High Court
Facts
(1) wp-7054-2011.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.7054 OF 20111.Mallikarjunappa s/o Sidramappa Bidwe,Deceased through his legal heirShivshankar s/o Mallikarjunappa Bidwe,Age: 58 years, Occu.: Business,R/o.: Latur.2.Sambappa s/o Trimbakappa Girwalkar,Age: 80 years, Occu.: Agri. & Advocate,R/o.: Latur.3.Dr. Sow. Sarojini 2/o Sambappa Girwalkar,Age: 74 years, Occu.: Medical Practioner,R/o.: Latur.4.Yogesh @ Trimbak s/o Sambappa Girwalkar,Age: 34 years, Occu.: Agri.,R/o.: Latur.5.Channabasweshwar Trust, LaturThrough its Trustee.6.Gopalkrishna Trust, Latur,Through its Trustee...Petitioners (Orig. Plaintiffs)Versus1.The Collector,Latur, Dist. Latur.2.The Agricultural Produce Market Committee,Latur, Dist. Latur,Through its Secretary.3.The Deputy Director of Marketing,Central Building, Pune.4.M/s. Ram Nivruti Reddy,Latur, through its Partner,Laxman s/o Nivruti Reddy,Age: 41 years, Occu.: Commission Agent,R/o.: Latur. (2) wp-7054-2011.odt5.M/s. K. M. Shaha,Latur, Through its Partner,Govindlal s/o Mohanlal Shaha,Age: 51 years, Occu.: Commission Agent,R/o.: Latur (Deleted as per order dated 25.01.2024)6.Gulabbai Thoshetti,Age: 73 years, Occu.: Agril, & Household,R/o: Latur, Tq. & Dist. Latur.7.Baswanappa @ Shivappa Gundappa Bargale,Age: 70 years, Occu.: Agril,R/o.: Latur, Tq. & Dist. Latur.8.Vishwanath s/o Gundappa Bargale,Deceased through his legal heir8/1.Kasturbai w/o Vishanath Bargale,Age: 68 yrs., Occu.: Household,R/o. Latur, Tq. & Dist. Latur.8/2.Minakshi Seshrao Birajdar,Age: 39 yrs., Occu.: Household,R/o. Latur, Tq. & Dist. Latur.9.Shashikalabai 2/o Sidramappa Mitkari,Age: 66 years, Occu.: Household,R/o.: Latur, Tq. & Dist. Latur.10.Rajkumar s/o Gundappa Bargale (Died)10-A.Indubai w/o Rajkumar Bargale,Age: 48 years, Occu.: Household,R/o.: Latur, Tq. & Dist. Latur.10-BGanesh s/o Rajkumar Bargale,Age: 20 years, Occu.: Education,R/o.: Latur, Tq. & Dist. Latur.10-C.Ashwini D/o. Rajkumar Bargale,Age: 25 years, Occu.: Education,R/o.: Latur, Tq. & Dist. Latur.11.Kondabai w/o Suryakant Yelge,Age: 56 years, Occu.: Household, (3) wp-7054-2011.odtR/o.: Latur, Tq. & Dist. Latur.12.Madol s/o Gundappa Bargale,Age: 50 years, Occu.: Agri.,R/o.: Latur, Tq. & Dist. Latur...Respondents (Orig. Defendants)…Mr. S. V. Natu, Advocate for Petitioners.Mr. S. P. Joshi, AGP for Respondents-State.Mrs. P. G. Sontakke, Advocate for Respondent Nos.6, 7, 9, 10A to10C, 11 and 12.Respondent No.4 is served.Respondent No.5 is deleted.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 17th JULY, 2025.JUDGMENT:- 1.Rule. Rule made returnable forthwith. With consent of theparties, matter is taken up for final hearing at admission stage.2.The present Writ Petition takes exception to order dated02.07.2011 passed by learned Civil Judge Senior Division, Laturbelow Exhibit-214 in Special Civil Suit No.249/1984, therebydirecting addition of respondent nos.6 to 12 as plaintiffs in suit.3.In nutshell, facts leading to present Writ Petition are asunder:The petitioners are owners of land Survey No.141/2admeasuring 14 acres and 14 gunthas. Out of land withinownership of petitioners, 12 acres 7 gunthas land has beenacquired for Market Yard by State Government in the year 1979.The respondent nos.1 to 3 encroached on additional land (4) wp-7054-2011.odtadmeasuring 23 R from Survey No.141/2 and raised constructionthereon. The petitioners filed Special Civil Suit No.249/1984seeking decree of perpetual and mandatory injunction againstrespondent nos.1 to 3. The respondent nos.1 to 5 appeared in suitand filed written statement. Eventually, issues were framed. Thepetitioners tendered evidence affidavit. At this stage, respondentnos.6 to 12 filed application Exhibit-214 seeking direction againstpetitioners to add them as plaintiffs on the ground that oneLaxmibai was tenant of land and applicants being her legalrepresentatives are interested in suit property.The petitioners opposed application