IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 4361 of 2010(O) ------------------------- OS.354/2006 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER: --------------- VIJAYAN NAIR, S/O. KARUNAKARAN NAIR, VIJAYASARASIL, EZHUPUNNA MURI, EZHUPUNNA VILLAGE. BY ADV. SRI.B.PRAMOD RESPONDENTS: --------------- 1. K.R.SWAMINATHAN, S/O.RAMAN, KUMARAPURATH, EZHUPUNNA MURI, EZHUPUNNA VILLAGE. 2. SARASWATHI AMMA, D/O.LAKSHMIKUTTY, PULIYAZHATH,KUTHIATHODU VILLAGE, CHERTHAL TALUK. 3. N.R.CHANDRASEKHARAN,S/O.N.K.RAMAN, RAMAPURATH, EZHUPUNNA VILLAGE,CHERTHALA TALUK. ADV. SRI.T.K.PANKAJASHAN PILLAI FOR R3 SRI.GEORGE SEBASTIAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4361 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.NO.354/2006 OF THE ADDL. MUNSIFF COURT, CHERTHALA EXHIBIT P2 : I.A.No.4540/2009 IN O.S.NO.354/2006 OF THE ADDL. MUNSIFF COURT, CHERTHALA EXHIBIT P3 : OBJECTION FILED BY THE 3rd RESPONDENT TO EXT.P2 I.A EXHIBIT P4 : ORDER DTD 04.12.2009 IN I.A.No.4540/2009 IN O.S.NO.354/2006 OF THE ADDL. MUNSIFF COURT, CHERTHALA RESPONDENTS' EXHIBITS: EXHIBIT R3(a): TAX RECEIPT DTD 16.02.1996 ISSUED BY THE VILLAGE OFFICER, EZHUPUNNA TO THE 3rd RESPONDENT EXHIBIT R3(b): PUBLIC NOTICE DTD. 13.07.1999 PUBLISHED IN MALAYALA MANORAMA DAILY EXHIBIT R3(c): AGREEMENT DTD 27.12.2002 FOR THE PERIOD FRO, 27.12.2002 TO 31.03.2003 EXHIBIT R3(d): PERMISSION NO.KL-11-2003-(64) DTD. 06.01.2003 ISSUED FROM THE AQUA CULTURE AUTHORITY TO R3 EXHIBIT R3(e): AGREEMENT DTD 05.04.2003 FOR THE PERIOD FROM 01.04.2003 TO 31.10.2003 EXHIBIT R3(f): PAPER CUTTING OF THE PUBLICATION DTD 04.05.2005 PUBLISHED IN MALAYALA MANORAMA DAILY AT PAGE 6 EXHIBIT R3(g): CERTIFICATE OF REGISTRATION OF AQUA CULTURE FARM, REG.No.KL-11-2008 (0029) DTD 03.10.2008 ISSUED IN FORM-II, TO THE 3rd RESPONDENT True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.4361 of 2010 --------------------------------------- Dated this 01st day of October, 2010 JUDGMENT Respondent Nos.1 and 2 claiming to be riparian owners of a water chal asserted right over that chal by way of easement by prescription and filed a suit against respondent No.3 as O.S.No.354 of 2006 in the court of learned Additional Munsiff, Cherthala. Respondent No.3 filed written statement and raised a counter claim for a declaration and injunction as against respondent Nos.1 and 2 regarding their alleged user of the said water chal. While so petitioner filed Ext.P2, application (I.A.No.4540 of 2009) seeking his impleadment in the suit as additional defendant contending that he has right to take water from the chal in question and that counter claim is made in such way as to annihilate that right of his. That application though not resisted by respondent Nos.1 and 2 was opposed by respondent No.3. Learned Additional Munsiff as per Ext.P4, order dated 04-12-2009 has dismissed that application holding that petitioner is not a necessary or proper party for a decision of the dispute between respondent Nos.1 and 2 and respondent No.3. That order is under challenge in this petition under Article 227 of the W.P(C).No.4361 of 2010 : 2 : Constitution. Learned counsel for petitioner contends that a reading of written statement of respondent No.3 would show that he, in fact denied right of petitioner to use the water chal and in the circumstance, when petitioner is not on the party array a proper decision of the dispute is not possible. It is also possible that right of petitioner to use the water chal will be affected by the decision of the court. In the circumstance court below was not justified in dismissing Ext.P2, application for impleadment. Learned counsel for respondent No.3 contends that no relief is sought against petitioner in the counter claim which is solely directed against the claim made by respondent Nos.1 and 2 and to decide that dispute junction of petitioner is not required. Learned counsel has given me a copy of the written statement/counter claim filed by respondent No.3. 2. I have gone through the copy of written statement and counter claim. True, there is some reference to the petitioner also in the written statement in various paragraphs but, what the learned Additional Munsiff will be considering is the question whether relief prayed for by respondent No.3 in the counter claim could be allowed whatever be the averments in the written statement which refers to the petitioner. On going through the relief portion of counter claim it is seen that no relief which W.P(C).No.4361 of 2010 : 3 : might have a bearing on the claim made by petitioner over the water chal in question is claimed and instead, counter claim is directed against claim made by respondent Nos.1 and 2. Learned counsel for respondent No.3 at the time of hearing has submitted that in the counter claim no relief will be sought against petitioner. The above facts are sufficient to alley the apprehension raised by petitioner as to his alleged right being affected by any decision rendered in the suit. 3. In the light of the above I am not persuaded to think that petitioner is either a necessary or proper party to the suit. Hence learned Additional Musniff is justified in dismissing Ext.P2 application. Resultantly this petition is dismissed. Registry shall send a copy of this order to the learned Additional Munsiff, Cherthala for perusal. (THOMAS P JOSEPH, JUDGE) Sbna/-