JUDGMENT : EASWARAN S., J. The plaintiff in a suit for fixation of boundary with respect to the plaint A schedule property over the plaint B schedule property and also for an injunction, has come up with the present ap- peal. The brief facts necessary for the disposal of the appeal are as follows: O.S. No. 1341 of 2009 is instituted before the Additional Munsiff Court - II, Thrissur on the allegation that the defendants are trying to trespass into the plaint B scheduled property which is set apart by Exts. A1 and A2 documents on encroaching the plaint B schedule property which is set apart as a right of way by grant by the predecessor in interest of the plaintiff. In the plaint, it is further stated that the defendants were trying to trespass into the property on 30.05.2009 and in the above said arguments, the defendants have no right to do so. For the same relief, on 10.07.1996, the plaintiffs admitted that, they had filed O.S. No. 1639 of 1997 and that the same was dismissed for non-payment of Court fee. It was further contended that the aforesaid dismissal will not preclude the plaintiff from claiming a fresh suit. Accordingly, it was prayed that, the plaintiff be allowed to fix the boundary in respect of the plaint A schedule property to that of the defendant’s property and consequently an injunction restraining the defendants from trespassing into the plaint B schedule property preventing them from altering the boundaries of the plaint B schedule property was also sought. On behalf of the plaintiff, Exts. A1 and A2 documents were produced and PW1 was examined. The 2 nd defendant alone contested the suit whereas defendants 1,3 and 4 remained ex parte. The 2nd defendant contended that the suit is bad for non- joinder of the parties inasmuch his wife, who is a co-owner of the properties is not made a defendant in the suit. It was further con- tended that, the dismissal of O.S. No. 1639 of 1997 will operate as res judicata for the plaintiffs to maintain the consequent suit. The 4 th defendant though filed a written statement, was set ex parte. The plaintiffs took out an Advocate Commissioner for measuring out the property who filed Exts.C1, C2 and C3 reports. Exts.C1(a) and C2(a) are the rough sketch and sketch prepared by the Taluk Surveyor. The 4 th defendant though filed a written statement, was set ex parte. The plaintiffs took out an Advocate Commissioner for measuring out the property who filed Exts.C1, C2 and C3 reports. Exts.C1(a) and C2(a) are the rough sketch and sketch prepared by the Taluk Surveyor. In Ext.C2(a), the Advocate Commissioner identified the properties of the plaintiffs’, defendants 1, 2 and 4, and also the B schedule pathway. When the Advocate Commissioner demarcated the properties as above, it was found that a strip of land in the eastern side of the plaint A schedule property was in the possession of the 4 th defendant and towards the southern side of plaint A schedule property, a strip of land was lying vacant without having any specific boundary fixed for the pathway (B schedule). The Trial Court, on appreciation of oral and documentary evidence came to the conclusion that the suit is bad for non-joinder of parties since the wife of the 2 nd defendant was not impleaded as an additional defendant in the suit despite an objection being created in this regard by the 2 nd defendant in his written statement. The Trial Court further found that the description of the property of the 2 nd defendant in the schedule to the plaint is also required. Thus, the suit was dismissed. Aggrieved, the plaintiff carried forward the challenge in A.S. No. 40 of 2016 before the III Additional District Court, Thrissur which was dismissed on 07.01.2019 and hence this appeal. 2. When the appeal was admitted to the file, this Court framed the following questions of law; a) Have the Courts below erred in finding that the suit is bad for non joinder of necessary parties? b) Had not the Courts below erred in dismissing the suit as well as the appeal on the ground that necessary par-ties are not on record? 3. Heard Sri. P. Viswanathan, the learned Senior Counsel appearing for the appellants assisted by Sri. Ajith Viswanathan and Sri. P. B. Subramanyan, the learned Counsel appearing for the respondents 2 and 4 assisted by Anusree B. 4. The learned Senior Counsel, Sri. 3. Heard Sri. P. Viswanathan, the learned Senior Counsel appearing for the appellants assisted by Sri. Ajith Viswanathan and Sri. P. B. Subramanyan, the learned Counsel appearing for the respondents 2 and 4 assisted by Anusree B. 4. The learned Senior Counsel, Sri. P. Viswanathan submitted that the findings of the Court below that, the suit is bad for non-joinder of parties cannot be sustained since the 2 nd defendant as well as his wife are co-owners in respect of their property and that there was substantial