IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WP(C).No. 2098 of 2008(Y) ------------------------- OS.100/2005 of SUB COURT, PAYYANNUR OS.253/2007 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER: ------------ EDAVALATH KOLIYATTU SREEDEVI, D/O RAMAN NAIR, CHUZHALI AMSOM, DESOM, TALIPARAMBA TALUK. BY ADV. SRI.G.GIREESH SRI.MILLU DANDAPANI RESPONDENTS: ---------------- 1. VARIKKATTU MALISSERY ILLATH KRISHNAN NAMBOODIRI, S/O HARIJAYANTHAN NAMBOOTHIRI, AGED ABOUT 42 YEARS, BUSINESS, 'BABI NILAYAM', KATHIROOR AMSOM,DESOM, THALASSERY TALUK. 2. VARIKKATTU MALISSERY ILLATH RAMAN NAMBOODIRI, S/O KUBERAN NAMBOOTHIRI, TALIPARAMBA AMSOM, DESOM, ADIKKUMPARA. 3. VARIKKATTU MALISSERY ILLATH VAMANAN NAMBOODIRI, S/O HARIJAYANTHAN NAMBOODIRI, BUSINESS, OPP. SREEPURAM ENGLISH MEDIUM SCHOOL, KANNUR-4. 4. VARIKKATU MALISSERY ILLATH HARIDASAN NAMBOODIRI, S/O HARIJAYANTHAN NAMBOODIRI, OPP. SREEPURAM ENGLISH MEDIUM SHCOOL, KANNUR-4. 5. KAKKADANTAKATH PUTHIYAPURAYIL ASEES, S/O E.P.MUHAMMED, MAYYIL AMSOM, DESOM. 6. KUNNIL MUKUNDAN, S/O OTHENAN NAIR, TALIPARAMBA AMSOM, TRICHMBARAM DESOM, NETHAJI NAGAR HOUSING COLONY, TALIPARAMBA TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 2098 OF 2008 = = = = = = = = = = = = = = = Dated this the 17th day of January, 2008. J U D G M E N T This writ petition is filed against the order of the Subordinate Judge, Payyannur in I.A.790/07 in O.S.100/05. It is an application filed by a stranger to get himself impleaded in a partition suit under Order 1 Rule 10 (2) CPC. The suit is one for partition with reference to the plaint A schedule item Nos.1 and 2. Item No.2 is shown as having a measurement of 7 acres and 24 cents. The petitioner would contend that it is only having an extent of 6.26 acres and under the guise of the partition suit they are attempting to get into his property and further it is submitted that he had already instituted a suit for injunction against these persons before the Munsiff Court, Thaliparamba for an injunction. So, the present party has already taken steps to safeguard his interest in the property with the alleged obstructors or rival claimants on the party array. When it is so there is no W.P.C 2098 OF 2008 -:2:- necessity for him to implead him in the partition suit also and the judgment in the other civil Court certainly can be a piece of document that can be considered by the Court at least at the stage of final decree proceedings. Without the petitioner on the party array if any judgment is obtained certainly it may not be binding. Therefore I make it clear that the petitioner herein need not be worried about the result of the partition suit because it will not be binding on him and if anybody attempts to touch his property which according to him belongs to him exclusively then certainly he can request the Court to consider that claim at least in the form of claim petition so far as this case is concerned. Therefore, since he had already instituted a suit for injunction with other parties on record there need not be even that apprehension. Therefore I do not want to interfere with the decision rendered by the Subordinate Judge. 2. The learned counsel had also relied upon a decision of the Orissa High Court reported in Daitari Prasad Naik v. Umakanta Nayak (AIR 1971 Orissa 44) wherein W.P.C 2098 OF 2008 -:3:- the Court considered a question where a third person claiming title to the property adverse to the plaintiff and defendant is a necessary party. So far as this case is concerned already the party has moved a suit to protect his right with others on record and certainly the decision on that will be binding on the parties and therefore there need not be any impleading at this stage. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-