Husain And Ors vs Basti Mal And Ors
2022 Latest Caselaw 10183 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Application for Leave to Appeal No. 4/2015

1. Husain S/o Mohamad Khan, Age about 75 years.

2. Umaid ji S/o Alam Khan, Age about 50 years.

3. Bharat kumar S/o Sohan lal, Age about 32 years.

4. Mangilal S/o Heeralal ji Jain, Age about 48 years.

5. Sabir Khan S/o Ghisu Khan, Age about 55 years.

6. Jiva Ram S/o Maga Ram, Age about 35 years.

7. Prakash S/o Achala Ram, Age about 42 years.

8. Arvind 5/0 Naindas, Age about 38 years.

9. Shankar Lal S/o Thana Ram, Age about 36 years.

10. Babudas S/o Shri Ram, Age about 75 years.

11.Mahendra S/o Kupa Ram, Age about 30 years.

12. Tara Chand S/o Raghunath, Age about 38 years.

13.Sita S/o Shankar Lal, Age about 33 years.

14. Bhika Ram S/o Kana Ram, Age about 53 years.

15.Babu Kkan S/o Kalu Khan, Age about 40 years.

16. Parasmal S/o Chuni Lal, Age about 55 years.

17. Ramesh Kumar S/o Shiv Lal, Age about 36 years.

18. Jasa Ram S/o Anna ji, Age about 42 years.

19. Puna Ram S/o Mana Ram, Age about 30 years.

20. Shobha Ram S/o Voltar Age about 5 years. All are R/o Nadol, Tehsil-Sumepur, District-Pali. (Rajasthan).

----Appellants

Versus RESPONDENT/ PLAINTIFF:-

1. Basti Mal S/o Shri Sagar Mal Ji, 2 Mahednra Kumar S/o Shri Achal Das,

3. Jayanti Lal S/o Shri Basti Mal Ji,

All are by caste-Jain, R/o Nadol, Tehsil-Desuri, District-Pali through their power of attorney Tuaa Ram S/o Shri Pura Ji, by caste-Prajapat, R/o Nadol, Tehsil-Desuri, District-Pali. (Rajasthan) RESPONDENT/DEFENDANT:

4. Gram Panchayat, Nadol, Tehsil-Desuri, District-Pali.

(Rajasthan)


                                              (2 of 5)                [CLA-4/2015]


                                                                ----Respondents


For Appellant(s)          :    Mr. Bharat Shrimali
For Respondent(s)         :    Mr. Deepak Vyas for
                               Mr. Jagdish Vyas



           HON'BLE MR. JUSTICE KULDEEP MATHUR

                                    Order

04/08/2022

This leave to appeal has been filed by the applicant, along

with Civil Second Appeal, aggrieved by the judgment and decree

dated 19.07.2014 passed by learned Additional District Judge,

Bali, District-Pali in Civil Appeal No. 35/2008 affirming the

judgment and decree dated 02.08.2008 passed by learned Civil

Judge (J.D.), Desuri, District- Pali in Civil Suit No. 38/1996.

Brief facts of the case are that a Civil Suit Case No. 38/1996

was filed by the plaintiff-respondent nos. 1,2 and 3 seeking

permanent and mandatory injunction before learned Civil Judge

(J.D.), Desuri through one Shri Tuaa Ram, power of attorney

holder for the property in dispute stating inter alia that plaintiffs

are members of family owing an immovable property namely

Sagar Bagh situated near Nadol Bus Stand. On 19.05.1951, a

patta for the said property was issued by Thakur Laxman Singh in

favour of the plaintiffs. At the northern side of the property, 11

gates are situated for ingress and egress. In the plaint, it was

stated that defendant (respondent no.4) has placed few cabins

which are not only causing hindrance to the smooth flow of traffic

but also virtually closed the 11 gates situated on the property

making it non-accessible. Plaintiff's by way of filing suit for

permanent and mandatory injunction prayed that the cabins

(3 of 5) [CLA-4/2015]

placed in front of the 11 gates of the property, be removed and

defendant (respondent No.4) be restrained from causing any

obstruction, hindrance and encroachment.

