Varkey vs Issac
2021 Latest Caselaw 19456 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE V.G.ARUN
 THURSDAY, THE 16TH DAY OF SEPTEMBER 2021/25TH BHADRA,
                            1943
                   OP(C) NO. 1391 OF 2021
    AGAINST THE JUDGMENT IN OS 154/2021 OF MUNSIFF
                COURT,MUVATTUPUZHA, ERNAKULAM
PETITIONER/S:

    1    VARKEY
         AGED 74 YEARS
         S/O. PURAVATH THACHAMALAYIL HOUSE, KAKKAD
         KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK,
         ERNAKULAM DISTRICT,PIN-686 664
    2    JOY
         AGED 67 YEARS
         S/O. PURAVATH THACHAMALAYIL HOUSE, KAKKAD
         KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK,
         ERNAKULAM DISTRICT,PIN-686 664
         BY ADVS.
         ALIAS M.CHERIAN
         BRISTO S PARIYARAM
         ANJALY ELIAS
         K.M.RAPHY


RESPONDENT/S:

    1    ISSAC
         S/O. PURAVATH THACHAMALAYIL HOUSE, KAKKAD
         KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK,
         ERNAKULAM DISTRICT,PIN-686 664
    2    ANOOP
         AGED 41 YEARS
         S/O.ISSAC, THACHAMALAYIL HOUSE, KAKKAD KARA,
         PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
         DISTRICT,PIN-686 664
    3    SATHEESH P.SOMAN
         AGED 38 YEARS
 O.P(C)NO. 1391/2021               2

           S/O. SOMAN, PADINJAREYIL HOUSE, KAKKAD KARA,
           PIRAVOM VILLAGE, MUVATTUPUZHA TALUK,
           ERNAKULAM DISTRICT,PIN-686 664
    4      SOMAN
           AGED 65 YEARS
           S/O. NARAYANAN, PADINJAREYIL HOUSE, KAKKAD
           KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK,
           ERNAKULAM DISTRICT,PIN-686 664
           BY ADVS.
           C.DILIP
           NEENU ANNA BABU
           ANUSHKA VIJAYAKUMAR



        THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P(C)NO. 1391/2021                      3

                        V.G.ARUN, J.
        ===========================
                   O.P(C).1391 of 2021
        ===========================
         Dated this the 16th day of September, 2021

                            JUDGMENT

The petitioner is aggrieved by the rejection of the

application for impleadment in O.S.No.154 of 2021 of

Munsiff Court, Muvattupuzha. The said suit was filed by

respondents 1 and 2 herein, seeking the relief of mandatory

injunction against respondents 3 and 4. The essential

dispute is with regard to a lane, which is the only access to

the property of the plaintiff in the suit.

2. The grievance of the petitioner is that he is residing

beyond the property of the plaintiff and is equally affected

by the illegal action of the defendants. Petitioner has a

further case that the plaintiff had encroached upon the road

and reduced its width and had filed the suit thereafter.

According to the petitioner, the plaintiff is not entitled for

the equitable relief of injunction and if permitted to be

impleaded, he intends to raise a counter case against the

plaintiff.

3. Heard the learned counsel for the petitioner and

learned counsel appearing for respondents 1 and 2

extensively. If the allegation of respondents 1 and 2

regarding encroachment is genuine, the petitioner definitely

has a cause of action. But the question is whether that

cause of action could be clubbed along with the cause of

action on which respondents 1 and 2 have filed the suit,

which is confined to the alleged encroachment by

respondents 3 and 4. Being so, the learned Munsiff was

fully justified in holding that the petitioner's remedy is to

file a separate suit. At the same time, I find no justification

in the observation made by the learned Munsiff in imputing

collusion and lack of bonafides on the part of the petitioner.

In any event,

In the result, the original petition is dismissed,

making it clear that in the event of the petitioner filing a

separate suit, the learned Munsiff shall consider it,

uninfluenced by the observations in the impugned order.

Sd/-

V.G.ARUN JUDGE lgk

APPENDIX OF OP(C) 1391/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PLAINT IN OS NO.1454 OF 2021 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P2 TRUE COPY OF PETITION FOR TEMPORARY MANDATORY INJUNCTION IA NO.1 OF 2021 IN OS NO.154 OF 2021 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P3 TRUE COPY OF COMMISSION REPORT ALONG WITH ROUGH SKETCH DATED 30.06.2021 FILED IN IA NO.2 OF 2021 IN OS NO.154 OF 2021 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P4 TRUE COPY OF PETITION FOR IMPLEADING IA NO.4 OF 2021 IN OS NO.154 OF 2021 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P5 TRUE COPY OF COUNTER AFFIDAVIT FILED IN IA NO.4OF 2021 IN OS NO.154 OF 2021 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P6 TRUE COPY OF AGREEMENT DATED 27.09.2016 EXECUTED BY THE 2ND PETITIONER Exhibit P7 TRUE COPY OF PLAINT IN OS NO. 296 OF 2020 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P8 TRUE COPY OF COMMISSION REPORT DATED 23.10.2020 IN OS NO.296 OF 20210 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P9 TRUE COPY OF ORDER DATED 10.08.2021 IN IA NO.4 OF 2021 IN OS NO.154 OF