Kerala High Court
K.Bhagirathi Shenoy vs Kasaragod Municipality on 12 January, 2026
2026:KER:5959
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 12TH DAY OF JANUARY 2026 / 22ND POUSHA, 1947
RSA NO. 1203 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 26.06.2012 IN AS
NO.62 OF 2007 OF SUB COURT, KASARAGOD ARISING OUT OF THE
JUDGMENT AND DECREE DATED 23.08.2007 IN OS NO.346 OF 1999
OF PRINCIPAL MUNSIFF COURT, KASARAGOD
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 K.BHAGIRATHI SHENOY
W/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
2 K.VISWANATHA SHENOY
S/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
3 K.PUNDALIKA SHENOY
S/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
4 SMT.M.SHANTHERI @ ASHA BHAT(DIED & LRS IMPLEADED)
D/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
5 SMT. K.GANGA @ DEEPA HEGDE (DIED & LRS IMPLEADED)
D/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
6 SMT. V.SHAMBHAVI @ SHALINI KAMATH
D/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
R.S.A.No.1203/2012
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2026:KER:5959
121, KASARGOD TALUK AND DISTRICT.
7 K.LAXMINARAYANA SHENOY
S/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
8 K.NANDAPALA SHENOY
S/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
9 K.RAMAKRISHNA SHENOY
S/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
10 SMT. MEERA PUSHA SHANBHOGUE
D/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
11 K.RMANATH SHENOY
S/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
12 K.SURESH SHENOY
S/O LATE K. GOKULDAS SHENOY, RESIDING AT SHANTI
NAGAR, KASARGOD KASBA VILLAGE, KASARGOD P.O. 671
121, KASARGOD TALUK AND DISTRICT.
ADDL.A13 NAGARAJA BHAT
AGED 69 YEARS
S/O VENKATESH BHAT, KULYADI HOUSE, DOOR NO.12-4-
8, AAJ ALSE ROAD, KADUBETTU, UDUPPI, KARNATAKA
DISTRICT, PIN 576101.
ADDL.A14 SWEETHA PAI
AGED 37 YEARS
W/O PRADEEP PAI, KULYADI HOUSE, DOOR NO. 12-4-8,
AAJ ALSE ROAD, KADUBETTU, UDUPPI, KARNATAKA
DISTRICT, PIN 576101 .
ADDL.A15 NEETHA BHAT,
R.S.A.No.1203/2012
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AGED 33 YEARS
W/O VISHAL PAI, MARINA ENCLAVE, 1901, A WING,
JANKALYAM NAGAR, MALAD WEST MUMBAI, PIN 400058.
(THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT
4 ARE IMPLEADED AS ADDITIONAL APPELLANTS 13 TO 15
AS PER THE ORDER DATED 25.09.2024 IN
IA.NO.1/2024)
ADDL.A16 SRI. DIVAKARA HEGDE,
H/O. LATE GANGA SHENOY, ARYA DURGA, 2-83, NEAR
PALLI CROSS, NEERE, BAILUR - 574 102.
ADDL.A17 SMT. MEGHA HEGDE ,
D/O. LATE GANGA SHENOY, ARYA DURGA, 2-83, NEAR
PALLI CROSS, NEERE, BAILUR -574 102.
ADDL.A18 SRI MAYUR HEGDE ,
S/O. LATE GANGA SHENOY, ARYA DURGA, 2-83, NEAR
PALLI CROSS, NEERE, BAILUR-574 102.
[THE LEGAL HEIRS OF DECEASED APPELLANT NO.5 ARE
IMPLEADED AS ADDL.APPELLANTS 16 TO 18 AS PER
ORDER DATED 15.12.2025 IN IA 1/2025]
BY ADVS.
SHRI.P.T.GIRIJAN
SHRI.C.MURALIKRISHNAN (PAYYANUR)
SHRI.P.SHRIHARI
SMT.USHA NARAYANAN
SMT.ADEENA SHAMNAD
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 KASARAGOD MUNICIPALITY
REPRESENTED BY ITS SECRETARY P.O. KASARGOD 670
121.
