IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 FAO.No. 54 of 2008() -------------------- AS.77/2006 of SUB COURT, PALA OS.159/2004 of MUNSIFF COURT, PALA .................... APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------------------ MATHEW, S/O. ANTONY, MANATHUNDATHIL, POOVARANI KARA, MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------ 1. PRINCE, S/O. JOHN, KALAPPURAKKAL HOUSE, KOZHUVANAL P.O., POOVARANI KARA, MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. ANTONY MATHEW, S/O. MATHEW, THONAKKARAPARAYIL HOUSE, KOZHUVANAL P.O., MATTAKARA KARA, KOTTAYAM TALUK. ADV. SRI.SHAJI THOMAS PORKKATTIL FOR R2 SRI.T.V.VINU FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ F.A.O.NO.54 OF 2008 ------------------------------- DATED THIS THE 25TH DAY OF MAY, 2010 JUDGMENT Plaintiff in O.S.No.159/04 on the file of the Munsiff's Court, Pala is the appellant. This appeal is directed against the order of remand dated 5th November, 2007 passed in A.S.No.77/06 on the file of the Sub Court, Pala. The suit was filed for declaration of easement right and for ancillary reliefs. The trial court by decree and judgment dated 31st January, 2006 declared the prescriptive easement right of the plaintiff over plaint schedule item No.2 road, which is more particularly shown in Ext.C2(a) plan and granted a decree of permanent prohibitory injunction. The sole defendant preferred A.S.No.77/06 before the Sub Court, Pala challenging the decree and judgment passed by the Munsiff's Court, Pala. The lower Appellate Court set aside the decree and judgment and remanded the matter to the -2- F.A.O.54/08 lower court for fresh disposal, after affording opportunity to the parties to adduce further evidence. The plaintiff in the suit was directed to take steps to implead the owners of the servient tenement and to get fresh commission report. Aggrieved by the order of remand, this appeal was preferred by the plaintiff in the suit. 2. The plaintiff is admittedly the owner of plaint item No.1. The sole defendant in the suit is in possession and enjoyment of the property lying on the eastern side of the plaint schedule item No.1. Plaintiff claimed a right of way through the defendant's property, which lies on the eastern side of the plaintiff's property. According to the plaintiff, he is using the road which passes through the defendants property for his ingress and egress to the plaint schedule item No.1. The alleged road which passes through the defendant's property is scheduled as item No.2. 3. The sole defendant contested the suit. -3- F.A.O.54/08 According to him, there exists no road through his property as alleged by the plaintiff. Based on the pleadings the trial court framed necessary issues and the plaintiff and defendant adduced oral and documentary evidence. On the side of the Plaintiff Pws.1 to 4 were examined and Exts.A1 and A2 were marked. Defendant was examined as DW-1 and Exts.C1, C1(a), C2 and C2(a) were marked as court exhibits. 4. When the appeal was taken up for final hearing on 6/10/07, the learned counsel for the appellant reported no instruction. As per the order in I.A.No.1522/07 additional second appellant was impleaded. It is stated that the additional 2nd appellant purchased the plaint schedule property from the original appellant as per sale deed No.1009/04. He is the 2nd respondent in this appeal. The lst respondent herein is the original defendant. He did not choose to contest this appeal. The additional 2nd appellant in A.S.No.77/06 contended that himself and his brothers had purchased the property, over which -4- F.A.O.54/08 the disputed way exists, from the original defendant as per Ext.B1 sale deed dated 16/8/04. It is further submitted that they have no knowledge about the pendency of the suit and that the original defendant who is the vendor of the property, failed to inform the additional appellant about the litigation between the plaintiff and the original owner. According to the additional appellant, the original appellant, who is the sole defendant in the suit, colluded with the plaintiff in order to pass a decree against his property and that the decree obtained by the original plaintiff without impleading the true owner of the property is liable to be set aside and the same is bad for non-joinder of necessary parties. 5. At the same time, the original plaintiff contended before the lower court that the additional appellant and his brothers had clear knowledge about the pendency of the suit at the time when they purchased the property from the original defendant and therefore the decree in O.S.No.159/04 is binding on the property purchased by the additional appellant and his -5- F.A.O.54/08 brothers. In view of the rival contentions raised by the parties, the Lower Appellate Court examined whether the suit is bad for non-joinder of necessary parties and whether the decree is binding upon the additional appellant and his brothers as alleged by the respondent (appellant herein). It is a fact that the decree and judgment were passed without the junction of additional appellant and his brothers, who are the owners of the property. They purchased the property soon after the filing of the suit. In the plaint there is mention about the agreement for sale. It is not known for what reason the original defendant in the suit did not point out the sale in favour of the additional appellant and his brothers. It is not known for what reason the plaintiff has not chosen to implead the subsequent purchasers of the property, though the additional appellant and his brothers purchased the property as per Ext.B1 sale deed. The Lower Appellate Court observed that the contentions in the written statement would prove that the defendant filed written statement on the -6- F.A.O.54/08 assumption that he is the real owner of the property. It is a fact that the defendant and his mother had jointly executed Ext.B1 sale deed in favour of 3 persons including additional appellant about 1 ½ months prior to the filing of the written statement. 6. In the light of the aforesaid facts, this Court is of the view that an opportunity shall be given to the plaintiff to implead the owners of servient tenement for an effective adjudication of the dispute between the plaintiff and the owners of the servient tenement. Yet another reason is that the Lower Appellate Court took the view that the description of item No.2 road shown in Ext.C2 plan is not in tune with original lie and width of the road which is lying through the servient tenement. According to the learned Judge, the decree passed on the basis of Ext.C2(a) plan will not sustain. Whatever be the reason Ext.C2 (a) plan was prepared by the commissioner without the junction of the property owners in the party array. Therefore, in the interest of justice, an opportunity shall be given to the plaintiff to -7- F.A.O.54/08 substantiate his contentions with the property owners in the party array. The plaintiff is at liberty to obtain necessary report and plan in the presence of the property owners of the servient tenement. For the aforesaid reasons, it is not necessary to go into the exact reason why either the plaintiff or the original defendant failed to bring to the notice of the court that the property was sold much prior to the filing of the written statement. Since Ext.C2(a) plan was prepared without the junction of the purchasers of the property, the Lower Appellate Court is justified in directing the plaintiff to take out a fresh commission for preparation of report and plan afresh. 7. The trial court shall dispose of the suit afresh, after affording an opportunity to the parties to adduce further evidence if any, untrammelled by the observations made against the parties by the Lower Appellate Court. The trial court shall dispose of the suit, as expeditiously as possible, at any rate within a period of nine months from the date of receipt of a copy of this -8- F.A.O.54/08 judgment. Parties shall appear before the court below on 25/6/2010. The plaintiff shall take immediate steps to implead the owners of the servient tenement and apply for fresh commission report and plan, without further delay. The parties shall maintain status quo as on today, till the disposal of the suit. The appeal is disposed of as above. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv