Plaintiff in O.S.No.21/2010 before the Court of Munsiff, Pala, a suit for injunction simplicitor, is the appellant. He challenges the lower appellate court's judgment and decree, whereby the decree in the suit was set aside and the matter was remanded to the trial court for jointly trying with another suit pending before it.

2. For clarity of expression, the parties are hereinafter referred to as the "plaintiff" and "defendants". The suit was decreed by the trial court, granting a permanent prohibitory injunction decree, restraining the defendants from trespassing into the plaint item Nos.1 and 2 properties and from using any portion of the said properties as a pathway.

3. In the appeal, the lower appellate court found that O.S.No.18 of 2010 pending before the trial court should have been tried with this case. It further found that the defendants suffered prejudice on account of the fact that the suits were not tried together.

4. Subject matter in these two suits is said to be a pathway. According to the plaintiff, there is a public pathway running through the plaint item No.3, lying on the southern side of plaint item No.1 and 2. Plaint item No.3 belongs to the defendants. Per contra, the defendants contended that the public pathway is running thorough the plaintiff's property.

5. It is contended by the plaintiff that, a pathway originating from a public road on the western side of the plaint item No.1 and 2 passes through the northern side of the first defendant's property and it reaches on the bank of a water channel. There is a small bridge provided for crossing the water channel towards east and the way then proceeds further. The plaintiff further contended that, this way is a public way. The defendants are trying to shift the way to the northern side, so as to save their property and to grab a portion of the plaintiff's land for using as a public way.

6. First defendant contended that the plaintiff attempted to block the public way running through the southern portion of his property. Hence, a suit under Section 91 of the Code of Civil Procedure, 1908 (the Code, for short) has been filed seeking a permanent prohibitory injunction against the plaintiff and it is pending as O.S.No.18 of 2010.

7. It is an admitted fact that, at the time when this suit was heard and disposed of, O.S.No.18/2010 was pending. Learned counsel for the plaintiff contended that an application under Section 151 of the Code for joint trial was filed by the plaintiff before the trial court. It was dismissed by the court as the defendants stiffly opposed the petition. Countering the application, they contended that all the parties in O.S.No.21/2010 are not parties to O.S.No.18/2010. They further contended that the nature of reliefs claimed in both the suits are different. However, the joint trial application was dismissed by the trial court after hearing both sides. The question then arises for consideration is, whether remand of the case for joint trial at the instance of the defendants is legally allowable, that too without considering the legal principles?

8. Heard Sri.M.Narendra Kumar, the learned Counsel appearing for the plaintiff and Sri.G. Sreekumar the learned Counsel appearing for the defendants.

9. Sri.Narendra Kumar contended that the remand order is unsustainable, both on facts and law. According to him, the plaintiff, with all earnestness, attempted to get the suits jointly tried. However, that was strongly opposed by the defendants and they got the application dismissed. Thereafter, when the suit was decreed, they raised a ground before the lower appellate court that, the trial court should have tried these two suits jointly. According to Sri.Narendra Kumar, they are estopped from raising such a grievance before the lower appellate court.

10. Controverting this argument, Sri.G. Sreekumar submitted that, it was an unwise decision on the part of the defendants to oppose the joint trial application. Nonetheless, it may not legally preclude