JAWALA PRASHAD Vs. LAXMI NARAIN

JUDGEMENT

(1.) BY means of this petition the Appellant has challenged the order dated 21.3.2011 passed by the learned Fast Track Court, Mandi whereby the Appellate Court set -aside the judgement and decree of the learned trial Court and remanded the entire suit for fresh trial on the ground that Rukmani Devi widow of Fateh Baksh, Devendri Devi, Taruna Devi and Nalni Devi were necessary parties in the suit.

(2.) THE brief facts of the case are that the Respondent (hereinafter referred as the Plaintiff) and the Petitioner (hereinafter referred as the Defendant) owned the adjoining properties. The Plaintiff does not dispute the fact that the Defendant Jawala Prashad is the owner of Khasra Nos. 2529 and 2530. According to the Plaintiff he has constructed his house on Khasra No. 2521 and the path from his house to the public road goes through Khasra No. 2529. It was prayed that he has a right of easement over the path on Khasra No. 2529 and that the Defendant Jawala Prashad is intending to raise construction over Khasra No. 2529 and is thus obstructing the easementary right of ingress and egress of the Plaintiff.

(3.) THE learned trial Court dismissed the suit on merits and also on the ground that the suit was bad for non joinder of parties since the land comprised in Khasra No. 2529 was not only owned by Defendant Jawala Prashad but also by Rukmani Devi, Devendri Devi, Taruna Devi and Nalni Devi, referred to above. The Plaintiff filed an appeal and the learned lower Appellate Court relied upon the judgement of this Court in Vijay Kumar and Ors. V/s. Rattan Chand and Ors. 2008 (2) Shim. L.C 203 and held that the Court could not have dismissed the suit for non -joinder of parties without giving an opportunity to the Plaintiff to add the parties.