The failure to join necessary parties in a suit claiming private pathway rights renders it unsustainable and fatal, while the burden of proof for public pathway status lies with the defendants.

JUDGMENT

This appeal arises out of the concurrent findings of the Principal Munsiff Court, Kasaragod, in O.S. No. 346/1999, a suit for a declaration that the pathway in question is a private pathway and does not belong to the public, as affirmed by the Subordinate Court, Kasaragod, in A.S. No. 62/2007.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaintiffs claim that 9.74 acres of land originally belonged to them as per sale deed dated 03.09.1957. There existed a residential house and other buildings in the aforesaid property. A portion of the plaint A schedule property is claimed by late K.Narayana by way of agricultural tenancy. A private road branching from NH-17 passes through R.S.Nos.111/1A, 112/2 and 112/1 of Kasaragod Kasba Village. The said pathway is marked as ‘R’ in the eye sketch produced along with the plaint. A branch road from road ‘R’ is marked as ‘R1’ in the eye sketch. Thus the plaintiffs claimed that the pathway covered by ‘R’ and ‘R1’ are private property and therefore, the defendants do not have any right over the same. The defendants 1 to 4, in collusion with the others, have put up bulbs and tube lights after drawing new electric wires on the electric posts planted by the side of the private road.

2.2. The defendants entered appearance and resisted the suit by contending that the actions taken by the Municipality was in good faith. The 5^th defendant, who got impleaded himself in the suit, raised a contention that the suit is bad for non-joinder of necessary parties inasmuch as several tenants were occupying the houses which are situated on either side of the pathway. Despite the said objection, the plaintiffs did not think it appropriate to implead the neighbouring residents who were using the pathway in question. Still further, the plaintiffs did not take out an Advocate Commissioner for inspection of the pathway. The 5^th defendant, on the other hand, filed an application seeking appointment of an Advocate Commissioner and pursuant to the said application, an Advocate Commissioner was appointed, who filed Ext.C1 report and Ext.C2 plan. In the said report, it is stated that various houses are situated on either side of the property and have been in the occupation of different persons. With these infirmities, the suit was taken up for trial. On behalf of the plaintiffs, Exts.A1 to A23 were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 to B12 were produced and DW1 was examined.

2.3. On a successful completion of the trial and on appreciation of the oral and documentary evidence, the trial court came to the conclusion that the suit is bad for non-joinder of necessary parties. Accordingly, the suit was dismissed. In addition to that, it was also found by the trial court that the plaintiffs failed to prove that the pathway in question is a private pathway and not a public way. Aggrieved, the plaintiffs preferred A.S.No.62/2007 before the Sub Court, Kasaragod, which was also dismissed by judgment dated 26.06.2012. Pertinently, before the first appellate court, the appellants herein had confined their claim to the right over the road marked as ‘R’ in the eye sketch produced along with the plaint. The first appellate court, on appreciation of the evidence adduced by the parties, concurred with the findings of the trial court and dismissed the appeal and hence, the present appeal.

3. Heard, Adv.R.Lakshmi Narayan – learned Senior Counsel appearing for the appellants, assisted by Adv.C.Muralikrishnan and Adv.P.B.Subramanyan – learned counsel appearing for the 5^th respondent.

4. Adv.R.Lakshmi Narayan – learned Senior Counsel appearing for the appellants, contended that the burden is on the defendants to prove that the pat