A co-owner can approach the court to retain their right over a common property without hindrance from other co-owners, and the non-joinder of necessary parties does not necessarily invalidate the suit, especially when one co-owner is preventing the rights of other co-owners.

Heard, Mr.V.Meenakshi Sundaram, learned senior counsel for Mr.R.Murugan, learned counsel appearing for the appellant and Mr.S.Xavier Rajini, learned counsel appearing for the respondents.

2. This appeal is filed against the Judgment and Decree passed in A.S.No.14 of 2014 and A.S.No.24 of 2014 dated 06.11.2017 on the file of the learned II Additional Subordinate Judge, Nagercoil, Kanyakumari District modifying the Judgment and Decree passed in O.S.No.8 of 2011 dated 16.12.2013 on the file of the learned I Additional District Munsif, Nagercoil, Kanyakumari District.

3. The appellant herein is the defendant and the respondents herein are the plaintiffs in the suit. The respondents herein have filed a suit in O.S.No.8 of 2011 before the learned I Additional District Munsif, Nagercoil seeking for a prayer of permanent injunction restraining the defendant from dumping stones and sands over the plaint 'B' property in order to raise the level and for a mandatory injunction directing the defendant to remove the stones and sands from the southern most portion of the plaint 'B' schedule property. The learned I Additional District Munsif, Nagercoil has partly decreed the suit with condition that the plaintiffs shall approach the Municipality and to take steps to level or form road with provisions for drainage and water channel in the plaint 'B' schedule pathway individually or jointly within six months from the date of decree.

4. Against the Judgment and Decree, the appellant herein has filed an appeal in A.S.No.14 of 2014 and the defendant has filed an appeal in A.S.No.24 of 2014 before the II Additional Sub Judge, Nagercoil. The learned Sub Judge, Nagercoil has dismissed the appeal in A.S.No.14 of 2014 and has allowed the appeal in A.S.No.24 of 2014 by modifying the Judgment and Decree passed by the trial Court. The learned Sub Judge has granted the relief of permanent injunction in B schedule property and also granted a relief of mandatory injunction to remove sands and stones from the southern most portion of the plaint B schedule property. Aggrieved by this order, the appellant herein has filed the second appeal.

5. The case of the plaintiffs/respondents is that the plaintiffs are the absolute owner of A schedule property and the plaint B schedule property is a common pathway. Originally the plaint A and B schedule properties and more area belonged to one Narayanan Nair who got 65 cents of land in old survey No.3282 co-related to New survey No. 761/2 of Vadasery Village. He had divided the property into western portion and eastern portion and the western portion was again divided into three plots. Out of the three plots, one plot with an extent of 7.810 cents of land and right of pathway in 695 sq. links were sold out to one Geetha on 03.11.1983.

6. The owner had set apart the plaint 'B' schedule property as a pathway for common enjoyment. Geetha has sold her right over the schedule properties to one Indira Devi on 14.09.1984. The said Indira Devi in turn has sold away her right to the plaintiffs' mother and they used the path way as a common path way. The plaintiff's mother constructed a house in the 'A' schedule property. The building was numbered as No.6/84B1 of Peruvilai Panchayat. The plaintiffs' mother has executed a sale deed on 17.09.2004 in favour of the second plaintiff in respect of northern side vacant portion of the plaint A schedule property. She has executed a settlement deed on 04.11.2004 in favour of the plaintiffs. After the settlement deed, the plaintiffs and their brothers are enjoying the house as co-owners.

7. The defendant has purchased the plot on the eastern side in the 65 cents and he has started construction work. He was also using B schedule property as a path way. On 22.12.2010, the defendant has attempted to raise the level of plaint B schedule property to a height of 4 feet with sand and stones and that was prevented by the plaintiffs. On 27.12.2010, the defendants has brought the stones and sands d