representation in the suit. At any rate, the plaintiffs were entitled to get a decree for injunction restraining the defendants from altering the nature of B schedule pathway especially since both the plaintiffs and defendants had equal right over the same and, that the right over the pathway was in the form of an easement by grant under Exts. A1 and A2 documents. It is further pointed out that, going by Ext.C2(a) plan, a strip of land which was identified by the Advocate Commissioner laying vacant, abutting the B schedule path- way in which none of the defendants have any right and, there- fore, at least to that extent, the plaintiffs were entitled for fixation of boundary. It is further submitted that, towards the eastern side of the plaint A schedule property as identified by the Advocate Commissioner in Exts.C2 report and C2(a) plan, a strip of land was encroached upon by the 4 th defendant, and he is in occupation of the property of the plaintiffs. Since the fixation of boundary is sought for only in respect of a strip of land, it is contended that the plaintiffs need not have sought the prayer for recovery of possession. In support of his contentions, he has relied on the decisions of this Court Susy v. Sujathan and another [ 2022 (1) KHC 671 ], Nandakumara Varma and Another v. Usha Varma and Another [2014 KHC 854] and Appukuttan Nair v. Sadasivan Nair and Others [ 2022 (7) KHC 250 ]. 5. In support of his contentions, he has relied on the decisions of this Court Susy v. Sujathan and another [ 2022 (1) KHC 671 ], Nandakumara Varma and Another v. Usha Varma and Another [2014 KHC 854] and Appukuttan Nair v. Sadasivan Nair and Others [ 2022 (7) KHC 250 ]. 5. Per contra, P. B. Subramanyan, the learned Senior Counsel appearing for the respondents 2 and 4 pointed out that even if the suit is held to be maintainable, then also the reliefs sought for in the suit cannot be granted because the property of the plaintiffs and the defendants are not laying in common whereas it is separated by a pathway which has been clearly identified by the Advocate Commissioner in Ext.C2(a) plan. As regards the prayer for fixation of the boundary, towards the eastern side of the plaint A schedule property, it is contended that the extent of land which is found to be in possession of the 4 th defendant is around 1 cent and that, the said extent is not described in the schedule to the plaint. Even if the 4 th defendant had remained exparte, that by itself will not enable the plaintiffs to maintain the suit in the absence of any schedule in the plaint over which the recovery is sought for. It is further pointed out that even after the identification of the property by the Advocate Commissioner, the plaintiffs did not choose to amend the plaint by incorporating necessary pleadings as regards the encroachment done by the 4 th defendant and, therefore, at any rate, neither the fixation of boundary nor the prayer for recovery of possession could have been granted by the Courts below and, therefore, both the Courts below were justified in dismissing the suit. 6. I have considered rival submissions raised across the Bar and I have perused the records and the judgments rendered by the Courts below. 7. In the nature of the pleadings and also the reliefs sought in the plaint, it becomes obvious that, the plaintiffs will not be entitled to get a fixation of boundary with the plaint schedule property as well as that of the property of the defendants. 7. In the nature of the pleadings and also the reliefs sought in the plaint, it becomes obvious that, the plaintiffs will not be entitled to get a fixation of boundary with the plaint schedule property as well as that of the property of the defendants. This is precisely because, between the properties of the plaintiffs and defendants 1 and 2, there exists a pathway having a total extent of 2… cents as found by the Advocate Commissioner in Ext.C2 report and Ext.C2(a) plan. Be that as it may, even if the plaintiffs are not entitled to have their boundary fixed with that of the defendants, certainly they are entitled to have the boundary fixed towards the southern side of the plaint A schedule property abutting the pathway. Admittedly, both the plaintiffs as well as the defendants have right over plaint B schedule pathway by virtue of a grant under Exts. A1 and A2 and as well as Ext.B1. Though, it is disputed by the plaintiffs that Ext.B1 will not confer a right of the 2 nd defendant over the plaint B schedule pathway, the fact remains that the plaintiff does not have an exclusive right, title and interest over B schedule pathway and only has right of easement by grant over the plaint B schedule pathway. Therefore, at any rate, both parties will have to respect each other’s rights over the B schedule pathway. Therefore, the plaintiffs at any rate cannot obstruct the right of the defendants 1 and 2 over the plaint B schedule pathway and vice versa, the defendants 1 and 2 also cannot obstruct the right of the plaintiffs over plaint B schedule pathway. 