Judgment 1 wp3238.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3238 OF 2015
Sanjay S/o. Bhojraj Nagrare,
aged about 48 years, Occ.: Esquire,
R/o. Anand Nagar, Sitabardi,
Nagpur, Tah.-Distt. Nagpur.
.... PETITIONER.
// VERSUS //
1. Smt. Babulbai Wd/o. Akbar
Mahajan, aged about 72 yrs.,
Occ. Agriculturist.
2. Shri Sikandar S/o. Akbar Mahajan,
aged aout 47 years, Occ. Agriculturist,
3. Shri Dilawar S/o. Akbar Mahajan,
aged about 47 yrs., occ. Agriculturist,
4. Shri Nizam S/o. Akbar Mahajan,
aged about 44 yrs., occ. Agriculturist,
5. Shri Shaikh Qaiyum S/o. Akbar Mahajan,
aged about 36 yrs., occ. Agriculturist,
All R/o. Raipur Hingna, Tah. Hingna,
Distt. Nagpur.
6. Shri Hasan S/o. Akbar Mahajan,
aged about 54 yrs., Occ. Agriculturist,
R/o. Zhadap Saheb Building, Near
Hashi Nagar Masjid, Hashi Nagar,
Nagpur.
7. Smt Farzana W/o. Shamim Shaikh,
aged about 40 yrs., Occ. Housewife,
R/o. Bidi Colony, Kamptee,
Tah. Kamptee, Distt. Nagpur.
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Judgment 2 wp3238.15.odt
(Through Power of Attorney Holder
Shri Nizam S/o. Akbar Mahajan,
aged about 44 yrs., Occ. Agriculturist,
R/o. Raipur Hingna, Tah. Hingna,
Distt. Nagpur.)
8. Mayur Co-Operative Housing Society
Ltd., through it's President Shri Abde
Ali Wazir S/o. Habib Vazir, aged about
Major, Occ. Business, R/o. Sadoday
Apartment, 10 No.Brige, Kamptee Road,
Indora, Nagpur.
9. Shri Abde Ali Wazir S/o. Habib Vazir,
aged : Major, Occ. Business, R/o. Sadoday
Apartment, 10 No.Brige, Kamptee Road,
Indora, Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri D.C.Chahande, Advocate for Petitioners.
None for the respondents.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : NOVEMBER 09, 2017.
ORAL JUDGMENT :
1. Though the respondents are served, none appeared for them on 3rd November, 2017. Today also none appeared for the respondents in the morning session, the matter was kept back. Again when the matter is called out in the afternoon session, there is no appearance on behalf of the respondents.
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Judgment 3 wp3238.15.odt
3. RULE. Rule made returnable forthwith.
4. The respondent Nos. 1 to 7 have filed civil suit against the respondent Nos. 8 and 9 praying for decree for declaration that the sale-deed executed in favour of the present respondent No.8 (defendant No.1) is illegal, null and void. The plaintiffs have prayed for further reliefs. In this civil suit the present petitioner filed application (Exh.29) under Order 1 Rule 10 of the Code of Civil Procedure contending that out of the land which was sold to the defendant No.1 by the sale-deed dated 2 nd May, 1989, the petitioner has purchased a plot admeasuring 1800 sq.ft. by sale-deed registered on 1st August, 1989 and therefore, he is concerned with the proceedings of the civil suit and he is necessary party to the civil suit as he will be directly affected by the judgment and decree if passed in favour of the plaintiffs. This application is rejected by the trial Court by the impugned order. The application is rejected mainly on the ground that the sale-deed executed in favour of the intervener, is not during the pendency of the civil suit.
5. I find that the learned trial Judge has committed an error by not considering that the plaintiffs have challenged the sale-deed executed in favour of the defendant No.1 on 1 st May, 1989 by filing civil suit in 2013 and the sale-deed executed in favour of the petitioner is executed on 1 st August, 1989 i.e. much before filing of the civil suit. ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 23:54:58 :::
Judgment 4 wp3238.15.odt In the facts of the case, in my view, the petitioner is necessary party to the civil suit and the application (Exh.29) filed by him should have been allowed.
6. Hence, the following order:
i) The impugned order is set aside.
ii) The application (Exh.29) filed by the petitioner is allowed.
Rule made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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