2 S.J.PRASAD
S/O THURUTHI KRISHNABHAI, HINDU EX CHAIRMAN OF
KASARGOD MUNICIPALITY P.O., KASARGOD KASABA
VILLAGE, KASARAGOD DISTRICT 671 121.
3 THE KERALA STATE ELECTRICITY BOARD
REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN,
R.S.A.No.1203/2012
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THIRUVANANTHAPURAM.
4 ASSISTANT EXECUTIVE ENGINEER
ELECTRICAL MAJOR SECTION, NELLIKUNNU, KASARGOD
KASBA VILLAGE, P.O., KASARGOD 671 121.
5 RAJANTH [DIED & LRS IMPLEADED]
S/O K.SOMAPPA, RETIRED EMPLOYEE, RESIDING AT
SHANTINAGAR, P.O., KARNAKKA KASARGOD 671 121.
ADDL.R6 SMT.VANITHA, AGED 73 YEARS,
W/O LATE RAJANATH, RAGHAVENDRA NILAYA,
KARANDAKKAD, KASARAGOD - 671 121.
ADDL.R7 PRAVEEN KUMAR, AGED 45 YEARS,
S/O LATE RAJANATH, RAGHAVENDRA NILAYA,
KARANDAKKAD, KASARAGOD - 671 121.
ADDL.R8 NAVEEN KUMAR, AGED 43 YEARS,
S/O LATE RAJANATH, RAGHAVENDRA NILAYA,
KARANDAKKAD, KASARAGOD - 671 121.
ADDL.R9 SMT.USHADEVI, AGED 40 YEARS, D/O LATE RAJANATH,
W/O K.CHANDRASEKHAR, RAGHAVENDRA NILAYA,
KARANDAKKAD, KASARAGOD - 671 121.
ADDL.R10 SMT.VANDANA, AGED 38 YEARS, D/O LATE RAJANATH,
W/O NAVEEN CHANDERA RAO, RAGHAVENDRA NILAYA,
KARANDAKKAD, KASARAGOD - 671 121.
[THE LHRS OF THE DECEASED R5 ARE IMPLEADED AS
ADDITIONAL RESPONDENTS R6 TO R10 AS PER THE ORDER
DATED 25.09.2024 IN I.A.NO.1322/2013]
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SMT.GEETHA P.MENON
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
12.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.S.A.No.1203/2012
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EASWARAN S., J.
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R.S.A No.1203 OF 2012
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Dated this the 12th day of January, 2026
JUDGMENT
This appeal arises out of the concurrent findings of the Principal Munsiff Court, Kasaragod, in O.S. No. 346/1999, a suit for a declaration that the pathway in question is a private pathway and does not belong to the public, as affirmed by the Subordinate Court, Kasaragod, in A.S. No. 62/2007.
2. The brief facts necessary for the disposal of the appeal are as follows:
2.1. The plaintiffs claim that 9.74 acres of land originally belonged to them as per sale deed dated 03.09.1957. There existed a residential house and other buildings in the aforesaid property. A portion of the plaint A schedule property is claimed by late K.Narayana by way of agricultural tenancy. A private road branching from NH-17 passes through R.S.Nos.111/1A, 112/2 and 112/1 of Kasaragod Kasba Village. The said pathway is marked as 'R' in the eye sketch produced along with the plaint. A branch road from road 'R' is marked as 'R1' in the eye sketch. Thus the plaintiffs claimed that the pathway covered by 'R' and 'R1' are R.S.A.No.1203/2012 6 2026:KER:5959 private property and therefore, the defendants do not have any right over the same. The defendants 1 to 4, in collusion with the others, have put up bulbs and tube lights after drawing new electric wires on the electric posts planted by the side of the private road.
