IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 OP(C).No. 3144 of 2011(O) -------------------------------------- OS.NO. 746/2002 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER -------------------- JANAKI, D/O. MADAZHI AMMU AMMA, RESIDING AT PUTHAMBALLY DESOM, IRINGAPRAM AMSOM,CHAVAKKAD,PIN- 680 506. BY ADV. SRI.R.HARIKRISHNAN SRI.E.RAMACHANDRAN SRI.R.UMASANKAR RESPONDENT(S): --------------------------- 1. VIVEKANANDAN, D/O.KOOLIYATT SUBRAMANIYAN, RESIDING AT PUTHAMPALLY DESOM,IRINGAPRAM AMSOM, CHAVAKKAD TALUK,PIN- 680 506. 2. SUBRAMANIYAN, S/O.KOOLIYATT KAMMU, CHOOLPURAM DESOM,IRINGAPRAM AMSOM, CHAVAKKAD TALUK,PIN- 680 506. 3. BHARGAVI,S/O.KOOLIYATT KAMMU, RESIDING AT PUTHAMPALLY DESOM IRINGAPRAM AMSOM,CHAVAKKAD TALUK,PIN 680506. 4. THANKAMANI, W/O.KOOLIYATT SUBRAMANIYAN, KOOLIYATT KAMMU,CHOOLPURAM DESOM, IRINGAPRAM AMSOM,CHAVAKKAD TALUK,PIN 680 506 5. SEENA, D/O.SUBRAMANIYAN, RESIDING AT PUTHAMPALLY DESOM, IRINGAPRAM AMSOM,CHAVAKKAD TALUK,PIN 680 506 6. BEENA, D/O.SUBRAMANIYAN, RESIDING AT PUTHAMPALLY DESOM, IRINGAPRAM AMSOM,CHAVAKKAD TALUK,PIN 680 506 2/- -2- OP(C)NO.3144/2011 7. LEENA, D/O.SUBRAMANIYAN, RESIDING AT PUTHAMPALLY DESOM, IRINGAPRAM AMSOM,CHAVAKKAD TALUK,PIN- 680 506. 8. KESAVADAS, S/O.MADAZHI AMMU AMMA, PUTHAMPALLY DESOM,IRINGAPRAM AMSOM, CHAVAKKAD TALUK,PIN- 680 506. 9. BHASKARAN,S/O.MADAZHI AMMU AMMA, PUTHAMPALLY DESOM,IRINGRAPRAM AMSOM, CHAVAKKAD TALUK,PIN- 680 506. 10. SATHYANATH, S/O.LATE MADAYI SANKARA NARAYANAN, KIZHAKKUMPATTUKARA VILLAGE, THRISSURE TALUK,PIN- 680 506. 11. PARVATHY, W/O.LATE MADAYI SANKARA NARAYANAN, KIZHAKKUMPATTUKARA VILLAGE, THRISSUR TALUK,PIN- 680 506. 12. NEENA, D/O.SUBRAMANIYAN, CHOOLPRAM DESOM, IRINGAPRAM AMSOM, CHAVAKKAD TALUK,PIN- 680 506. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3144/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 A TRUE COPY OF THE ORDER DATED 26.09.2008 OF THE MUNSIFF COURT,CHAVAKKAD. EXT.P2 A TRUE COPY OF THE WRITTEN STATEMENT DATED 15.10.2009 OF THE MUNSIFF COURT,CHAVAKKAD. EXT.P3 A TRUE COPY OF THE PATTAYAM NO.7021 DATED 30.08.1990. EXT.P4 A TRUE COPY OF THE TAX RECEIPT NO.53803 DATED 05.04.2011. EXT.P5 A TRUE COPY OF THE PLAINT IN O.S.NO.746/2002, MUNSIFF COURT,CHAVAKKAD. EXT.P6 A TRUE COPY OF THE REVIEW PETITION BEFORE THE MUNSIFF COURT,CHAVAKKAD. EXT.P7 A TRUE COPY OF THE ORDER IN I.A.NO.4607/09 I.A.NO.1224/2008 IN O.S.NO.746/2002 & I.A.NO.4606/2009 IN I.A.NO.1225/2008 IN O.S. NO.746/2002 EXT.P8 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN WRIT PETITION NO.O.P(C) 656/2010 DATED 11.11.2010. EXT.P9 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER AS I.A.NO.4473/2011 IN O.S. 746/2002. EXT.P10 A TRUE COPY OF THE ORDER OF THE HON'BLE MUNSIFF COURT,CHAVAKKAD IN I.A.NO.4473/2011 IN O.S.NO.746/2002 DATED 28.8.2011. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3144 of 2011 --------------------------------------- Dated this 30th day of September, 2011 JUDGMENT Additional defendant No.8 challenges Ext.P10, order dated August 28, 2011 on I.A.No.4473 of 2011 in O.S.No.746 of 2002 of the Court of learned Munsiff, Chavakkad. That is a suit filed by the first respondent for partition of various items mentioned in the plaint schedule claiming that the said properties belonged to his late grandfather. While so, the first respondent filed I.A.No.1224 of 2008 to implead petitioner and respondents 8 to 11 as additional defendants 8 to 12 alleging that they made some claim over some item of plaint schedule property to the Village Officer and that to avoid boundary dispute and to have an effective decree, it is necessary to implead petitioner and respondents 8 to 11 also as defendants in the suit. That application was allowed and summons was issued to the petitioner and respondents 8 to 11. That order was challenged in O.P(C).No.656 of 2010. This court directed learned Munsiff to re-consider the question whether petitioner and respondents 8 to 11 are necessary/proper parties to the suit having regard to the contention they raise in the written statement. Thereafter O.P(C).No.3144 of 2011 -: 2 :- petitioner and respondents 8 to 11 filed Ext.P2, written statement where they contended that they are not necessary parties to the suit. They also claimed right over 28cents in survey 133/6 and contended that over the said property neither the first respondent nor respondents 2 to 7 have any right. The further contention raised by them is regarding the existence of a cause of action and sufficiency of court fee. 2. In the light of the judgment in O.P(C).No.656 of 2010, petitioner and two others filed I.A.No.4473 of 2011 for review of Ext.P1, order. That application was dismissed by Ext.P10, order. Learned Munsiff observed that petitioner and respondents 8 to 11 have not stated in the written statement that their impleadment is barred under law or barred for any reason. The only contention is that they are unnecessary parties to the suit but fact is that they claim exclusive title and possession in respect of a portion of the suit property. Learned Munsiff held that as the suit is for partition presence of petitioner and respondents 8 to 11 is necessary. Accordingly I.A.No.4473 of 2011 was dismissed. The dismissal of the application is under challenge. 3. Learned counsel contended that petitioner and respondents 8 to 11 are not necessary parties. Reliance is placed O.P(C).No.3144 of 2011 -: 3 :- on the decision in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Ors. (1992 (2) SCC 524) as to the circumstances under which the Court could add additional parties under Rule 10(2) of Order I of the Code of Civil Procedure. 4. Even at the time of argument, learned counsel submits that petitioner and respondents 8 to 11 are claiming right over one item of property referred to in the plaint schedule. This being a suit for partition, necessarily therefore petitioner and respondents 8 to 11 are required to be made parties. Otherwise, in the course of execution of the final decree that may be passed in respect of the item of property over which respondents 8 to 11 are making a claim, various objections and obstructions might arise and the executing court may have to decide those questions. To avoid that and to have a complete adjudication of the dispute even as to the item of property in the plaint schedule over which petitioner and respondents 8 to 11 are making a claim, their presence is necessary and at any rate is proper. Impleadment is therefore proper. This original petition is dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-