Judgment :- Appellants are defendants in a suit for injunction filed by the respondents in this appeal. Appellant No.1 is a Mosque and appellant Nos. 2 and 3 are its President and Secretary. Respondents land 2 are husband and wife and the 3rd respondent is the father of the second respondent and power of attorney holder of respondents 1 and 2. 2. The three questions of law formulated and on which notice has been ordered in the appeal are the following: "(i) From the facts of this case, is not the suit bad for non joinder of the state as a party in the suit? (ii) In the absence of a claim for easement, can a plaintiff sue for the relief of injunction without alleging at least possession over the property with respect to which plaintiff prays for injunction against the defendants? (Hi) In a case of dispute regarding existence of a way and the use of the same by the plaintiff, can a finding be entered discarding the oral evidence in the case? 3. The brief facts necessary for deciding the questions of law formulated in the appeal are: plaint A schedule property, 121/2 cents in extent, admittedly belongs to plaintiffs 1 and 2 and it is in the possession and management of the 3rd plaintiff. Plaint B schedule property is a strip of land which along with plaint A schedule property belonged originally to the maternal grand father of the second plaintiff. According to plaintiffs, plaint B schedule property measuring 2 cents in extent along with a further extent of 31/2 cents of land forming altogether 51/2 cents, was acquired by the Government from the second plaintiff s maternal grand father for the purpose of forming the National Highway 47 lying on the western side of Plaint A & B schedule properties. Plaint B schedule property, according to plaintiffs, is now lying as a puramboke land on the western side of the plaint A schedule property and they are using it as a passage to have access to plaint A schedule property and the residential building therein from N.H. 47. Plaint B schedule property, according to plaintiffs, is now lying as a puramboke land on the western side of the plaint A schedule property and they are using it as a passage to have access to plaint A schedule property and the residential building therein from N.H. 47. Plaintiffs have stated that the defendants are trying to illegally obstruct them from using the B schedule property as a passage and has filed the suit for injunction to restrain the defendants from interfering with the use of the plaint B schedule property for having access to N.H. 47 from plaint A schedule property. Defendants 2 and 3 filed a joint written statement on behalf of the first defendant denying all the material allegations contained in the plaint and contending that the Mosque is in possession of the levelled portion of the plaint B schedule property which lies on the southern side of the portion which lies as a pond. They denied totally the claim of the plaintiffs that they are using the plaint B schedule property as a passage to have access to plaint A schedule property from N.H. 47. Further the defendants without either expressly denying or admitting the allegation that plaint B schedule property is a puramboke land lying by the side of the road, have contended that the State is a necessary party on the basis of the allegations in the plaint and wanted the suit to be dismissed for non joinder of necessary parties. 4. Learned Munsiff found that the State of Kerala was a necessary party to the suit, that the suit was bad for non joinder of necessary parties and that the plaintiffs have not established any legal right over the plaint schedule property and was not entitled to get the relief of injunction prayed for and accordingly dismissed the suit. Learned Munsiff also found that the contention of the defendants that the plaintiffs have got another public road on the eastern side of their property is not established in the case. Learned Munsiff also found that the contention of the defendants that the plaintiffs have got another public road on the eastern side of their property is not established in the case. On appeal the learned District Judge found that the State of Kerala is not a necessary party and that the plaintiffs have primafacie established their case that they are using the plaint B schedule property as a passage to have access from plaint A schedule property to the N.H. 47 on its western side and that the defendants have no right to cause any obstruction to such user. The appellate court also found that the plaintiffs have no other access to a public way as alleged by the defendants on the eastern side of the plaint schedule property. In this view of the matter, the appellate court set aside the decree and judgment passed by the learned Munsiff and decreed the suit restraining the defendants from obstructing the appellants from exercising a right of way through plaint B schedule property for ingress and egress to plaint A schedule property from N.H. 47. 5. Plaintiffs have taken out a commission and the Commissioner has submitted Exts. C1 and C2 report, and mahazar. The Commissioner was examined as P.W.3. Apart from the Commissioner, 3rd plaintiff and one Paramus were examined as P.Ws.1 and 2. The second defendant gave evidence as D.W.I and examined two other witnesses as D.Ws. 2 and 3. 