The High Court of Kerala disposed of two appeals against a remand order in suits for injunction regarding a way over Devaswom property. The court upheld the remand, stating that the plaintiff failed to show entitlement over unowned property and the real owner was not impleaded.
Both appeals dismissed with liberty to amend plaint and implead parties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943
FAO (RO) NO. 37 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 16/03/2019 IN OS 748/2009 OF
PRINCIPAL SUB COURT, PALAKKAD
AGAINST THE JUDGMENT AND DECREE DATED 28/07/2021 IN AS 114/2019 OF
DISTRICT COURT, PALAKKAD
APPELLANTS IN F.A.O.-RESPONDENTS 1,2 & 4 IN A.S.-DEFENDANTS 1,2 & 4
IN SUIT:
1 BHANUMATHI, AGED 52, W/O.SUNDARASWAMY, KARADIPARAKALAM, KUNNAMKATTUPATHY, VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 555.2 SUNDARASWAMY, AGED 65, S/O.NARAYANASWAMY, KARADIPARAKALAM, KUNNAMKATTUPATHY, VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 555.3 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 PETERRESPONDENTS IN F.A.O-APPELLANT & RESPONDENT NO.3 IN A.S – PLAINTIFF &
3RD DEFENDANT IN SUIT:
1 KUMARASWAMY, AGED 63 YEARS S/O.CHELLAMUTHU KOUNDER, KARADIPARA, KOZHIPATHY VILLAGE, VANNAMADA, CHITTUR TALUK, PALAKKAD DISTRICT - 678 555.2 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 MURALIDHARANTHIS 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:
FAO (RO) Nos.37/2021, 38/2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943
FAO (RO) NO. 38 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 16/03/2019 IN OS 431/2010
OF PRINCIPAL SUB COURT, PALAKKAD
AGAINST THE JUDGMENT AND DECREE DATED 28/07/2021 IN AS 115/2019
OF DISTRICT COURT, PALAKKAD
APPELLANT/PLAINTIFF:
1BHANUMATHY, AGED 52,
W/O.SUNDARASWAMY, KARADIPARAKALAM, KUNNAMKATTUPATHY,
VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT - 678 555.
2SAMBATHKUMAR, AGED 60,
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
RESPONDENT IN F.A.O – APPELLANT IN A.S – DEFENDANT IN SUIT:
KUMARASWAMY, AGED 63 YEARS
S/O.CHELLAMUTHU KOUNDER, KARADIPARA, KOZHIPATHY
VILLAGE, VANNAMADA, CHITTUR TALUK, PALAKKAD DISTRICT -
678 555.
BY ADVS.
RAJESH SIVARAMANKUTTY
ARUL MURALIDHARAN
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:
FAO (RO) Nos.37/2021, 38/2021
3
JUDGMENT
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.
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
FAO (RO) Nos.37/2021, 38/2021
4
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.
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
FAO (RO) Nos.37/2021, 38/2021
5
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.
Both the appeals are dismissed accordingly. No
costs.
Sd/-
P.SOMARAJAN JUDGE
msp
3 issues framed by the court
Whether an injunction suit can be maintained without impleading the real owner of the property.
Whether a right of way claim can proceed without adjudication of entitlement against the property owner.
Whether the order of remand in suits regarding public way user deserves interference.
Bhanumathy
Sambathkumar
Kumaraswamy
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court