, AGED 78 YEARS, CHERIYARAYAROTH, KURUMBUKKAL, P.O.NIRMALAGIRI, KANNUR DISTRICT - 670701. svs ............2/-... ...2... OPC.NO.2057/2011 6. K.J.JOSEPH, S/O.JOSEPH, AGED 51 YEARS, KIZHAKKEMUTTAM HOUSE, KARIYIL P.O., NIRMALAGIRI - 670701. 7. MOOKAYIL PRADEEPAN, S/O.CHATHUKUTTY, AGED ABOUT 48 YEARS, KOMBIL HOUSE, MANGATTIDAOM AMSOM, KURUMBUKKAL DESOM, P.O.NIRMALAGIRI, THALASSERY TALUK - 670701. 8. BROTHER MOOKAYIL SAJEEVAN, S/O.CHATHUKUTTY, AGED ABOUT 38 YEARS, KOMBIL HOUSE, MANGATTIDAOM AMSOM, KURUMBUKKAL DESOM, P.O.NIRMALAGIRI, THALASSERY TALUK - 670701. 9. CHITTAKKANDI PRAKASHAN, S/O.KUMARAN, AGED ABOUT 33 YEARS, PODANPARAMBA, MANGATTIDAOM AMSOM, KURUMBUKKAL DESOM, P.O.NIRMALAGIRI, THALASSERY TALUK - 670701. 10. MANIYANKANDATHIL LASAR @ LUKOSE, S/O.ULAHANNAN, AGED ABOUT 61 YEARS, NIRMALA BHAVAN, MANGATTIDAOM AMSOM, KURUMBUKKAL DESOM, P.O.NIRMALAGIRI, THALASSERY TALUK - 670701. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2057/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT O.S. NO.120/02 BEFORE THE MUNSIFF'S COURT, KUTHUPARAMBA. P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.120/02 FILED BY 5TH DEFENDANT. P3: COPY OF THE WRITTEN STATEMENT IN O.S.NO.120/02 FILED BY DEFENDANT 1 AND 2. P4: COPY OF THE ADDITIONAL WRITTEN STATEMENT IN O.S. NO.120/02 FILED BY DEFENDANTS 1 TO 4. P5: COPY OF THE ROAD REGISTER. P6: COPY OF THE ORDER DATED 16/09/2010 IN O.S. NO.120/02 BEFORE THE MUNSIFF'S COURT, KUTHUPARAMBA. P7: COPY OF THE ORDER DATED 15/03/2011 IN REVIEW PETITION FILED AS I.A. NO.2375/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2057 of 2011 --------------------------------------- Dated this 08th day of July, 2011 JUDGMENT Petitioner is the fifth defendant in O.S.No.120 of 2002 of the Court of learned Munsiff, Kuthuparamba. That suit was filed by the first respondent against respondent Nos.1 to 4 for a decree for prohibitory injunction to restrain them from trespassing into the suit property, obstructing his restoring its boundary or taking vehicles through the said property and for recovery of damages. Petitioner filed Ext.P2, written statement contending that a portion of the suit property belongs to the local panchayath and that there is a public road through the western side of the said property which first respondent tried to encroach and construct a boundary wall. According to the petitioner, that road belongs to the panachayath and hence panchayath is a necessary party. The issue whether panchayath is a necessary party was raised as a preliminary question, considered by the learned Munsiff and found against petitioner by Ext.P6, order which is under challenge. Learned counsel submitted that having regard to the nature of contentions raised by the parties the panchayath is a necessary party for an effective decree in the O.P(C).No.2057 of 2011 -: 2 :- case. It is also submitted by learned counsel that even the learned Munsiff has observed that the panchayath is a proper party to decide on the issue of title over the disputed property. Reliance is placed on the decision of the Supreme Court in Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and Ors. ((2010)7 SCC 417) and in particular paragraph 12 to 15 of the decision. 2. I have gone through the decision relied by learned counsel. That decision says that the general rule is that plaintiff is the dominus litis of the litigation and hence it is open to him to choose the person against whom he wishes to litigate and obtain a decree. Normally the Court cannot compel him to sue somebody whom he does not choose to sue against. But that rule is subject to the question whether the person to be sued is a necessary party and without whose presence, there cannot be an adjudication of the dispute involved. In such cases it is within the power of Court to direct necessary party to be impleaded in the suit and if the direction is not complied, consequence shall follow. This Court had occasion to decide who is a necessary or proper party in Sassim Vs. South Indian Bank Ltd (1991(1) KLT 573) and Skaria Joseph Vs. Eliyamma Joseph (1996(2) O.P(C).No.2057 of 2011 -: 3 :- KLT 295). A 'necessary party' is one without whom no decree could be passed. On the other hand, a proper party is one who, though not a necessary party, is a person whose presence would enable the Court to completely and effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. 3. In the present case first respondent claims title and possession of the property. To succeed in the suit it is for the first respondent to establish the same. If petitioner or any of the contesting defendants have a case that first respondent has no title or possession over the property and that any portion of the property is part of the public road belonging to or vested in the panchayath, it is open to the petitioner or such other defendants to prove the same. For petitioner or other defendants to prove that, I am not inclined to think that presence of panchayath as a party in the suit is necessary or proper. Assuming that the Court finds against contention of petitioner and other defendants on evidence and grants a decree unfavourable to the petitioner and other defendants, that may not probably bind the panchayath as the panchayath is not made a party. In the circumstance, I am not inclined to think that the panchayath is a necessary party and O.P(C).No.2057 of 2011 -: 4 :- first respondent should be compelled to implead panchayath. The consequence of non impleadment of panchayath is a matter which the trial court will decide in the course of trial. With the above observation this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-