6. Both the courts below have proceeded on the basis that plaint B schedule property is admittedly a puramboke land though in the written statement, the defendants have neither expressly admitted nor denied the allegations in the plaint to that effect. Before me also the learned counsel for the appellants has no case that plaint B schedule property is not a puramboke land. In fact the learned counsel has argued on the basis that it is a puramboke land. In the memorandum of appeal also that is the stand taken is clear from the fact that one of the questions of law formulated itself is on the basis that plaint B schedule property belongs to State of Kerala and as such State of Kerala is a necessary party. In the memorandum of appeal also that is the stand taken is clear from the fact that one of the questions of law formulated itself is on the basis that plaint B schedule property belongs to State of Kerala and as such State of Kerala is a necessary party. So for the purpose of this appeal, I am also proceeding on the basis that plaint B schedule property is a poromboke land lying on the eastern side of N.H. 47 and on the western side of Plaint A schedule property. Further it is also the positive case of the plaintiffs that plaint B schedule property forms part of a plot of land measuring 51/2 cents in extent acquired by the Government for the purpose of forming N.H. 47 and that part of the land so acquired was used for digging and removing soil for the formation of N.H. 47 and that plaint B schedule property is a level land remaining after such removal of soil from the rest of the land. It is thus more or less clear from the pleadings and evidence in the case that plaint B schedule property really forms part of a puramboke land lying by the side of N.H. 47 either as part of it or as land lying by the side of the road kept for the purpose of the road. It is also clear from the pleadings that neither the plaintiffs not the defendants have claimed any specific right over plaint B schedule property or the low lying portion of the puramboke land. Plaintiffs have specifically alleged that they have submitted an application for assignment of the puramboke land to them as owners of the land abutting the same. Plaintiffs have claimed aright of passage through plaint B schedule property. But the defendants have on the other hand claimed possession over it without specifying the source of their right to possess the land and the extent of the land so possessed or filled up by them. They have also alleged that a portion of the Mosque building is in the filled up portion of the puramboke. 7. Regarding the first question it is clear from the pleadings and evidence in the case that the plaintiffs have not claimed either possession of the plaint B schedule property or even an easement right over it as against the State. 7. Regarding the first question it is clear from the pleadings and evidence in the case that the plaintiffs have not claimed either possession of the plaint B schedule property or even an easement right over it as against the State. The gist of their claim in the plaint is that as the owners of the property abutting plaint B schedule property they are using the same as a passage to have access from their residential house in plaint B schedule property to N.H. 47. Of course they have also stated that they have no other pathway to have access to any public road. However, they have not even alleged and proved any of the ingredients to establish an easement right of way through the plaint B schedule property. Learned counsel for the respondents has also not advanced any such contention before me. Probably being land kept for the purpose of N.H. 47 State has also not chosen to obstruct the plaintiffs in the matter of using plaint B schedule property as a passage so far. In these circumstances, I do not think that it was necessary for the plaintiffs to have impleaded the State as a party to the suit. In a more or less similar case, a Division Bench of the Orissa High Court in the decision reported in Girish Chandra v. Nagendranath (AIR 1978 Orissa 211) has held that the owner of land is not a necessary party to the suit so long as none of the parties to the suit have claimed any right specifically against the owner. In the said decision, the Division Bench has actually referred to two earlier decisions of the Calcutta High Court reported in Sabirer Ma v. Behari Mohan Lai (AIR 1928 Cal. 23) and in Kedaruddin v. Asrafali (AIR 1937 Cal. 355) in support of thier view. In AchutKalsai v. MadhuKalsai (1972) 38 Cut.LT 105) the Orissa High Court in a more or less similar case has held thus: "In this case there is no allegation of any resistance from the State of Orissa to the flow of Avatar over the Government land intervening between the plaintiffs premises and the channel by the side of the village road. The entire obstruction came from the defendants and the plaintiffs really aggrieved by the defendants action. The entire obstruction came from the defendants and the plaintiffs really aggrieved by the defendants action. There may be cases where the owner of the servant tenement would not resist and the resistance would come from quite a different quarter. In such cases the Owner of the servant tenement would certainly not be required to be before the Court as a necessary party to the litigation. The present case seems to be one of that type and the State of Orissa which is the owner of the intervening plot not being before the Court would not affect the suit in any manner". I am in agreement with the view expressed in the above decisions and would hold that the State is not a necessary party to the suit and the suit is not liable to be dismissed on that ground. 