IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 FAO.No. 322 of 2011() --------------------- AS.65/2007 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.168/1999 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2 ------------------------------------------------------------------------------ 1.THANKAMMA & MARTHA, AGED 62 YEARS W/O.CHANDRAN, SUDHA BHAVANAM MATTAPPALLY, PALAMEL VILLAGE 2. SATHEESH AGED 38 YEARS S/O.CHANDRAN OF -DO- BY ADV. SRI.G.ANANTHANARAYANAN RESPONDENTS/APPELLANT/ADDL.APPELLANTS 2 & 3 AND RESPONDENTS 3 & 4/PLAINTIFF & DEFENANTS 3 & 4 ------------------------------------------------------------------------------------- 1. USHAKUMARI, AGED 42 YEARS W/O.RAJAN PILLAI HARISH BHAVANAM, KUZHIYATHU HOUSE MATTAPPALLY WARD, PALAMEL VILLAGE 690 504 2. HARISH & HARI RAJ, AGED 23 YEARS SA/O.RAJAN PILLAI OF -DO- PIN 690 504 3. HARISEE @ KRISHNA RAJ, AGED 21 YEARS, S/O.RAJAN PILLAI OF -DO- PIN 690 504 4. SUDHA, AGED 34 YEARS D/O.CHANDRAN, SUDHA BHAVANAM, MATTAPPALLY, PALAMEL VILLAGE 690 504 5. DINESH, AGED 32 YEARS S/O.CHANDRAN OF -DO- PIN 690 504 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- FAO No.322 of 2011 ------------------------------------- Dated this the 9th day of November 2011 Judgment This appeal is directed against the order dated 29.07.2011 in AS No.65/07 whereby the lower appellate court allowed the appeal and remanded the suit to the trial court for disposal in the light of the observations made by the lower appellate court. 2. Plaint A schedule property belonged to the plaintiff and her two minor children. The plaintiff has been in absolute possession and enjoyment of the property eversince they obtained the same by document dated 10.02.1992. They are residing in the property. It is claimed that the plaint schedule property was well bounded on all sides with survey stones. Suffice is to say that ultimately, the suit was laid for fixation of boundaries. 3. It appears that defendants 1 and 2 resisted the suit while the third defendant remained ex parte. FAO 322/11 2 Defendants 1 and 2 contested the suit. A plea was taken that the suit is bad for non-joinder of parties. It is also claimed that the real owners of B schedule property have not been made parties to the suit. It is contended that in the absence of necessary parties, an effective and workable decree could not be passed. It is also contended that 8 cents of puramboke land lies on the south western side of 14 cents of land purchased by the plaintiff from the husband of the first defendant. They also contended that there was an earlier suit as OS 81/99 which was dismissed and that suit precludes the plaintiff from agitating the claim again. 4. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B5 marked. Exts.C1 and C1(a) are the commissioner's report and plan. FAO 322/11 3 5. The trial court on an evaluation of the evidence, found that the plaintiff has succeeded in establishing his claim and accepted the commissioners report as the basis for the boundaries to be laid between the parties. However, quite unfortunately, the suit was dismissed on the ground of non-joinder of parties. According to the trial court, the children who were co- owners along with the plaintiff, were not made parties to the suit. 6. The plaintiff carried the matter in appeal as AS No.65/07 before the Additional District Court, Mavelikkara. The lower appellate court felt that the dismissal of the suit of the ground of non-joinder of necessary parties was unfair and the plaintiff ought to have been granted an opportunity to bring on record the proper parties. They also filed an IA at the appellate stage to implead the other co-owners. The lower appellate court allowed the appeal and remanded the matter to the trial court, directing the trial court to give an opportunity to the FAO 322/11 4 plaintiff to implead the other co-owners and also to cure the defect of dismissal of the suit against the fourth defendant. It is the above remand order that is challenged in this appeal. 7. On going through the judgment of the court below, it cannot be said that there is any illegality in the order passed by the lower appellate court. The trial court found almost all the issues on merits in favour of the plaintiff in the suit but it held that the suit is bad for non- joinder of necessary parties and dismissed the suit. First of all, if it was of the opinion that the suit was bad for non- joinder of necessary parties, an opportunity ought to have been given to the plaintiff to cure the defect. Apart from the above fact, a reading of the summarised plaint and the judgment of the trial court would show that the plaintiff had averred that plaint A schedule property in relation to which reliefs were sought for belong to her and her minor children. She did not lay exclusive claim over the property to the exclusion of other co-owners. It is well settled that FAO 322/11 5 one co-owner can sue on behalf of the other co-owners and the other co-owners need not be parties to the suit. The only exception is that if one co-owner sets up exclusive right, then the other co-owners are also necessary parties. It is without noticing all these facts that the trial court dismissed the suit. The lower appellate court has only granted an opportunity to the plaintiff to cure the formal defects which resulted in the dismissal of the suit. It is not possible to understand how the appellant herein is prejudiced by the remand order. It seems to be a just and proper order. The result is that this appeal is without any merits and it is liable to be dismissed. I do so. No costs. P.Bhavadasan, Judge sta FAO 322/11 6