IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 OP(C).No. 2269 of 2011(O) -------------------------------------- OS.NO.41/2009 of MUNSIFF COURT, KOCHI .................... PETITIONER -------------------- GEORGE PETER, S/O. AVIRA GEORGE, AGED 62 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. BY ADV. SRI.K.L.JOSEPH SMT.P.SAREENA GEORGE RESPONDENT(S): --------------------------- 1. TOMY, S/O. AVIRA GEORGE, AGED 44 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 2. YESUDAS, S/O. AVIRA GEORGE, AGED 47 YRS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 3. FRANCIS XAVIER, S/O. AVIRA GEORGE, AGED 50 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 4. T.G.ANTONY, S/O. AVIRA GEORGE, AGED 55 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 5. MARIA SHEELA, W/O. JOHNY, AGED 43 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 6. ARUN MATHEW, S/O. MATHEW, AGED 24 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 7. MAGGIE JOSE, W/O. JOSE, AGED 59 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 8. ROOPA BONY, D/O. JOSE, AGED 35 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 2/- -2- OP(C)NO.2269/2011 9. GEORGE MATHEW, S/O. JOSE, AGED 27 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. 10. EDWIN PRASANTH, S/O. JOSE, AGED 24 YEARS, THERUVIPARAMBIL HOUSE, KUMBALANGHI P.O., KOCHI-7. R1 BY ADV. SRI.SABU GEORGE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2269/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.41/2009 P2 COPY OF THE I.A.783/2011 IN O.S.NO.41/2009. P3 COPY OF THE COUNTER AFFIDAVIT TO IA .783/2011. P4 COPY OF THE WRITTEN STATEMENT FILED BY SECOND DEFENDANT IN O.S.NO.41/2009. P5 COPY OF THE ORDER DATED 25/06/2011 IN IA.NO.783/2011 IN O.S.NO.41/2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2269 of 2011 --------------------------------------- Dated this 19th day of August, 2011 JUDGMENT As requested by counsel for petitioner, notice was ordered only to respondent No1. Later, though notice was ordered to be served on counsel appearing for other respondents in the trial court, no such notice is seen served. Learned counsel for petitioner submits that respondents 4 to 10 had filed application for impleadment along with petitioner and support him. Respondents 2 and 3 are defendants but they have not preferred any objection to the application for impleadment and hence notice to them may be dispensed with. Notice to respondents 2 to 10 is dispensed with at the risk of petitioner. 2. The issue concerns whether petitioner and respondents 4 to 10 are to be made parties to the suit – O.S.No.41 of 2009 of the court of learned Munsiff, Kochi. That is a suit filed by the first respondent and against respondents 2 and 3 for fixation of boundary of the suit property and recovery of possession. The suit was resisted by respondents 2 and 3. While so, petitioner and respondents 4 to 10 filed I.A.No.783 of 2011 to implead them as additional defendants contending that their O.P(C).No.2269 of 2011 -: 2 :- presence also is necessary for a proper adjudication of the dispute involved. They contended that properties which originally belonged to their father were settled in favour of themselves and respondents 1 to 3 by the father as per various settlement deeds. According to them, parties do not have that much extent of land as referred to in the settlement deeds. Along the southern side of property of respondents 1 to 3, a pathway was provided at a width of 3 meters for common use of all of them. Petitioners contended that if boundary is fixed as claimed by the first respondent that would reduce width of the pathway. Hence petitioner and respondents 4 to 10 sought their impleadment as additional defendants. 3. The application was resisted by the first respondent. He contended that impleadment of respondents 4 to 10 is not necessary for a decision of the suit since boundary is sought to be fixed between properties belonging to respondents 1 to 3. Learned Munsiff accepted that contention and dismissed I.A.No.783 of 2003. That order is under challenge. 4. Learned counsel for petitioner submits that though subsequent to the filing of I.A.No.783 of 2011 the Advocate Commissioner has submitted a report which is to the effect that O.P(C).No.2269 of 2011 -: 3 :- petitioner and others trespassed into a portion of the way above referred and constructed compound wall. It is pointed out by learned counsel that in the plan of the Commissioner, the property in rose colour is the property belonging to the petitioner. Learned counsel submitted that petitioner and others have to challenge the said finding of the Advocate Commissioner since otherwise, if boundary of the suit property is allowed to be put up on the southern side, that would reduce the width of the way and ultimately it may come out that as reported by the Advocate Commissioner, reduction in the width of the way was due to alleged trespass by petitioner and others. 5. Learned counsel for first respondent contends that impleadment of petitioner and respondents 4 to 10 is not necessary for adjudication of the dispute between respondents 1 to 3. 6. It is not disputed that the Advocate Commissioner has reported about alleged encroachment of the common way by petitioners and others. Prima facie there appears to be some point in the contention raised by petitioner that if boundary is fixed as prayed for by respondent No.1, it may affect the claim of petitioner and respondents 4 to 10 regarding their right to use O.P(C).No.2269 of 2011 -: 4 :- the pathway having a width of 3 meters. It is also the contention of learned counsel for petitioner that properties allotted to the various persons did not have that much extent as stated in the settlement deeds. In these circumstances I am inclined to think that petitioner and respondents 4 to 10 are necessary or atleast proper parties to the litigation for a proper, effective and final settlement of the dispute and to avoid multiplicity of suits. Hence notwithstanding that the first respondent is the master of the suit, I am inclined to think that petitioner and respondents 4 to 10 are to be impleaded as additional defendants. Resultantly this original petition is allowed. Ext.P5, order is set aside and I.A.No.783 of 2011 will stand allowed. Petitioner and respondents 4 to 10 are impleaded as additional defendant in the suit. The C.M.O of the court below shall carry out impleadment in the cause title of the plaint on receipt of a copy of this judgment and on taking orders of learned Munsiff. Learned Munsiff shall give opportunity to the petitioner and respondents 4 to 10 to file written statements and thereon proceed with the suit as provided under the law. (THOMAS P JOSEPH, JUDGE) Sbna/-