8. Regarding the second question it has to be held that the mere fact that plaintiffs have not claimed or established their possession over plaint B schedule property may not be a ground to refuse the relief of injunction prayed for in the suit. What the plaintiffs have claimed in the suit is a right to use plaint B schedule property lying as land by the side of N.H. 47 as a passage to have access to and from N.H. 47 to the plaint A schedule property. To establish such a right the plaintiffs need not plead and prove possession or even an easement right. Supreme Court has in Manglaur Municipality v. Mahadeoji (AIR 1965 SC 1147) stated some of the relevant aspects of the law of highways quoting from the decision reported in Harvey v. Truro Rural District Council (1903) 2 Ch 638 at pp. 643-644 thus: "In the case of an ordinary highway running between fences, although it may be of a varying and unequal width, the right of passage or way prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the entire of it as the highway, and are not confined to the part which may be metal led or kept in order for the more convenient use of carriages and foot-passengers". XX..XX XX..XX XX..XXX As Lord Tenterden observed in Rex v. Wright (1832)3 b & Ad 681: "the space at the sides" (that is of the hard road) is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as road it could not be kept sound". After quoting the above passages from the English decision the Supreme Court observed that "the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road." Surhrawardy, J.,nAnukul Chandra v. Dacca Dt. Board (AIR 1928 Cal. 485 at pp. 486, 487, after considering the relevant English decisions on the subject, summarised the English view thus: "The expression "road" or "highway" has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands". A Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri (AIR 1914 All. 341 at p. 342) defined the "road" so as to include the side lands thus: "in our opinion all the ground, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The Court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metal led for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street". This Court has referred to the above decision of the Supreme Court in Godavari Bhai v. Cannanore Municipality (1984 K.L.T. 1103) and has also extracted the statement of law regarding highways contained in Halsbury's Laws of England, 4th Edn., 21st Vol., where it is stated thus: "Nature and extent of right. This Court has referred to the above decision of the Supreme Court in Godavari Bhai v. Cannanore Municipality (1984 K.L.T. 1103) and has also extracted the statement of law regarding highways contained in Halsbury's Laws of England, 4th Edn., 21st Vol., where it is stated thus: "Nature and extent of right. At common law, an owner of land adjoining a highway is entitled to access to that highway at any point at which his land actually touches it, even though the soil of the highway is vested in another, but he has no such right if a strip of land, however narrow, belonging to another and not subject to the public right of passage, intervenes. The right of access of an adjoining owner from his premises to the highway and vice versa is a private right, and is distinct from his right to use the highway as so on as he is upon it, which (at any rate if the soil of the highway is not his) he enjoys only as a member of the public. An interference with the transference of goods from the highway to private premises is therefore an interference with a public right in which the owner of the premises has an individual interest as a member of the public. The private right of access is subject to the public right of passage which is the higher right, but the public right of passage is also subjected to the private right of access to the highway where the adjoining owner may exercise that right by means which do not amount to a serious obstruction to the right of passage and are not therefore inconsistent with it". In the light of the above principles relating to Highways and the land lying by the side of Highways, I am of the view that the strip of land described in plaint B schedule and lying in between N.H. 47 and plaint A schedule property can only be considered as either part of N.H. 47 itself or as land kept for the purpose of N.H. 47. The allegation in the plaint to the effect that plaint B schedule property is part of the property acquired for the purpose of formation of N.H. 47 and in fact soil was removed from the puramboke land for the purpose of forming N.H. 47 and the acquired land is still kept as such by the side of the road would also justify such a conclusion. If that conclusion is justifiable the plaintiffs who are owners of the adjoining land, namely, plaint A schedule property have got a natural right to have ingress and egress to N.H. 47 lying on the western side of