IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 OP(C).No. 684 of 2010(O) ------------------------ AGAINST THE ORDER DATED 16/07/2010 IN IA.1058,1059/2010 IN OS.1119/2007 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER/PLAINTIFF ---------------------------------------- C.SURENDRAN, AGED 48 YEARS, S/O.LATE SRI.CHELLAPPAN, THAIVILAKOM VEEDU, KOCHUVELI, TITANIUM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.SUDHEESHKUMAR SRI.SUNIL KUMAR A.G RESPONDENTS: DEFENDANTS ------------------------- 1. PIOUS, S/O.BERTHLONE, KUNNIVILAKOM PURAYIDOM, TC 34/849, VALIYATHOPPU, VALLAKKADAVU P.O.,695 008 THIRUVANANTHAPURAM-. 2. KARMAL HENRY, S/O.BERTHLONE, C.H.HOUSE, TC 80/2116, THYVILAKOM VEEDU, KOCHUVELI, TITANIUM P.O. 695 021., THIRUVANANTHAPURAM 3. SHEELA VICTOR, D/O.BERTHLONE, THYVILAKOM VEEDU, KOCHUVELI, TITANIUM P.O.- 695 021., THIRUVANANTHAPURAM 4. SOROFIN NICLOSE, S/O.BERTHLONE, TC 32/1071(B), ALL SAINTS, ARA-41, CHURCH ROAD, BEACH P.O.-695 021, THIRUVANANTHAPURAM. 5. EDWIN HENRY, S/O.KARNAL HENRY, CH HOUSE, TC 80/2116, THYVILAKOM, KOCHUVELI-695 021., TITANIUM P.O., THIRUVANANTHAPURAM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.684 of 2010 --------------------------------------- Dated this 12th day of November, 2010 JUDGMENT Plaintiff in O.S.No.1119 of 2007 of the court of learned Additional Munsiff-II, Thiruvananthapuram is the petitioner before me, aggrieved by Exts.P4 and P5, orders refusing impleadment of additional respondent No.5 as a party to the suit and amendment of plaint. Petitioner sued respondent Nos.1 to 4 for a declaration of his title and possession of plaint A schedule property and for injunction against respondent Nos.1 to 4 trespassing into plaint A schedule. According to the petitioner, respondent Nos.1 to 4 had 7 cents of land on the northern side of plaint A schedule and they were using south eastern portion of their property for access to the said property. While so, they sold 3 cents towards the southern side of the said 7 cents to Thressia Fernandez (whose legal representative is additional respondent No.5) and later, in collusion with the said Thressia Fernandez respondent Nos.1 to 4 constructed compound wall around their property to show that they have no other means to enter their property except through plaint A schedule. Petitioner filed I.A.Nos.1058 and 1059 of 2010 for amendment of plaint and to O.P(C).No.684 of 2010 : 2 : implead additional respondent No.5 as an additional defendant. Those applications were resisted by the respondents. Learned Munsiff found that impleadment and amendment are unnecessary and dismissed the applications vide Exts.P4 and P5, orders which are under challenge. Learned counsel asserts that presence of additional respondent No.5 in the party array and amendment of the plaint as prayed for are necessary for effective and proper adjudication of the dispute. 2. Having heard counsel for petitioner and gone through the records and the impugned order I find myself unable to agree with learned counsel. There is no case that Thressia Fernandez or her legal representative (additional respondent No.5) has made any claim over the suit property so that additional respondent No.5 is required to be made a party either as a necessary or a proper party for adjudication of the dispute. The case set up against Thressia Fernandez is that it was in collusion with her that respondent Nos.1 to 4/defendant Nos.1 to 4 constructed compound wall around their property (after alleged sale of 3 cents to Thressia Fernandez) to make it appear that they have no way except through the suit property. That is a matter which, if relevant, petitioner has to prove by evidence and not by O.P(C).No.684 of 2010 : 3 : impleadment of legal representatives of Thressia Fernandez. Amendment prayed for is equally unnecessary. The main part of amendment prayed for is for mandatory injunction to direct respondent Nos.1 to 4/defendants and additional respondent No.5 sought to be impleaded as party to the proceeding to use C and D schedule properties. I fail to understand how the court could grant such a mandatory injunction directing respondents or anybody else to use of some other way. I do not find reason to interfere with the impugned order. Resultantly this petition fails. It is dismissed without prejudice to the right of petitioner to prove the alleged collusion if any and if relevant for adjudication of the dispute, by adducing appropriate evidence. (THOMAS P JOSEPH, JUDGE) Sbna/-