BABU Vs. RAMACHANDRAN

JUDGEMENT

(1.) THE appellants are the appellants 1 and 2 in A.S.No.60/02 on the file of the Sub Court, Attingal. They are the defendants 1 and 2 in O.S.No. 412/1996. Respondents herein are the plaintiffs in the suit.

(2.) THE plaintiffs filed the suit for declaration of easement right and for injunction. The trial court by judgment dated 23.1.02 decreed the suit. The trial court declared the plaintiffs right of easement by grant, necessity and by prescription over the pathway. The trial court directed the defendants 1 and 2 to restore the D schedule pathway in its original position within one month from the date of decree and on their failure to do so, plaintiffs are allowed to restore the same in the original position at their cost through the court. The trial court issued prohibitory injunction restraining the defendants from making any act of obstruction in using it as pathway.

(3.) IN the facts and circumstance of the case, this Court is of the view that appellants shall be given an opportunity to substantiate their contentions and therefore, the applications for impleading, set aside abatement, condonation of delay etc. shall have to be reconsidered afresh. In the result, the appeal is allowed. The impugned judgment dated 10th July 2009 dismissing A.S.60/02 as abated is set aside. The lower appellate court is directed to reconsider the applications submitted for impleading the legal heirs of deceased 2nd respondent and connected I.A.'s afresh and pass orders. The applications shall be disposed of within a period of 4 months from the date of receipt of a copy of the judgment . No order as to costs.