Disposed

Bhanumathi v. Kumaraswamy

Kerala HC7 Jan 2022FAO (RO)/37/2021

Case brief

AI extract

What is this about?

This judgment dismisses two appeals filed against a remand order in two connected injunction suits. The High Court held that the suits cannot be maintained without impleading the Devaswom, the actual owner of the property, to properly adjudicate the right of way claim. Consequently, the remand order was upheld without interference.

What did the court decide?

Both appeals dismissed with no costs; parties at liberty to amend plaints.

Bhanumathi Vs Kumaraswamy — Property and Title | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943

¶5

FAO (RO) NO. 37 OF 2021

¶6

AGAINST THE JUDGMENT AND DECREE DATED 16/03/2019 IN OS 748/2009 OF
PRINCIPAL SUB COURT, PALAKKAD

¶7

AGAINST THE JUDGMENT AND DECREE DATED 28/07/2021 IN AS 114/2019 OF
DISTRICT COURT, PALAKKAD

¶8

APPELLANTS IN F.A.O.-RESPONDENTS 1,2 & 4 IN A.S.-DEFENDANTS 1,2 & 4

¶9

IN SUIT:

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1 BHANUMATHI, AGED 52, W/O.SUNDARASWAMY, KARADIPARAKALAM, KUNNAMKATTUPATHY, VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 555.

¶11

2 SUNDARASWAMY, AGED 65, S/O.NARAYANASWAMY, KARADIPARAKALAM, KUNNAMKATTUPATHY, VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 555.

¶12

3 SAMBATH, AGED 64, S/O.PAZHANIAPPAN, KARADIPARAKALAM, KUNNAMKATTUPATHY, VANNAMADA, 9/360, KOZHIPATHY VILLAGE, CHITTUR TALUK,PALAKKAD DISTRICT - 678 555. BY ADVS.P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER

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RESPONDENTS IN F.A.O-APPELLANT & RESPONDENT NO.3 IN A.S – PLAINTIFF &

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3RD DEFENDANT IN SUIT:

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1 KUMARASWAMY, AGED 63 YEARS S/O.CHELLAMUTHU KOUNDER, KARADIPARA, KOZHIPATHY VILLAGE, VANNAMADA, CHITTUR TALUK, PALAKKAD DISTRICT - 678 555.

¶16

2 MANI, AGED 57 YEARS, S/O.VELUSWAMY KOUNDER, KARADIPARAKALAM, KUNNAMKATTUPATHY, VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 555. BY ADVS. RAJESH SIVARAMANKUTTY SRI.ARUL MURALIDHARAN

¶17

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
ORDERS ON 07.01.2022, ALONG WITH FAO (RO).38/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

¶18

FAO (RO) Nos.37/2021, 38/2021

¶19

¶20

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶21

PRESENT

¶22

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶23

FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943

¶24

FAO (RO) NO. 38 OF 2021

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AGAINST THE JUDGMENT AND DECREE DATED 16/03/2019 IN OS 431/2010
OF PRINCIPAL SUB COURT, PALAKKAD

¶26

AGAINST THE JUDGMENT AND DECREE DATED 28/07/2021 IN AS 115/2019
OF DISTRICT COURT, PALAKKAD

¶27

APPELLANT/PLAINTIFF:

¶28

1BHANUMATHY, AGED 52,
W/O.SUNDARASWAMY, KARADIPARAKALAM, KUNNAMKATTUPATHY,
VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT - 678 555.

¶29

2SAMBATHKUMAR, AGED 60,
S/O.PAZHANIAPPAN, KARADIPARAKALAM, KUNNAMKATTUPATHY,
VANNAMADA, 9/360, KOZHIPATHY VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT - 678 555.

¶30

BY ADVS.
P.B.KRISHNAN
P.B.SUBRAMANYAN
SABU GEORGE
B.ANUSREE
MANU VYASAN PETER

¶31

RESPONDENT IN F.A.O – APPELLANT IN A.S – DEFENDANT IN SUIT:

¶32

KUMARASWAMY, AGED 63 YEARS
S/O.CHELLAMUTHU KOUNDER, KARADIPARA, KOZHIPATHY
VILLAGE, VANNAMADA, CHITTUR TALUK, PALAKKAD DISTRICT -
678 555.

¶33

BY ADVS.

¶34

RAJESH SIVARAMANKUTTY
ARUL MURALIDHARAN

¶35

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR ORDERS ON 07.01.2022, ALONG WITH FAO (RO).37/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

¶36

FAO (RO) Nos.37/2021, 38/2021

¶37

¶38

JUDGMENT

¶39

It is against the order of remand in two suits which
were tried together and disposed of by a common judgment,
the appellant came up. The parties hereinbelow referred
in their status in the leading case-OS No.748/2009, a
suit for injunction simplicitor which was dismissed by
the trial court, wherein the appellant is the plaintiff.
The connected suit-OS No.431/2010 which is also a suit
for injunction simplicitor was decreed by the trial court
in which the appellant is the defendant.

¶40

2. The dispute pertains to a way claimed by the
appellant over the property belonging to the Devaswom.
Devaswom is not a party to the suit. It is fairly
submitted by the counsel that the plaintiff in the
leading case is not claiming any prescriptive right over
the property. As such, it is not at all necessary to
implead the real owner of the property, the Devaswom in
the party array of the suit. The suit is against the

¶41

FAO (RO) Nos.37/2021, 38/2021

¶42

¶43

defendant to injunct him not to obstruct the user of the
way by the plaintiff. It is submitted that the defendant
has no right to object the user of the way. Inter alia,
it is contended that it is a public way and hence no
specific right need to be pleaded in order to maintain a
suit of this nature.

¶44

3. It is well settled that the plaintiff is the
master of the suit and in order to get any relief, he
must show his entitlement especially when it is admitted
that the suit was filed with respect to the property not
owned by the plaintiff. Admittedly the property belonged
to the Devaswom over which the plaintiff did not have any
right, title or interest except the claim of right of way
based on the contention that it is a public way, for
which necessarily there should be an adjudication by
making the owner of the property in the party array. The
contention raised by the counsel that they did not raise
any prescriptive right of way against the defendant since
he is not the owner of the property cannot be sustained.
In order to bring up a suit claiming injunction the

¶45

FAO (RO) Nos.37/2021, 38/2021

¶46

¶47

plaintiff has to show his entitlement and the right to
claim the relief and if it is against the property owned
by somebody else they should be made as a co-plaintiff or
co-defendant in the suit without which no injunction suit
can be maintained, even against a stranger. There is no
substantial prayer in both the suits. Hence, a blanket
injunction granted in the connected suit without
adjudicating the respective entitlement cannot be
sustained. Hence, the order of remand deserves no
interference. Parties are at liberty to amend the
plaint, if it is found necessary and to implead the
parties so as to have a proper adjudication and
determination of the dispute involved. Parties shall
appear before the trial court on 31.01.2022.

¶48

Both the appeals are dismissed accordingly. No
costs.

¶49

Sd/-

¶50

P.SOMARAJAN JUDGE

¶51

msp

Bhanumathi v. Kumaraswamy

Case brief

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Bhanumathi v. Kumaraswamy

Case brief

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