Bombay High Court
Shankar S/O Sheshrao Kavhar vs Bhagwat Haribhau Ghayal And Another on 6 November, 2025
2025:BHC-NAG:11622
48. WP 5870.23.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5870 OF 2023
PETITIONER :- Shankar S/o Sheshrao Kavhar
Aged about 32 years, Occ.
Agriculturist, R/o. Waghi Bk. Tq.
Malegaon, District Washim.
..VERSUS..
RESPONDENTS :- 1) Bhagwat Haribhau Ghayal,
Aged about 66 years, Occ.
Agriculturist, R/o. Borala Jahagir, Tah.
Malegaon, Distt. Washim
2) Rameshwar Narayan Jatale, aged
about 53 years, Occ. Agriculturist, R/o.
Borala Jahagir, Tah. Malegaon Distt.
Washim.
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Mr.Rahul Ghuge, Advocate for Petitioner.
Mr Abhijeet P. Deshmukh, Advocate for the Respondents.
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CORAM : ROHIT W. JOSHI, J.
DATE : 06.11.2025
ORAL JUDGMENT :
1) Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned counsel for the respective
parties.
48. WP 5870.23.odt
2) The present petition is filed by the original defendant in
Regular Civil Suit No.55 of 2021, being aggrieved by the order
dated 07.08.2023 passed by the learned Trial Court on the
application at Exh.30 in the said suit. The present petitioner, who
is the original defendant, has filed a counterclaim in the said suit.
The relief claimed in the counterclaim is of perpetual injunction
against the plaintiff, restraining him from disturbing the
possession of the defendant over the suit property. Defendant No.1
claims to have purchased portion admeasuring 1.19 H.R., from
and out of land bearing Gat No.311, situated at Village Borala
Jahgir, Tahsil Malegaon, Dist. Washim. This Gat No.311 is a vast
tract of land admeasuring around 8.75 H.R.
3) It is the contention of the defendant that although the
sale deed dated 19.04.2002 the Gat number of the property is
mentioned as 252, the boundaries of the property mentioned in
the sale deed clearly indicate that the sale deed pertains to a
portion of land admeasuring 1.19 H.R., in Gat No.311 and not Gat
No.252. It will also be pertinent to mention that the vendor of the
defendant/petitioner is the father of the present respondent No.2.
4) Respondent No.2 filed application under Order 1, Rule
10 of the Code of Civil Procedure, seeking impleadment in the
48. WP 5870.23.odt
counterclaim as a defendant, on the ground that in the event, the
counterclaim filed by the defendant is decreed, there is a
likelihood of the defendant disturbing possession of respondent
No.2 over the land bearing Gat No.311, owned by him. The
learned Trial Court has allowed the said application vide
impugned order dated 07.08.2023. The learned Trial Court has
categorically held that the petitioner was not claiming any relief
against the proposed defendant i.e. present respondent No.2. It is,
however, held that there is some confusion with respect to the
correct Gat number of the suit property, forming the subject
matter of the counterclaim and, therefore, interest of the proposed
defendant (respondent No.2) was involved. In view of the above,
the learned Trial Court has found that the proposed defendant
(respondent No.2) was a necessary party.
5) Mr. Ghuge, learned Advocate for the
petitioner/defendant, contends that the observations made by the
learned Trial Court will, at best, imply that the proposed
defendant (respondent no.2) would be a proper witness, but not a
defendant to the suit. He contends that since the defendant is the
master of the counterclaim, the application for impleadment of a
third person as a defendant in the counterclaim should not have
been allowed against the will of the defendant/counterclaimant.
48. WP 5870.23.odt
6) Per contra, the learned Advocate for contesting
respondent No.2, who is the proposed defendant argues that since
the foundation of the counterclaim is based on ownership and
there is genuine confusion with respect to ownership of the
defendant over land bearing Gat No.311, it will be appropriate
that respondent No.2 is arrayed as a party in the counterclaim. He
contends that the rights of respondent No.2 will clearly be
affected by virtue of the adjudication of the counterclaim since the
injunction in counter claim is claimed on the basis of ownership.
The learned Advocate further contends that the issue as to
whether the defendant/counter-claimant is the owner of Gat
No.252 (as mentioned in the sale deed) or Gat No.311 (as claimed
in the counter claim) cannot be decided in the absence of
respondent No.2 (proposed defendant).
7) It is not in dispute that although the petitioner/counter-
claimant claims ownership over a portion of land bearing Gat
No.311, the Gat number mentioned in the sale deed is Gat
No.252. It is also obvious that the relief of perpetual injunction,
although it is claimed only against respondent No.1 (the original
plaintiff), is based on ownership. It is not in dispute that father of
the proposed defendant(respondent No.2) is vendor of petitioner/
counter-claimant. In the considered opinion of this Court, it will
48. WP 5870.23.odt
be appropriate that the issue of ownership is decided in the
presence of the legal heir of the vendor of the
counter-claimant/petitioner. Since the issue of ownership is
involved in the counterclaim, it will be appropriate that
respondent No.2 in the present petition is arrayed as a defendant
in the counterclaim.
8) In view of the aforesaid, writ petition stands dismissed.
Rule is discharged, with no order as to costs.
(ROHIT W. JOSHI, J.)
Tanmay...
