1 O.P.(C) NO.2120 OF 2023 2025:KER:25031 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947 O.P.(C) NO.2120 OF 2023 (AGAINST THE ORDER/JUDGMENT IN OS NO.112 OF 2015 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM) PETITIONER: M.A.ZOHRA, AGED 59 YEARS, W/O H.NAZEER, RESIDING AT 36/2403 A, PRINCE COTTAGE, VATTEKKATT ROAD, ELAMKULAM VILLAGE, KANAYANNUR TALUK, KALOOR, KOCHI, PIN – 682 017 BY ADVS. VARGHESE C.KURIAKOSE SUSANTH SHAJI ALBIN A. JOSEPH AMRITHA.J KURUVILLA MATHEW VIPIN C. VARGHESE RESPONDENTS: 1 T.L.CLEMENT, AGED 50 YEARS, S/O LATE LONAN, THAIPARAMBIL HOUSE, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, CHERANELLOOR P.O. ERNAKULAM DISTRICT -682 034, NOW RESIDING AT FIRE TECH HOUSE, VATTEKKATTU ROAD, K.K.ROAD, KALOOR, KOCHI-, PIN – 682 017 2 MR. T.K.VENUGOPALAN, AGED 55 YEARS, FATHER’S NAME NOT KNOWN TO THE PETITIONER, AMBADY HOUSE, PAINGARAPPALLY P.O., MULAMTHURUTHY, ERNAKULAM DISTRICT, PIN – 682 314 2 O.P.(C) NO.2120 OF 2023 2025:KER:25031 BY ADVS. FAZIL P SAJU THALIATH(K/429/1995) JAYASREE MANOJ(J-124) JITHIN PAUL VARGHESE(K/940/2009) C.PRABITHA(K/528/2009) FADIL FAZIL(K/1842/2021) ASWATHY JAYACHANDRAN(K/994/2022) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 9.10.2023, THE COURT ON 24.03.2025 DELIVERED THE FOLLOWING: 3 O.P.(C) NO.2120 OF 2023 2025:KER:25031 JUDGMENT (Dated: 24th March, 2025) The petitioner herein is the petitioner in I.A.No.6 of 2022 in O.S.No.112 of 2015 on the files of the Munsiff Court, Ernakulam. The suit was filed for declaring that the plaintiff who is the owner of ‘A’ schedule property, is entitled to access the rear portion of her building through the ‘B’ schedule and further declare that she has the right to effect maintenance by standing in the ‘B’ schedule property as a right of easement by necessity occasioned on account of severance. Plaint ‘A’ schedule property having an extent of 6 cents with a building situated thereon is the property of the petitioner. Plaint ‘A’ schedule property is situated on the northern side of the Vattekkatt Road, which is 3.60 meter wide link road which is vested with local authority, Kochi Corporation, and which joins the Kaloor-Kadavanthra road. 2. The 1st respondent herein purchased the property on 4 O.P.(C) NO.2120 OF 2023 2025:KER:25031 the northern side of the plaint ‘A’ schedule property, which is having an extent of 1.788 Ares. The said property is scheduled as ‘B’. The dispute arose between the petitioner and the 1st respondent, which ultimately ended up in three suits, which are mentioned in Ext.P1 plaint. The 1st respondent herein filed a written statement traversing the plaint averments. Pending the suit, the 1st respondent filed I.A.No.3 of 2020 in O.S.No.112 of 2015, seeking to strike out his name from the party array. According to him, he has alienated the plaint ‘B’ schedule to Sri.T.K.Venugopalan, the 2nd respondent herein. The said petition was opposed by the petitioner herein by filing a counter affidavit, and the petition was dismissed. 3. When the case was included in the list, the petitioner herein filed I.A.No.6 of 2022 to implead the 2nd respondent as additional 2nd defendant in the suit. The 1st respondent filed an 5 O.P.(C) NO.2120 OF 2023 2025:KER:25031 objection to the same. I.A. No.7 of 2022 was filed to remove the case from the list. Both the applications were heard together, and the Munsiff dismissed the applications. The petitioner challenges Ext.P7 in this original petition. 4. The counsel for the petitioner submits that the 1st defendant was the original defendant in the suit who sold the property to the 2nd respondent herein, has filed an application to get himself removed from the party array. The said application was dismissed. Now, the 2nd defendant who is the present property owner of the plaint ‘B’ schedule property, is sought to be impleaded as 2nd defendant and the said application was dismissed on the ground that the plaintiff had not taken any steps to implead the defendant, who purchased the property, though was given so many chances at the pretrial steps. Now, it is on the eve of the trial that the petition is filed, and it is only to protract the suit. 6 O.P.(C) NO.2120 OF 2023 2025:KER:25031 Therefore, the applicant prays that the application be dismissed. It is a fact that the original defendant has sold the property to the 2nd respondent herein, and the application is filed to implead the purchaser as an additional defendant. Since the person who is sought to be impleaded is the present owner of the property, he is a necessary party. Therefore, Ext.P7 is set aside, and Ext.P5 is allowed. This Original Petition (C) is disposed of. Sd/- BASANT BALAJI, JUDGE ss 7 O.P.(C) NO.2120 OF 2023 2025:KER:25031 APPENDIX OF OP(C) 2120/2023 PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO.112/2015 DATED 24.01.2015 ON THE FILES OF MUNSIFF COURT ERNAKULAM Exhibit P2 TRUE PHOTOSTAT COPY OF THE WRRITEN STATEMENT DATED 09.07.2015 FILED BY THE 1ST RESPONDENT IN O.S.NO.112/2015 Exhibit P3 EXT.P3: TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 30.11.2020 FILED AS I.A.NO.3/2020 BY THE 1ST RESPONDENT IN O.S.NO.112/2015 Exhibit P4 TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT DATED 23.02.2021 FILED BY THE PETITIONER IN I.A.NO.3/2020 IN O.S.NO.112/2015 Exhibit P5 TRUE PHOTOSTAT COPY OF THE I.A.NO.6/2022 DATED 03.10.2022 FILED BY THE PETITIONER IN O.S.NO.112/2015 Exhibit P6 TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT DATED 10.10.2022 FILED BY THE 1ST RESPONDENT IN I.A.NO.6/2022 IN O.S.NO.112/2015 Exhibit P7 TRUE PHOTOSTAT COPY OF THE ORDER DATED 12.10.2022 IN I.A.NO.6/2022 IN O.S.NO.112/2015 ON THE FILES OF PRINCIPAL MUNSIFF COURT ERNAKULAM