2.2. The defendants entered appearance and resisted the suit by contending that the actions taken by the Municipality was in good faith. The 5th defendant, who got impleaded himself in the suit, raised a contention that the suit is bad for non-joinder of necessary parties inasmuch as several tenants were occupying the houses which are situated on either side of the pathway. Despite the said objection, the plaintiffs did not think it appropriate to implead the neighbouring residents who were using the pathway in question. Still further, the plaintiffs did not take out an Advocate Commissioner for inspection of the pathway. The 5 th defendant, on the other hand, filed an application seeking appointment of an Advocate Commissioner and pursuant to the said application, an Advocate Commissioner was appointed, who filed Ext.C1 report and Ext.C2 plan. In the said report, it is stated that various houses are situated on either side of the property and have been in the occupation of different persons. With these infirmities, the suit was taken up for trial. On behalf of the R.S.A.No.1203/2012 7 2026:KER:5959 plaintiffs, Exts.A1 to A23 were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 to B12 were produced and DW1 was examined.
2.3. On a successful completion of the trial and on appreciation of the oral and documentary evidence, the trial court came to the conclusion that the suit is bad for non-joinder of necessary parties. Accordingly, the suit was dismissed. In addition to that, it was also found by the trial court that the plaintiffs failed to prove that the pathway in question is a private pathway and not a public way. Aggrieved, the plaintiffs preferred A.S.No.62/2007 before the Sub Court, Kasaragod, which was also dismissed by judgment dated 26.06.2012. Pertinently, before the first appellate court, the appellants herein had confined their claim to the right over the road marked as 'R' in the eye sketch produced along with the plaint. The first appellate court, on appreciation of the evidence adduced by the parties, concurred with the findings of the trial court and dismissed the appeal and hence, the present appeal.
3. Heard, Adv.R.Lakshmi Narayan - learned Senior Counsel appearing for the appellants, assisted by Adv.C.Muralikrishnan and Adv.P.B.Subramanyan - learned counsel R.S.A.No.1203/2012 8 2026:KER:5959 appearing for the 5th respondent.
4. Adv.R.Lakshmi Narayan - learned Senior Counsel appearing for the appellants, contended that the burden is on the defendants to prove that the pathway in question is a public way and not on the plaintiffs, as erroneously found by the courts below.
In support of his contention, he relied on the decision of a Single Bench of this Court in K.Premalatha Bhandary v. Sachidananda Aiva [R.S.A 1425/2011 dated 12.03.2018 : 2018 Supreme (Online) (KER) 63200]. It is further pointed out that the plaintiffs have no grievance over the 5 th defendant and that he got himself impleaded in the suit. In fact, the plaintiffs do not have any cause of action against the 5th defendant. Inasmuch as the Municipality failed to prove that the pathway in question is a public pathway, the trial court erred in not granting the declaratory decree. He further relied on the communications issued by the Municipality to the effect that the pathway in question is not categorised as a public pathway in the records of the Municipality.
5. Per contra, Adv.P.B.Subramanyan - learned counsel appearing for the 5th respondent, countered the submissions of the learned Senior Counsel appearing for the appellants, by referring R.S.A.No.1203/2012 9 2026:KER:5959 to the report of the Advocate Commissioner, wherein the existence of various houses on either side of the pathway was noted by the Advocate Commissioner. Still further, it is contended that the defect of non-joinder of a party is an incurable defect which will affect the sustenance of the suit.
6. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below.
7. On a consideration of the submissions raised across the Bar, this Court is of the considered view that no substantial question of law arises for consideration in the present appeal. It is true that, as contended by the learned Senior Counsel for the appellants, the burden is on the defendants to prove that it is a public pathway, but then the larger issue before this Court is whether the framework of the suit is proper or not. Admittedly, the plaintiffs claim a declaratory decree against the defendants 1 to 4 that the pathway in question is not a public pathway, but a private way. It is indisputable that, going by the report of the Advocate Commissioner, it has come out that there are several houses situated on either side of the pathway in question. Therefore, it passes one's comprehension as to how a suit for R.S.A.No.1203/2012 10 2026:KER:5959 declaratory decree could be maintained without impleading the neighbouring owners who are using the way for ingress and egress.
