IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 CRP.No. 513 of 2010() --------------------- CMA.5/2010 of SUB COURT, PERUMBAVOOR OS.100/2008 of MUNSIFF COURT, PERUMBAVOOR (IA 1760/2009) .................... REVN. PETITIONER/APPELLANT/PETITIONER: ----------------------------------------- M.P.VARKEY, S/O.PAILY, MAMBAKKATTU HOUSE, KUMMANODU KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK-683562 BY ADV. SRI.P.K.BEHANAN SRI.ARUN PAUL JACOB RESPONDENTS/DEFENDANTS/PLAINTIFFS: -------------------------------------- 1. KOCHUPATHUMMA, W/O.AHAMMED PILLAI, PIRAMBILLYKUDY HOUSE, VALAPPIL THACHAYIL, CHELAKKULAM KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK-683562 2. KADARKUNJU, S/O.AHAMMED PILLAI, PIRAMBILLYKUDY (H), CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK-683562 3. MUSTAFA, S/O.AHAMMED PILLAI, PIRAMBILLYKUDY (H), CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK-683562 4. HASSANKUNJU, S/O.AHAMMED PILLAI, PIRAMBILLYKUDY (H), CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK-683562 5. KADEEJA, D/O.AHAMMED PILLAI, PIRAMBILLYKUDY (H), CHELAKKULAM KARA, KIZHAKKAMBALAM VILLAGE, RESIDING IN VALAPPIL THACHAYIL, CHELAKKULAM KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK-683562 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.513 of 2010 --------------------------------------- Dated this 30th day of September, 2010 ORDER This revision is in challenge of judgment of learned Sub Judge, Perumbavoor in C.M.A.No.5 of 2010 confirming the order passed by learned Munsiff, Perumbavoor on I.A.No.1760 of 2009 in O.S.No.100 of 2008. Respondent Nos.9 to 13 filed O.S.No.100 of 2008 for a declaration of their right of easement by grant over plaint B schedule way and injunction against respondent Nos.1 to 8 interfering with their right of access. They claimed that plaint A schedule belonged to them and that their tarvad house is situated in the said property. Almost at a time when the suit was to be included in the list for trial, petitioner filed I.A.No.1760 of 2009 for his impleadment as additional defendant No.9 claiming that he is enjoying the right of easement through plaint B schedule way and in continuance of that, through the way in plaint A schedule. He claimed that he is a necessary or a proper party to the suit. Learned Munsiff found against that and dismissed the application. That order was challenged in C.M.A.No.5 of 2010. Learned Sub Judge also did not interfere with the order of learned Munsiff and dismissed the appeal. Hence this revision. It is contended by C.R.P.No.513 of 2010 : 2 : learned counsel that on the facts and circumstances petitioner ought to have been impleaded so that he could make a counter claim in the suit and get relief in respect of his cause of action. 2. I am afraid, the C.M appeal was not maintainable since application for impleadment was under Order 1 Rule 10(2) of the Code of Civil Procedure (for short, “the Code”). An order on that application is not made appealable under Order 43 of the Code. Hence decision of the learned Sub Judge is without jurisdiction. Therefore I consider correctness of the order on I.A.No.1760 of 2009 in this revision. 3. Respondent Nos.9 to 13 claimed a right of easement by way of grant over plaint B schedule which according to them belonged to respondent Nos.1 to 8. According to the petitioner, he has a right of access through plaint B schedule as well as through plaint A schedule in continuation of the said way (plaint B schedule). That is an independent right which petitioner has against respondents and, if that right is infringed he gets an independent and separate cause of action to sue those persons who infringed his right. Right of easement is independent and personal to the person concerned and in that view of the matter to decide the controversy involved in O.S.No.100 of 2008 petitioner is not a necessary party nor could petitioner be said to be a proper party. C.R.P.No.513 of 2010 : 3 : Petitioner has a contention that he has got a right through plaint B schedule way and in continuance of that, through plaint A schedule. If that right is infringed by anybody it is open to the petitioner to enforce that right by filing a separate suit. I do not find reason to interfere with I.A.No.1760 of 2009. Without prejudice to the right of petitioner to seek appropriate relief by instituting fresh suit as provided under law this petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-