IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 RSA.No. 1021 of 2009() ---------------------- AS.6/2003 of ADDL.SUB COURT, ALAPPUZHA OS.488/1997 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------- SARASWATHY AMMA, W/O UDAYAPPAN, AGED 51 YEARS, RESIDING AT PARAMBITHARA VELI VEETTIL, WARD NO.11, ARYAD NORTH MURI, MANNANCHERRY PANCHAYATH, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENTS/ RESPONDENTS/DEFENDANTS: ------------------------------------- 1. THANKAKUTTAN, S/O.KARUNAKARAN PILLAI, AGED 42 YEARS, RESIDING AT THANKA NIVAS, WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. 2. SIVADAS, S/O.CHIDAMBARAN, AGED 37 YEARS, RESIDING AT OTTAKANDATHIL, WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. 3. ANTHAPPAN, S/O.OUSEPH, AGED 45 YEARS, RESIDING AT AMBALKANDATHIL, WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. 4. SUNNY, S/O.OUSEPH, AGED 50 YEARS, RESIDING AT AMBALKANDATHIL, WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. 5. LALIMON, S/O.OUSEPH, AGED 47 YEARS, RESIDING AT AMBALKANDATHIL, WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. 6. SHAJI, S/O.DAKSHAYANI, AGED 42 YEARS, RESIDING AT THEKKE VELIYIL, WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. 7. MANIAYAPPAN, S/O.DAMODARAN, AGED 40 YEARS, RESIDING AT THEKKE VELIYIL, WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. 8. UDAYAN, S/O.LAKSHMANAN, AGED 35 YEARS, RESIDING AT THEKKE VELIYIL WARD NO.11, MANNANCHERRY PANCHAYATH, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPUZHA TALUK. ADV. SRI.T.JAYAKRISHNAN FOR R1,2,3&5-8 SRI.A.V.CHARLES FOR R1,2,3 & 5 TO 8 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1021 of 2009E --------------------------------------- Dated this 30th day of November, 2009 JUDGMENT The second appeal arises from judgment and decree of learned Additional Sub Judge, Alappuzha in A.S.No.6 of 2003 confirming dismissal of O.S.No.488 of 1997 by the learned Additional Munsiff, Alappuzha. Appellant instituted that suit for recovery of possession, mandatory and prohibitory injunction alleging that respondents unauthorisedly constructed a road through her property referred to in the plaint schedule on 04-05-1997. It is further alleged that on 06-05- 1997 respondents tried to construct road on the northern side of the suit property. Hence the suit. Respondents contended that they have not constructed any such road through the suit property and claimed that there is a Panchayath road in existence through the suit property for the last 40 years. They claimed that the residents of the locality are using the said road. Further contention is that the said road belonged to the local Panchayath and hence in the absence of the Panchayath in the party array no relief as prayed for could be granted. Learned Munsiff held from the evidence of DWs.2 and 3 and Exts.X1 to X9 that the management and control of disputed road is with the local authority concerned, appellant was not able to prove her assertions against the respondents and hence is not entitled to the relief prayed for. Accordingly the suit was dismissed. Appellant took up the matter R.S.A.No.1021 of 2009 2 in appeal. The first appellate court observed that evidence would show that the disputed road was formed sometime before institution of the suit. But first appellate court also was of the view that the local authority was a necessary party to the suit. Holding that the involvement of the respondents in the alleged formation of the road is not proved, first appellate court confirmed judgment and decree of the trial court. Hence the second appeal. The question raised is whether finding of the first appellate court that the road in question vested with the Panchayath under section 169 of the Panchayath Raj Act is legally sustainable and whether the dismissal of the suit holding that the Panchayath was a necessary party is justified. It is contended by learned counsel for appellant that after holding that the Panchayath was a necessary party, appellant ought to have been given an opportunity to implead such necessary party and the dismissal, without giving such an opportunity is illegal. It is also contended by learned counsel that without the Panchayath on the party array finding that disputed road vested with the Panchayath is not justified. Counsel for respondents except respondent No.4, who entered appearance pursuant to the notice served on them would contend that there is no substantial question of law involved in the second appeal. 2. So far as formation of the disputed road is concerned, courts below found that respondents have no role in that. That finding R.S.A.No.1021 of 2009 3 is based on the evidence on record and that, in my view involved no substantial question of law requiring consideration by this Court in second appeal. 3. Then the next question is whether the suit was dismissed without giving opportunity to the appellant to implead necessary party. Assuming that there was no specific posting for impleadment of necessary party after answering the issue regarding that, it is not as if appellant was unaware of the contention raised by the respondents regarding necessity to implead the Panchayath as a party to the suit. It is not disputed that during the pendency of the suit in the trial court, appellant filed I.A.No.1088 of 2002 seeking permission to withdraw the suit with liberty to file fresh suit since according to the appellant, the suit suffered from a formal defect for non impleadment of the Panchayath. Appellant claimed that she had given notice to the Panchayath as provided under section 249 of the Panchayath Raj Act. That application was allowed on cost. On the failure of appellant to pay cost, application finally ended in a dismissal. Assuming that I.A.No.1088 of 2002 was dismissed, appellant having complied with section 249 of the Panchayath Raj Act (as she claimed) could have requested for impleadment of the Panchayath. That was not done. On the other hand, notwithstanding filing of I.A.No.1088 of 2002 and the contention raised by respondents, appellant has been trying to R.S.A.No.1021 of 2009 4 convince the courts below that the Panchayath is not a necessary party to the suit but she failed. Now she cannot contend that she was not given an opportunity to implead necessary party. Therefore it is idle for the appellant to contend that she was unaware about the necessity to implead the Panchayath as a party. It was for the appellant to take necessary steps to implead the Panchayath as a defendant after complying with the formalities provided under the relevant laws. In the circumstance, the mere fact that no specific posting was given for impleadment of the necessary party is not fatal. 4. What remained for consideration is whether the first appellate court was justified in observing that the road in question vested with the Panchayath under section 169 of the Kerala Panchayath Raj Act. Learned counsel for appellant submits that the said finding would stand in the way of appellant filing fresh suit against the Panchayath for appropriate reliefs. 5. The observation or finding as the case may be, made by the first appellate court in my view was not necessary for disposal of the appeal since relief sought in the first appellate court was against respondents and the first appellate court also found that such relief cannot be granted since involvement of the respondents in the alleged formation of the road is not proved. Therefore, it was not necessary for the first appellate court to observe/find that the road vested in the R.S.A.No.1021 of 2009 5 Panchayath. Hence, the finding/observation made by the first appellate court to the extent that the disputed road vested in the Panchayath is set aside leaving it open to the appellant to agitate that question if he were otherwise entitled to do so, in appropriate proceedings. Since no substantial question of law is involved, the second appeal does not warrant an admission. Resultantly with the observation made above, the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/