the plaint B schedule property separated only by the plaint B schedule property which is also land vested in the Government. That alone is the right which has been found by the learned District Judge. If there is a right of access to plaint B schedule properly which is liable to be considered either as part of N.H. 47 or as land kept by the side of the road for the purpose of road; to cross over the source for reaching N.H. 47 such right of the plaintiffs as owners of adjoining land, namely, plaint A schedule property is liable to be protected against interference by all others except by the State in exercise of its superior right. The actual user of plaint B schedule property as a passage by the plaintiffs has been found by the learned judge and I find no reasons to interfere with the said finding of fact which is based upon the evidence in the case. P. W. 3 Commissioner has stated in his report that plaint B schedule property was being used by the plaintiffs for having access from the plaint A schedule property to N.H. 47 at least for two years prior to his inspection. In this view I find that the right claimed by the plaintiffs in the suit has been established sufficiently by the evidence in the case and is liable to be protected by the issuance of an injunction as has been granted by the appellate court. In this view I find that the right claimed by the plaintiffs in the suit has been established sufficiently by the evidence in the case and is liable to be protected by the issuance of an injunction as has been granted by the appellate court. In the circumstances, I find that even in the absence of a plea that plaint B schedule property is in their possession, the plaintiffs are entitled to get an injunction on the basis of the right alleged in the plaint, namely, a right to use plaint B schedule property for having access to N.H. 47 from the plaint A schedule property in their capacity as owners of plaint A schedule property which is abutting the plaint B schedule property. 9. The third question has been raised mainly on the ground that P.W.1 has made an admission to the effect that the defendants have filled up the portion shown as plaint B schedule. This assumption is not fully correct. In fact the case pleaded in the plaint is that plaint B schedule property is part of the land acquired and remaining in tact after digging and removing soil from the rest of the portion of the acquired property which is now lying as a pond. Even though in the' cross-examination P.W.1 seems to have admitted that defendants may have filled up portion of plaint B schedule property, he has clarified in re-examination that it is on the northern side of the plaint B schedule property that the defendants have done so. Thus it may not be possible to say that P.W.1 has admitted the case of the defendants that B schedule is the property filled up by them. As the right claimed by the plaintiffs is to have an access to a public road on the western side of the plaint A schedule through the land lying as puramboke land by the side of the road; evidence regarding actual user of plaint B schedule property as a passage becomes quite unimportant if not totally irrelevant and as such non-advertence to the oral evidence in detail cannot be considered as a vital defect committed by the learned judge in arriving at a decision in the appeal. More over, I think there is nothing in the evidence of P.W.1 which would disentitle the plaintiffs from claiming the relief which they have prayed for in the plaint. More over, I think there is nothing in the evidence of P.W.1 which would disentitle the plaintiffs from claiming the relief which they have prayed for in the plaint. In the circumstances, I answer all questions against the appellants and confirm the decree and judgment passed by the lower appellate court. However, it has to be made clear to safe-guard the interest of the State that the right claimed by the plaintiffs will not in any way prejudice the State in exercising its right over the B schedule land in any manner it likes. 10. Before concluding, I would like to observe that it is a case where the State of Kerala should take immediate steps to preserve the puramboke land in question of which part of plaint B schedule properly forms part, for the purpose for which it was acquired if it was acquired as contended by the plaintiffs and to administer the same in accordance with law with diligence. Both the parties to the suit are trying to assert rights over the puramboke land and it is for the State of Kerala to take note of the same and to deal with the matter with due diligence to safe-guard the interest of the State in the said property. It is seen from the Commissioner's report marked in the case that the extended portion of the Mosque building is being constructed in a portion of the B schedule puramboke land and there is a hurried attempt to put up a fence around the puramboke land by the defendants. If what has been reported by the Commissioner in his report is correct, it is a serious matter which requires immediate attention of the Government for taking appropriate action in accordance with law. Office is directed to forward a copy of this judgment to the Secretary, Revenue Department, Trivandrum, for appropriate action. The Second Appeal is thus dismissed. No costs.