The petitioner is the plaintiff in O.S.No.584/01 on the files of the Munsiff's Court, Muvattupuzha, as well as the petitioner in I.A. No.3408/09 filed therein. The above original suit is one for demarcation and fixation of boundary and for consequential prohibitory injunction restraining the defendants from altering the lie of the property or the way which leads to plaint A schedule property. After hearing the parties and recording the entire evidence, when the case was posted for judgment , the learned Munsiff passed an order remitting the commission report already prepared and produced before the court, directing the plaintiff to take out a fresh commission with further direction as to how the properties are to be identified. It is also found that the suit was bad for non joinder of necessary parties and directed the plaintiff to implead owners of the properties lying adjacent to the petitioner's share, according to the partition deed. The said order was challenged by the petitioner before this Court in WP(C) No.29933/09 and this Court, after hearing both parties, directed the petitioner to file a review petition expressing the grievance highlighted before this Court, before the Munsiff Court and the Munsiff Court was further directed to dispose the review petition to be filed by the petitioner. In compliance with the observation of this Court, the petitioner filed I.A. No.3408/09 to review the direction issued in the order dtd.28-8-09. After considering the contentions raised in the review petition, the learned Munsiff passed the impugned order directing the petitioner to implead necessary parties to the suit. The legality and propriety of the said order are under challenge in this writ petition. 2. The learned counsel for the petitioner advanced arguments challenging the finding that the suit is bad for non joinder of necessary parties. The learned counsel further contends that in view of the reliefs sought for, no other party need be impleaded in the suit. It is also contended that the suit is not one for fixation of boundary. It is for the partition and also for a prohibitory injunction restraining the defendants from changing the nature of the property as well as the pathway, till partition is effected.
3. Per contra, the learned counsel for the respondents advanced arguments to justify the findings in the impugned order. According to him, the suit is one for fixation of boundary and the owners of the property which is lying adjacent to the petitioner's share, are necessary parties for fixing the boundary. It is also argued that no measurement was effected before the partition. Therefore, the presence of the adjacent property owners are necessary for proper and effective determination of the matter in issue involved in the original suit.
4. Heard both sides. Having regard to the arguments advanced at the Bar, the short question that arises for consideration is, whether there is any illegality or impropriety in the finding that directed the petitioner to implead the owners of adjacent properties as necessary parties in the suit?
5. In the light of the arguments advanced by the learned counsel for the petitioner, I have meticulously considered the reliefs sought for in the original suit. Apparently, I find that, prayer No.(1) is one for fixation of boundary and the suit is not for partition and injunction alone, as submitted by the learned counsel for the petitioner. In the earlier order passed by this Court in W.PC) No.29933/09 also, this Court dealt with the matter in a view that the suit is one for fixation of boundary. In para 2 of the Appeal Memorandum also, the petitioner admitted that the suit is one for demarcation of boundary. In the above view, I find that the argument advanced by the counsel for the petitioner is liable to be rejected at the threshold and I do so. As far as the suit for fixation of boundary is concerned, the persons holding the properties which are lying adjacent to the property, for which fixation of boundary is sought for, are necessary parties and I also concur with the findings of the trial court. In the above view, the findings in the impugned order dated 10-3-2010 in I.A.No. 3408/09 are perfectly justifiable and there is no illegality or impropriety in the said findings.
In the result, this Writ Petition is dismissed.
Sd/-
(K.HARILAL, JUDGE)
okb.