The defendant (respondent No.4) contested the Civil suit

No.38/1996 denying the existence of 11 gates on the property in

dispute. It was further stated that prior to the filing of present civil

suit, two Civil Suits bearing No. 61/1980 (Basti Mal v. Hussain &

Anr.) and 62/1980 (Basti Mal v. Jodha Ram & Anr.) filed on similar

grounds, had been dismissed by the competent civil courts. In the

appeal filed against the aforementioned judgments, the findings

were affirmed holding that the Panchayat i.e. defendant

(Respondent No. 4) is well within its powers to place cabins at the

northern side of the Sagar Bagh, property in dispute. The cabins

were allotted during 1972 to 1984-85 to the needy to earn the

means of livelihood.

The court of learned Civil Judge (J.D.), Desuri, District- Pali,

decreed the suit in favour of the plaintiff vide judgment and

decree dated 02.08.2008. Thereafter, the defendant (Respondent

No.4) filed first appeal against the judgment and decree dated

02.08.2008 before the court of Additional District Judge, Bali,

District-Pali bearing Civil Appeal No. 35/2008, which was

dismissed vide judgment and decree dated 19.07.2014.

The present leave to appeal along with Second Appeal has

been filed by the cabin-occupants alongside the property in

dispute submitting that they have been in peaceful possession of

the cabins leased out by the Panchayat to them. The suit for

permanent and mandatory injunction filed by the plaintiff Nos.1, 2

and 3 was without impleading them as party although they were

necessary and proper party to the dispute. It is further averred

(4 of 5) [CLA-4/2015]

that both the courts below had failed to appreciate that it had

been decided in earlier suits that property on which cabins are

situated belongs to the Panchayat. Therefore, if cabins are allowed

to be removed pursuant to the judgment and decree passed by

the courts below, it will be detrimental to the rights and interests

of the present appellants.

Learned counsel for the respondent supported the judgment

and decree passed by the courts below.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

From the perusal of record, it is apparent that the Civil Suits

No. 61/1980 (Basti Mal v. Hussain & Anr.) and 62/1980 (Basti Mal

v. Jodha Ram & Anr.) filed by Respondent No.1 against some of

the present appellants, were dismissed by the competent civil

courts. The appeals preferred thereof were also dismissed.

However, in the present civil suit filed by plaintiff-respondent Nos.

1, 2 and 3 seeking permanent and mandatory injunction over the

same property in dispute, the present appellants had not been

impleaded as party-respondents though they were directly

affected by the outcome of the litigation. It is well settled law that

a necessary party is one without whom, no order can be made

effectively. A proper party is one in whose absence an effective

order can be made but whose presence is necessary for complete

and final decision of the question involved in the proceedings.

Keeping in view the facts involved in the present case, I have

no hesitation in coming to the conclusion that the appellants were

necessary and proper parties in Civil Suit No.38/1996, the

judgment and decree passed by the court of Civil Judge (J.D.) as

well as the judgment and decree passed by Additional District

(5 of 5) [CLA-4/2015]

Judge, Bali, District Pali. The present leave to appeal is, therefore,

allowed.

For the reasons mentioned in the application filed under

Section 5 of the Limitation Act, 1963 for condonation of delay. The

delay in filing the second appeal, is condoned.

The office is directed to register the second appeal filed by

the applicants at regular numbers.

List the second appeal for admission on 19.09.2022.

The interim order dated 11.05.2015 passed in favour of the

applicants in S.B. Civil Application for Leave to Appeal No.4/2015

shall remain in currency till next date.

A copy of this order be placed in the second appeal filed by

the applicants.

(KULDEEP MATHUR),J 25-KshamaD/-

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