for intervention.However, Trial Court allowed application directing addition ofrespondent nos.6 to 12 as plaintiffs in suit.4.Mr. Natu, learned Advocate appearing for petitionerssubmits that Trial Court erroneously assumed that Late Gundappawas tenant over suit land and compensation is paid to his wifeLaxmibai as per order passed in Land Acquisition ReferenceNo.311/1979, therefore, petitioners are interested persons. Mr.Natu submits that land in question was reserved for non-agricultural and industrial development by State Governmentunder Section 88(1)(b) of Maharashtra Tenancy and AgriculturalLands Act, 1948. Therefore, provisions of Tenancy Act does notapply. He would further submit that only because Laxmibai was
Legal Reasoning
(5) wp-7054-2011.odtgiven share in compensation in respect of acquired land,respondent nos.6 to 12 cannot claim any right in respect of landbeyond acquisition from Survey No.141/2, which is encroached byrespondent nos.1 to 3. According to Mr. Natu, respondent nos.6 to12 are neither necessary nor proper parties.5.Per contra, Mrs. Sonatakke, learned Advocate appearing forrespondents submits that Award passed in Land AcquisitionReference Nos.311/1979 and 312/1979 specifies right ofrespondents over land Survey No.141/2. Therefore, Trial Courtwas justified in directing their addition in suit.6.Having considered submissions advanced, it can be observedthat there is no dispute that petitioners are owners of land SurveyNo.141/2 admeasuring 14 acres and 14 gunthas. As per acquisitiontook place in the year 1979 for Market yard, 12 acres 7 gunthasland is subjected to land acquisition award and possession ishanded over to Government. Balance 2 acres and 14 gunthas landstill left in ownership of petitioners. The petitioners filed SpecialCivil suit No.249/1984 before Civil Judge Senior Division, Laturagainst respondent nos.1 to 5 seeking relief of perpetual andmandatory injunction in respect of area admeasuring 23 R out ofbalance land from Survey No.141/2. The decree of perpetualinjunction and possession of encroached area of 23 R is soughtagainst respondent nos.1 to 5. (6) wp-7054-2011.odt7.The respondent nos.12 to 16 are legal heirs of Gundappa andclaim that Gundappa was tenant over land Survey No.141/2 andthereafter, Laxmibai continued her possession, eventually, in LandAcquisition Reference No.311/1979, share of compensation wasgiven to Laxmibai against acquisition of 12 acres 7 gunthas forMarket Yard. However, there is nothing on record to show that sofar as suit land admeasuring 2 acres 14 gunthas left behind afteracquisition out of Survey No.141/2, Laxmibai had any right, moreparticularly tenancy right. Even assuming that Laxmibai had anysemblance of tenancy right, controversy in present case does notrequire presence of respondent nos.6 to 12 for adjudication of suit.The petitioners, who are owners of land are litigating againstrespondent nos.1 to 5/alleged encroachers of 23 R land from SurveyNo.141/2. Therefore, even decree of possession is passed, thetenancy right, if any, with respondent nos.6 to 12 would not beprejudiced.8.Order I Rule 10 of Code of Civil Procedure empowers Court toissue direction for addition of any party to the suit or proceeding, ifpresence of such party is necessary for adjudication of disputeinvolved in suit. Apparently, for adjudication of claim as toremoval of encroachment and possession of encroached land,presence of respondent nos.6 to 12 would not be necessary. Theydo not have independent right in suit property, particularly when, (7) wp-7054-2011.odtthey are claiming tenancy right through petitioners. In that viewof the matter, learned Trial Judge has committed patent illegalitywhile directing petitioners to amend plaint and add respondentnos.6 to 12 as plaintiffs in suit.9.In result, Writ Petition is allowed in terms of prayer Clause(B).10.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR)JUDGEDevendra/July-2025