8. Perhaps, the appellants may have thought, the cause of action in the suit is only against the Municipality and their action of drawing new electric wires and putting up bulbs and tube lights over the pathway in question. But then, it must be remembered that, apart from the act of the Municipality in drawing new electric wires and putting up bulbs and tube lights, no other allegation is raised against the Municipality, by which it is alleged that the Municipality has threatened to infringe the right of the plaintiffs over the pathway. That apart, the conscious act of the appellants in giving up their claim as against the pathway 'R1' in question before the first appellate court, also shows the inconsistency in the claim of the appellants as regards their right over the pathway in question.
9. Coming to the issue as to whether, despite the absence of the neighbouring owners who are using the pathway in question, the suit could still be maintained. This Court must note that, going by the proviso to Order I Rule 9 of the Code of Civil Procedure, 1908 (CPC), the provisions of Rule 9 will not apply to a R.S.A.No.1203/2012 11 2026:KER:5959 case of non-joinder of necessary parties. Therefore, it is obvious that a defect in the plaint which occurred at the hands of the plaintiffs by not impleading the necessary parties is fatal and it is incurable.
10. Coming to the additional documents produced before this Court, this Court by separate order has rejected the same. But then, this Court must also note the infirmity in the claim raised by the appellants. The additional documents, which are now sought to be relied upon, is the award passed by the Additional District Court-II, Kasaragod, in a Land Acquisition Reference (LAR No.2/2023) under Section 18 of the Land Acquisition Act under the provisions of Section 3(H)(4) of the National Highways Act, 1956. No doubt, a perusal of the said order would show that the plaintiffs have claimed compensation for a portion of the pathway which was acquired by the National Highways Authority. But then, pertinently, the findings rendered by the civil court in a suit which is instituted for a declaratory relief was not brought to the notice of the reference court. Had the judgment of the trial court, as affirmed by the first appellate court, been brought to the notice of the reference court, perhaps the situation might have been different.
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11. Be that as it may, this Court is definite in its view that, the conditions prescribed under Order XLI Rule 27 (1)(a)(aa) of the CPC, 1908, are not satisfied and that a subsequent order rendered in terms of the provisions contained under Section 3(H) (4) of the National Highways Act, 1956, cannot be the subject matter of determination while considering an appeal under Section 100 of the CPC, 1908. Therefore, this Court is left with no other alternative, but to reject the plea of the appellants relying on the additional documents.
12. Coming back to the present case, the courts below have concurrently found that the failure of the appellants to implead the necessary parties is fatal to the cause projected by them. This Court sees no infirmity or illegality in the aforesaid finding. Viewed in the above perspective, this Court is satisfied that no case for admission is made out, since no substantial question of law arises for consideration in the present appeal.
Accordingly, the appeal fails and the same is dismissed. No costs.
Sd/-
EASWARAN S, JUDGE ACR R.S.A.No.1203/2012 13 2026:KER:5959 APPENDIX OF RSA NO. 1203 OF 2012 PETITIONER ANNEXURES Annexure A1 THE ACQUIRED LAND IS A PORTION OF PLAINT SCHEDULE PROPERTY AND THE ROAD WHICH WAS SUBJECT MATTER OF THE SUIT. CERTIFIED COPY OF THE AWARD DATED 08.10.2025 PASSED BY THE COURT OF ADDITIONAL DISTRICT JUDGE -II, KASARGOD Annexure A2 THE CERTIFIED COPY OF THE PROCEEDINGS DATED 08.06.2020 OF SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION (NH), KASARAGOD AND COMPETENT AUTHORITY IN LAC NO.114/KASARAGOD VILLAGE