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2014 DIGILAW 2289 (MAD)

Kandasamy v. Vellaiammal

2014-08-01

V.M.VELUMANI

body2014
Judgment 1. The Civil Revision Petition is filed against the fair and decreetal order dated 20.01.2014 made in I.A.Nos.417 of 2013 in O.S.No.91 of 2013 on the file of the learned District Munsif cum Judicial Magistrate, Thirupathur. 2. The revision petitioner herein is the third party and the first respondent is the plaintiff. The respondents 2 and 3 are defendants in the suit. 3. The petitioner filed an application for impleading himself as third defendant in O.S.No.91 of 2013 filed by the first respondent against the respondents 2 and 3 for permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the suit property. According to the petitioner, the suit property is the pathway to his property and the suit property was being used as pathway for more than 100 years. The first respondent/plaintiff denied the said allegation and stated that the suit property was never used by the petitioner as a pathway. The petitioner is claiming easementary right, which is beyond the scope of the suit. If at all the petitioner has any right over the suit property, he has to file a separate suit and establish their right and get the relief. 4. The learned Judge dismissed the application holding that the petitioner has not filed any document to show that he is the owner of the suit property and the suit is for permanent injunction against the respondents 2 and 3 herein and if the petitioner has easementary right, he has to file a separate suit. It was further held that the first respondent as plaintiff has the right to choose person against whom to get relief. Whatever relief the plaintiff get will bind only the parties in the suit. For the above reasons, the learned District Munsif held that the petitioner is not necessary and proper party and dismissed the Interlocutory Application. 5. The learned counsel for the petitioner reiterated the averments made in I.A.No.417 of 2013 and submitted that the petitioner is necessary and proper party in order to avoid multiplicity of proceedings. The learned counsel for the petitioner relied on the following judgments: (i) 2008 (5) SCC 84 (ii) 2004 (1) CTC 673 (iii) 1999 (2) SCC 577 (iv) AIR 1998 Punjab and Haryana 165 6. The learned counsel for the petitioner relied on the following judgments: (i) 2008 (5) SCC 84 (ii) 2004 (1) CTC 673 (iii) 1999 (2) SCC 577 (iv) AIR 1998 Punjab and Haryana 165 6. Per contra, the learned counsel for the first respondent contended that the petitioner is not proper and necessary party to the suit and permanent injunction, which may be granted in their favour will not bind and affect the petitioner and that the suit property was not used at any point of time as pathway by the petitioner. The learned counsel for the first respondent relied on a judgment reported in 2013 (3) CTC 466. 7. From the available records, it is seen that in the written statement filed by the second respondent/first defendant it has been stated that the suit property is shown as grama natham in the revenue records and only after proper verification, assignment was given in favour of the first respondent. But the first respondent has violated the conditions. When proceedings are initiated to cancel the assignment given to the first respondent, the first respondent has filed O.S.No.91 of 2013. From the stand taken by the second respondent/first defendant, it is clear that the suit property is not a pathway, but it is only a grama natham. Hence, the petitioner is not necessary and proper party to the suit and the learned Judge has rightly held that the petitioner can file separate suit for the relief, which he alleged to be entitled. 8. The judgments relied on by the learned counsel for the petitioner is not applicable to the facts of the present case. In the judgments relied on by the learned counsel for the petitioner, it is held that proper and necessary persons must be impleaded as defendants. But in the present suit, the petitioner is not proper and necessary party. On the other hand, the judgment relied on by the learned counsel for the first respondent squarely applies to the facts of the present case. 9. It is well settled that the first respondent as plaintiff is entitled to choose the person against whom, to seek the relief. If at all the petitioner is having any grievance against the first respondent/plaintiff, it is open to him to file a separate suit and contest the same against the first respondent/plaintiff. 10. 9. It is well settled that the first respondent as plaintiff is entitled to choose the person against whom, to seek the relief. If at all the petitioner is having any grievance against the first respondent/plaintiff, it is open to him to file a separate suit and contest the same against the first respondent/plaintiff. 10. For the above reasons, there is no irregularity or illegality in the order passed by the Court below and hence, the Civil Revision Petition is dismissed as devoid of merits. No costs. Consequently connected Miscellaneous Petition is closed.