IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 OP(C).No. 306 of 2010(O) ------------------------ OS.269/2006 of MUNSIFF COURT,VARKALA .................... PETITIONER: -------------------- KHASIM, AGED 69 YEARS, S/O.DHAVEEDH,KIZHAKKEKUNNAM,ODAYAM,EDAVA VILLAGE, CHIRAYINKEEZHU TALUK,TRIVANDRUM. BY ADV. SRI.J.JAYAKUMAR SRI.S.JIJI RESPONDENTS: --------------- 1. ABDUL HAKIM, PINNAVILA VEEDU, EDAVA , CHIRAYINKEEZHU,THIRUVANANTHAPURAM DISTRICT-695311 2. ABDUL MAJEED,KUZHIVILA VEEDU, MANTHARA,EDAVA , CHIRAYINKEEZHU,THIRUVANANTHAPURAM-695311 DISTRICT 3. ABDUL RASHEED,K.B.MANZIL,KURAKKANNI, VARKALA,THIRUVANANTHAPURAM DISTRICT-695141 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.306 of 2010 --------------------------------------- Dated this 13th day of October, 2010 JUDGMENT Pursuant to a publication found in a vernacular daily purportedly under Order I Rule 8 of the Code of Civil Procedure (for short, “the Code”) petitioner approached the court for his impleadment as additional defendant. That application was dismissed as per Ext.P4, order stating that his presence is not necessary for adjudication of the dispute between parties to the suit and that respondent Nos.1 to 3/plaintiffs have not pleaded any cause of action against the petitioner. That order is under challenge. Learned counsel contends that petitioner was entitled to be impleaded as a party in view of sub rule (3) of Rule 8 of Order I of the Code. At any rate, in view of the individual right he claims for title over the suit property by adverse possession, he ought to have been impleaded as a proper party for proper adjudication of the dispute. 2. Respondent Nos.1 to 3 claimed that suit properties belonged to the Shaka of their tarvad and there were two thavazhies in that Shaka. Properties were partitioned between members of the two thavazhies as per document No.1472 of 1953 O.P(C).No.306 of 2010 : 2 : and the suit property was allotted to the thavazhy of Aduva Ummal as A schedule of the partition deed while the B schedule to the partition deed was allotted to the thavazhy of Khadiri Ummal. The suit property is described as 1.18acres in survey 1017/B. Respondent wanted a decree for prohibitory injunction against defendants (who are not made parties to this proceeding) alleging that they tried to trespass into the suit property. It would appear that a publication under Order I Rule 8 of the Code was made for the reason that there are so many members in the thavazhy of respondents and obviously since respondents thought it difficult to make all of them parties to the suit either as plaintiffs or defendants. It is pursuant to that publication that petitioner entered appearance with the application for impleadment. 3. I am not going into the question whether a publication under Order I Rule 8 of the Code was permissible, required or necessary in the way that rule is framed and the object it is intended to achieve. But, the suit is merely one for prohibitory injunction and even as per plaint averments publication under Order I Rule 8 of the Code was made only because there are several members in the thavazhy of respondents and not to invite any objection to the suit from the public at large. Hence petitioner could not have sought impleadment under sub rule (3) of Rule 8 of Order I of the code. 4. Then the question is whether on the claim made by O.P(C).No.306 of 2010 : 3 : petitioner he is required to be made a party in the suit. In the affidavit in support of the application for impleadment he stated that he has perfected title over the property by adverse possession. Respondent Nos.1 to 3 claimed to be in possession of the property . Petitioner claimed that he has perfect title by adverse possession. Respondent Nos.1 to 3 have not pleaded any cause of action against petitioner. This being a suit for injunction the suit is to be decided on the strength of possession if any, respondents have on the date of suit. Impleadment of petitioner is not necessary to adjudicate that question. If at all petitioner is in possession and a decree is passed without him on the party array, it is open to him to contend that decree is not binding on him. It is also open to the petitioner to file a separate suit if he wants to establish the title and possession he has claimed over the property. In the given set of fact petitioner is neither a necessary nor a proper party in the sense that the junction of petitioner is not necessary for adjudication of the dispute or to give an effective decree in favour of the respondents. Respondents have to win or loose on the strength or weakness of the case pleaded by them. I do not find reason to interfere with the order passed by learned Munsiff. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-