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2012 DIGILAW 102 (KAR)

P. Murali Appellant v. K. T. Narayana Reddy

2012-02-03

ANAND BYRAREDDY

body2012
JUDGMENT Anand Byrareddy, J : The appellant was the plaintiff before the Trial Court seeking injunctory reliefs restraining the defendants from using the 'B' schedule property namely as 25 feet road which provided access to the suit schedule 'A' property from the main road. The defendants contended that 20 guntas of land in the vicinity of the suit schedule property including 'B' schedule property was sold to one Nirmala and that she had put up a compound wall over the 20 guntas of land including 'B' schedule property. This was also stated to have been admitted by the plaintiff during the Course of cross-examination. There for, the Court has concluded that since Nirmala was not made a party to the suit and the she has admitted that she put up a compound wall under the 20 guntas of land including the 'B' schedule property, that 'B' schedule property being defined as a road, ceased to exist and there fore there was no case made out. 2. The learned Counsel for the appellant had filed an application along with the present appeal seeking to imp-lead one Nirmala. That application has been summarily allowed by this Court in the first instance and the causetitle has been amended. The Learned Counsel who has entered appearance for the said Nirmala, would state that the application has been allowed without notice in the first instance. Therefore, he would have strong objection to the Respondent No.4 having been imp-leaded in the present appeal though she was not a party to the suit in the first instance. It is pointed out that the reasons for the failure to imp-lead the said Nirmala in the first instance, according to the learned Counsel for the appellant, was due to inadvertence on the part of the Counsel appearing before the Trial Court in doing so though he was instructed to imp-lead Nirmala. This according to the learned Counsel can hardly be a reason to permit the appellant to imp-lead Nirmala and to seek to make out a case against her though there were no pleadings or evidence in support of any such contentions that have been taken up in the above appeal. 3. The learned Counsel for the appellant would submit that the reason assigned is indeed true that the Counsel for the appellant had not imp-leaded Nirmala though there were clear instructions in this regard. 3. The learned Counsel for the appellant would submit that the reason assigned is indeed true that the Counsel for the appellant had not imp-leaded Nirmala though there were clear instructions in this regard. Therefore, he submits that he should not be punished on account of such failure, and in order to ensure that the interest of justice is met, the matter may be allowed and remanded to the Trial Court to enable the appellant to establish his case even as against Nirmala. This claim on the part of the appellant cannot be allowed. It was a duty cast on the appellant to imp-lead Nirmala when it was brought to the appellant's attention that part of the property to the extent of 20 guntas was sold to Nirmala through which the 'B' schedule property road which provided access to the plaintiffs property passed. On the failure of the appellant to so imp-lead Nirmala, the entire foundation of the case against her who was admittedly in possession of the property sold, has failed. Therefore, to permit the appellant to take advantage of his own inadvertence would be unfair to the present respondent Nirmala. It is however to be observed that since the appellant would have an independent cause of action against Nirmala, if there was interference with the 'B' schedule property which provides access to the suit schedule 'A' property, it is appropriate that the appellant initiate an independent suit seeking appropriate reliefs against Nirmala, if so inclined. Incidentally, it is to be noted that the Lower Court has referred to admissions made by the appellant. But, as seen from the rough sketch produced which was also marked in evidence as Exhibit P-32, it is evident that 'B' schedule property runs beyond the extent said to have been purchased by Nirmala and finding that 'B' schedule property is no longer in existence, may not be correct. Therefore, the admission said to have been made by the appellant is capable of being explained as not being a complete admission of the suggestion that the property purchased by Nirmala included 'B' schedule property. At best it may be inclusive of a portion of 'B' schedule property. At best, it may be inclusive of a portion of 'B' schedule property. At best it may be inclusive of a portion of 'B' schedule property. At best, it may be inclusive of a portion of 'B' schedule property. These are all matters which ought not to preclude the appellant from instituting an independent suit claiming right over 'B' schedule property and to provide free access to his property. It is also pointed out that there are other site owners similarly placed as the appellants who are denied access to the road, complaining of such interference on this common road. Therefore, in order to ensure that complete justice is done, it would be appropriate if it is observed that the appellant would not be precluded from explaining the so called admissions which have been recorded by the Lower Court in the present judgment and decree under challenge in any subsequent suit that may be filed. 4. Hence, the appeal is disposed of without prejudice to the case of the appellant which he may substantiate in any fresh proceedings that may be instituted by him. While the learned Counsel for the Respondent No.4 would enter a caveat that any such observations shall not come in the way of the respondent denying the correctness of the allegations made against the Respondent No.4 and to contest the suit and therefore he would submit that all questions be left open including whether the admissions made by the appellant herein would preclude him from raising any contention contrary to the same. Hence all questions are left open.