VARKEY JOSEPH Vs. MATHAI KURIAKOSE

JUDGEMENT

(1.) Plaintiffs in O.S.418 of 1982 on the file of the Munsiff's Court, Muvattupuzha are the appellants in this Second Appeal. They filed the said suit for a declaration of an easement right of way over the plaint 'C' schedule property which according to them passes through the property of the defendant respondent. The claim in the plaint was on the basis of a right by prescription. The specific plea was that they were using the plaint 'C' schedule pathway openly, as of right and without interruption from the year 1121 M.E. onwards, when they started their residence in the plaint 'A' schedule property that they had purchased in that year. The claim of easement made by the plaintiffs was repudiated by the respondent defendant in his written statement. He contended that the plaintiffs were not using any pathway as demarcated in the plaint 'C' schedule, that there was only a varamba between his fields, that the plaintiffs were never using it and that in any event they had not acquired any right by prescription.

(2.) It was averred in the plaint that the defendant was obstructing the right of way claimed by the plaintiffs over the plaint 'C' schedule and hence the suit was being filed against the defendant. In defence the defendant pointed out that the plaint 'C' schedule pathway as described by the plaintiffs passes not only through his property but the properties of others and those others are also necessary parties to the suit. The report of the Commissioner, Ext. Cl also indicated that there were three other property owners through whose properties the alleged way claimed by the plaintiffs passed through. Though no specific issue as to non joinder of parties was framed by the Trial Court, this aspect was urged before the Trial Court and the Trial Court took the view that the suit for declaration of the right of easement without impleading all the servient owners, that is, owners of all the properties through which the alleged pathway passes, was not maintainable as those other servient owners were also necessary parties. Though the Trial Court took the view that the plaintiffs have established a right of way it declined relief to the plaintiffs on the finding that all the necessary parties were not impleaded in the suit. It of course also found that the plaintiffs did not really prove a cause of action for the suit. Aggrieved by the dismissal of the suit the plaintiffs filed A.S. 212 of 1985 before the District Court, Ernakulam. The plaintiffs contended before that court that it was not necessary to implead the other servient owners and it is -sufficient if the plaintiff impleaded the particular servient owner against whom alone he claims relief, as according to the plaintiffs the other servient owners were not in any way interfering with their right of way. In addition to supporting the decision of the Trial Court on the question of non joinder the defendant also put forward a contention that no right of way has been made out by the plaintiffs so as to entitle them to the decree claimed.

(3.) The Lower Appellate Court did not go into the evidence in the case or the merit of the claim of easement made by the plaintiffs. But it agreed with the Trial Court that a suit for declaration of an easement right of way will not be maintainable without all the servient owners being impleaded in the suit. It therefore agreed with the decision of the Trial Court that the suit was liable to be dismissed on the ground of non joinder of other servient owners. The Lower Appellate Court also observed that the plaintiffs have another pucca road leading from their property to a public road and therefore it cannot be said that they have made out a case of easement. Thus the Lower Appellate Court dismissed the appeal though it entered a finding that the plaintiffs did have a cause of action, in disagreement with the Trial Court.