The judgment establishes that non-joinder of necessary parties does not preclude claims regarding shared rights over a property pathway.

JUDGMENT :

EASWARAN S., J.

The plaintiff in a suit for fixation of boundary with respect to the plaint A schedule property over the plaint B schedule property and also for an injunction, has come up with the present ap- peal. The brief facts necessary for the disposal of the appeal are as follows:

O.S. No. 1341 of 2009 is instituted before the Additional Munsiff Court - II, Thrissur on the allegation that the defendants are trying to trespass into the plaint B scheduled property which is set apart by Exts. A1 and A2 documents on encroaching the plaint B schedule property which is set apart as a right of way by grant by the predecessor in interest of the plaintiff. In the plaint, it is further stated that the defendants were trying to trespass into the property on 30.05.2009 and in the above said arguments, the defendants have no right to do so. For the same relief, on 10.07.1996, the plaintiffs admitted that, they had filed O.S. No. 1639 of 1997 and that the same was dismissed for non-payment of Court fee. It was further contended that the aforesaid dismissal will not preclude the plaintiff from claiming a fresh suit. Accordingly, it was prayed that, the plaintiff be allowed to fix the boundary in respect of the plaint A schedule property to that of the defendant’s property and consequently an injunction restraining the defendants from trespassing into the plaint B schedule property preventing them from altering the boundaries of the plaint B schedule property was also sought. On behalf of the plaintiff, Exts. A1 and A2 documents were produced and PW1 was examined. The 2^nd defendant alone contested the suit whereas defendants 1,3 and 4 remained ex parte. The 2nd defendant contended that the suit is bad for non- joinder of the parties inasmuch his wife, who is a co-owner of the properties is not made a defendant in the suit. It was further con- tended that, the dismissal of O.S. No. 1639 of 1997 will operate as res judicata for the plaintiffs to maintain the consequent suit. The 4^th defendant though filed a written statement, was set ex parte. The plaintiffs took out an Advocate Commissioner for measuring out the property who filed Exts.C1, C2 and C3 reports. Exts.C1(a) and C2(a) are the rough sketch and sketch prepared by the Taluk Surveyor. In Ext.C2(a), the Advocate Commissioner identified the properties of the plaintiffs’, defendants 1, 2 and 4, and also the B schedule pathway. When the Advocate Commissioner demarcated the properties as above, it was found that a strip of land in the eastern side of the plaint A schedule property was in the possession of the 4^th defendant and towards the southern side of plaint A schedule property, a strip of land was lying vacant without having any specific boundary fixed for the pathway (B schedule). The Trial Court, on appreciation of oral and documentary evidence came to the conclusion that the suit is bad for non-joinder of parties since the wife of the 2^nd defendant was not impleaded as an additional defendant in the suit despite an objection being created in this regard by the 2^nd defendant in his written statement. The Trial Court further found that the description of the property of the 2^nd defendant in the schedule to the plaint is also required. Thus, the suit was dismissed. Aggrieved, the plaintiff carried forward the challenge in A.S. No. 40 of 2016 before the III Additional District Court, Thrissur which was dismissed on 07.01.2019 and hence this appeal.

2. When the appeal was admitted to the file, this Court framed the following questions of law;

a) Have the Courts below erred in finding that the suit is bad for non joinder of necessary parties?

b) Had not the Courts below erred in dismissing the suit as well a