Bombay High Court
Ratiram S/O Vithoba Mendhe vs Rambhau S/O Balaji Nainpurkar And ... on 14 June, 2017
Bench: I.K. Jain
wp.7071.16.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.7071 OF 2016
Ratiram s/o Vithoba Mendhe,
Aged about 39 years, Occu. Business,
R/o Post Masal, Tahsil Lakhandur,
District Bhandara. .... Petitioner
-- Versus -
01] Rambhau s/o Balaji Nainpurkar,
Aged about 62 years, Occu. Barber,
R/o Post Masal, Tahsil Lakhandur,
District Bhandara.
02] Gram Panchayat, Masal,
Through Sarpanch,
Tahsil Lakhandur, District Bhandara.
03] Sarpanch, Gram Panchayat, Masal,
Tahsil Lakhandur, District Bhandara.
04] The Secretary, Gram Panchayat, Masal,
Tahsil Lakhandur, District Bhandara. .... Respondents
Shri A.M. Quazi, Advocate for the Petitioner.
None for the the Respondents.
CORAM : KUM. INDIRA JAIN, J.
DATE : JUNE 14, 2017.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
the learned Counsel for petitioner. None appeared for
respondents.
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02] This petition is directed against the order dated
05/07/2016 passed by learned Civil Judge, Junior Division,
Lakhandur below Exh.26 in R.C.S. No.29/2014 rejecting the
application under Order I Rule 8 read with Section 151 of the
Code of Civil Procedure moved by the present petitioner.
03] The relevant facts necessary for the decision of this
petition may be stated, in brief, as under :
i. Respondent no.1 filed a suit for declaration and
permanent injunction against respondent nos.2 to 4.
During pendency of suit, petitioner intervened and
filed an application for addition of parties under Order
I Rule 8 read with Section 151 of C.P.C. Applicant-
plaintiff submitted that an encroachment on public
way in front of his house was made and, therefore, he
moved the Grampanchayat for removal of
encroachment. No action was taken and as
encroachment caused obstruction to approach way to
his house, he made representation to the Chief
Executive Officer, Zilla Parishad, Bhandara. On
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19/08/2012, Chief Executive Officer, Zilla Parishad,
Bhandara issued letter to Grampanchayat for removal
of encroachment within eight days. At the request of
plaintiff, time limit was extended and he was asked to
remove encroachment within two months. According
to petitioner, Grampanchayat authority and plaintiff
were hand in glove and failed to take action for
removal of encroachment despite grievances made by
petitioner from time to time. Submission is that civil
rights of petitioner are affected and he is a necessary
party to the suit.
04] With the assistance of the learned Counsel for
petitioner, perused application under Order 1 Rule 8 read with
Section 151 of C.P.C., order passed thereon, plaint and written
statement filed by respondents in suit. It is pertinent to note
that in the plaint itself, respondent no.1 has disclosed that on
complaint of petitioner, authority had taken action for removal of
encroachment against him. Petitioner has asserted his civil
rights and submits that approach way to his house is affected as
encroachment has not been removed by the authority
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concerned. Prayer in suit indicates that plaintiff claims
ownership on the basis of adverse possession and also
permanent injunction to protect his possession.
05] Considering the nature of dispute raised by the
plaintiff and the civil rights asserted by petitioner, application
under Order I Rule 8 read with Section 151 of C.P.C. ought to
have been allowed by the trial court. Hence, this court is
inclined to allow the writ petition and proceed to pass the
following order :
ORDER
i. Writ Petition No.7071/2016 is allowed.
ii. Rule is made absolute in terms of prayer clause (i)
with no order as to costs.
*sdw JUDGE
