~ ~ ~ ~ ~ ~ ~ ~ ~ Aggrieved by judgment and decree dated 16.10.2009 in A.S.58/2007 passed by the Additional District Court-II, Thiruvananthapuram, the appellants/plaintiffs have come up in appeal. 2. The appellants herein had originally filed the suit as O.S.290/1999 before the Subordinate Judge's Court, Thiruvananthapuram for a decree of perpetual injunction against the sole defendant, City Corporation of Thiruvananthapuram. The injunction sought for was one for restraining the City Corporation from committing trespass into the plaint B Schedule pathway, which is allegedly a portion of plaint A Schedule property belonging to the plaintiffs, and from interfering with the right of the plaintiffs over plaint B Schedule item.
3. It seems that the City Corporation has filed a written statement admitting that B Schedule pathway has not been surrendered so far to the Corporation and, therefore, they are not in a position to carry out any maintenance works over the said pathway. At that juncture, additional defendants 2 to 5 have stepped in and filed an application for getting themselves impleaded in the suit, as according to them, they are also necessary parties to the suit. They were also impleaded and the suit was proceeded with. Ultimately, the Subordinate Judge's Court, Thiruvananthapuram has chosen to dismiss the suit by finding that the pathway shown as B Schedule item is a public pathway. Aggrieved by the dismissal, A.S.58/2007 was filed before the District Court, Thiruvananthapuram. The learned Additional District Judge has chosen to set aside the judgment and decree impugned in the said appeal and to remit the matter to the trial court for fresh disposal in accordance with law, after upsetting the finding entered by the trial court that the pathway in question is a public pathway.
4. The additional defendants had contended that the pathway in question is a public pathway over which the public have got right to use as a thoroughfare. At the same time, it seems that even though it has not been specifically contended, the additional defendants have a case that they have the right to use a pathway having 20 links width as is evident from their title deeds and further that over half the portion of the pathway comes in front of their properties, they have title also. They have produced their title deeds in appeal before the court below.
5. Heard the learned counsel for the appellants Sri.V.P.K.Panicker and the learned counsel for the respondents.
6. The learned counsel for the appellants has argued that additional defendants 2 to 5 have no business to come on record as the appellants had never claimed any relief against them. Per contra, the learned counsel for respondents 2 to 5 has argued that as per the title deeds in respect of their properties, which are situated at the side of the very same pathway, they have got right to make use of the entire pathway, through easement by grant and further that they have got title over a width of 10 links over that portion of the pathway which comes in front of their properties.
7. On a perusal of the plaint, it seems that a pathway having 8 feet width is shown as B Schedule item. At the same time, the title deeds of respondents 2 to 5, which were executed by the first plaintiff, clearly show that a pathway having width of 20 links was set out for the use of the plaintiffs as well as respondents 2 to 5 and the wife of the 2nd respondent, who also purchased a piece of land. The court below cannot be found fault with in remitting the matter to the trial court for giving an opportunity to the appellants to get the B Schedule pathway identified.
Without a plan in respect of the plaint B Schedule item, any executable decree cannot be passed even if it is ultimately found that the appellants are entitled to have a decree. The pathway has to be identified and a plan has to be prepared by a Commissioner with the aid of a competent Surveyor. It is true that with the aid of the available records, the lower appellate court has made an observation that the finding entered by the trial court that the pathway in question is a public pathway is not correct and the pathway seems to be a private pathway. It is true that with the aid of available records and the arguments advanced by either side, the pathway seems to be a private pathway; at the same time, the plaintiffs cannot have exclusive right over the pathway. It seems that even the title deeds in respect of half the portion of the pathway lying in front of their properties have been transferred in favour of the 2nd respondent, his wife and the 3rd defendant. It seems that the lower appellate court has taken the view that the documents produced by respondents 2 to 5 are also required to be considered for entering a finding. The argument forwarded by the learned counsel for the appellants that the relief was sought for against the Corporation alone and, therefore, the other respondents are not necessary parties to the suit, is not legally sustainable. Even though the relief has been sought for as against the Corporation alone, it ultimately will affect the rights of the other respondents also over the pathway. Matters being so, they are necessary parties to the suit. Over and above it, it seems that the wife of the 2nd respondent has not been so far impleaded in the suit. In fact, she is also a necessary party to the suit.
8. On going through the impugned judgment and hearing either side, I do not find anything to interfere with the impugned judgment and decree. Matters have to be considered by the trial court in terms of the remand order. If so advised, the plaintiffs may be permitted to bring on record the wife of the 2nd additional defendant also in the party array.
In the result, this FAO is dismissed. No order as to costs. The parties shall appear before the Subordinate Judge's Court, Thiruvananthapuram on 17.11.2014.
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(B.KEMAL PASHA, JUDGE) aks/09/10 // True Copy // PA to Judge