Sanjay S/O Bhojraj Nagrare vs Smt. Batulbai Wd/O Akbar Mahajan ...
2017 Latest Caselaw 8588 Bom

 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.

2. Heard learned advocate for the petitioners.

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.

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..