8. However, going by the report of the Advocate Commissioner, there exists a narrow strip of land towards the southern side of the plaint A schedule property, therefore the plaintiffs are entitled to have the boundary fixed abutting the B schedule pathway. Coming towards the eastern side of the plaint schedule property, it has come out from the report of the Advocate Commissioner that a certain extent of land had been admittedly encroached by the 4 th defendant. Coming towards the eastern side of the plaint schedule property, it has come out from the report of the Advocate Commissioner that a certain extent of land had been admittedly encroached by the 4 th defendant. Though, the parties are at serious variance as regards the specific act of encroachment of the 4 th defendant, the fact remains that the 4 th defendant was set ex parte on 31.10.2015 and he has not raised any objection to the report of the Advocate Commissioner. 9. The indisputable facts being so, what remains to be seen by this Court is that, what is the extent of reliefs the plaintiffs are entitled to in the present proceedings. As regards the undisputed area which is marked by the Advocate Commissioner in Ext.C2(a) plan, the plaintiffs are entitled to have the boundary fixed and further that, in light of the fact that the defendants 1 and 2 also cannot obstruct the right of the plaintiffs over the B schedule pathway, this Court finds a limited relief in this regard can be granted in favour of the appellants. Insofar as the recovery of possession of the property encroached upon by the 4 th defendant towards the eastern side of the A schedule property as revealed from Ext. C2(a) plan, this Court finds considerable force in the submission of Sri. P. B. Subramanyam, learned Counsel for the 2 nd and 4 th respondents that in the absence of any specific pleading or as regards the incorporation of a specific extent of property in the schedule to the plaint, this Court may not be in a position to grant the reliefs. 10. At this point, the learned Senior Counsel for the plaintiffs Sri. P. Viswanathan prayed for indulgence of this Court for a remand before the Trial Court so as to incorporate the necessary pleadings in the plaint for claiming relief of recovery of possession in respect of the property encroached upon by the 4 th defendant. This Court finds that, the said request is acceptable in as much as the parties were litigating before the Court from 2009 onwards and that the 4 th defendant remained ex parte before the Trial Court on 31.10.2015. 11. As an upshot of these discussions, this Court finds that the appellants are entitled to succeed. This Court finds that, the said request is acceptable in as much as the parties were litigating before the Court from 2009 onwards and that the 4 th defendant remained ex parte before the Trial Court on 31.10.2015. 11. As an upshot of these discussions, this Court finds that the appellants are entitled to succeed. Thus, answering the question of law raised by this Court that the suit is not bad for non-joinder of parties, the appeal is liable to be allowed in part. 12. Accordingly, the judgments of the Courts below in O.S. No. 1341 of 2009 dated 31.10.2015 of the Additional Munsiff Court – II, Thrissur and A.S. No. 40 of 2016 dated 07.01.2019 of the Additional District Court – III, Thrissur are set aside. There will be a decree for fixation of the boundary towards the southern side of plaint A schedule property as found in Ext.C2(a) plan abutting the plaint B schedule pathway. The Ext.C2(a) plan will form part of the decree. 13. As regards the claim for recovery of possession, the suit stands remanded back to the files of the Additional Munsiff Court – II, Thrissur enabling the plaintiffs to incorporate necessary pleadings regarding the nature and extent of encroachment made by the 4 th defendant and also necessary prayer for recovery of possession. The defendants, if so advised, may file an additional written statement only to the reliefs sought for by the plaintiffs by way of amendment. It is made clear that the findings of the Advocate commissioner in Ext C2(a) plan shall not be reopened under any circumstances. The Trial Court shall consider the claim for recovery of possession on merits in accordance with the Ext.C2(a) plan. While considering the said prayer, the Trial Court shall adhere to the Ext.C2 report and Ext.C2(a) plan and thereafter proceed to decide the reliefs. The parties shall appear before the Additional Munsiff Court – II, Thrissur on 13.08.2025. With the aforesaid observations, this appeal stands partly allowed. Parties shall bear respective costs.