Rajasthan High Court - Jodhpur

Satya Narayan vs Askaran Singh on 20 April, 2023

Bench: Nupur Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3516/2020

Satya Narayan S/o Late Narsingh Das, Aged About 65 Years, By Caste Sewag, Resident Of Village Sanwarij, Tehsil Phalodi, District Jodhpur.

----Petitioner

Versus

1. Askaran Singh S/o Sohan Singh, Jodhpur.

2. Nakhat Singh S/o Sohan Singh, Jodhpur.

3. Samandar Singh S/o Askaran Singh, Jodhpur.

4. Amar Singh S/o Dharm Singh, All By Caste Rajput, Resident Of Village Sanwarij, Tehsil Phalodi, District Jodhpur.

                                                                     ----Respondents


For Petitioner(s)             :     Mr. RJ Punia
For Respondent(s)             :     Mr. DLR Vyas



                     HON'BLE DR. JUSTICE NUPUR BHATI

                                         Order

20/04/2023

1. The present writ petition has preferred by the petitioner while

challenging the impugned order dated 18.11.2019 passed by Civil Judge

and Judicial Magistrate, Phalodi, District Jodhpur in Civil Original Suit

No.46/2018 Satya Narayan Vs. Askaran Singh & Ors.

2. Brief facts of the case are that the petitioner/plaintiff has filed a

civil suit for mandatory and perpetual injunction against the

respondents/defendants before the court of learned Civil Judge and

Judicial Magistrate, Phalodi, Jodhpur (hereinafter referred as "trial

Court") on 07.06.2018. The petitioner/plaintiff has stated in the plaint

that his residential plot along with bada is situated in old Abadi of

Village Sanwarij. The size of the plot is 105x95 feet and a Panchayat

Patta was issued by the Gram Panchayat, Sanwarij on dated 26.09.1999

(2 of 5) [CW-3516/2020]

in the name of petitioner/plaintiff, which was subsequently registered

before the Sub Registrar, Phalodi dated 30.06.2004.

3. The petitioner/plaintiff has been having possession since long time

and various constructions were raised on the plot. The

petitioner/plaintiff is residing in the plot and the nearby common

pathway is being used by him as having easementary right since thirty

years.

4. The respondents/defendants have erected some temporary

structure on the common disputed pathway on 06.06.2018, thus

obstructing the way which was being used by the petitioner/plaintiff.

The temporary structure is covered with the wires and net and it has

been alleged that the respondents/defendants had no right to erect the

illegal constriction over the common pathway.

5. The petitioner/plaintiff has prayed in the plaint that the temporary

constructions/encroachments made by the respondents/defendants may

be removed from the common pathway and sought injunction against

the respondents/defendants.

6. The respondents/defendants filed an application under Order 1

Rule 10 of CPC on 08.06.2018, in which, it was stated that patta had

been issued by the Gram Panchayt, Sanwarij in favour of the petitioner/

plaintiff and the residential house of the petitioner/plaintiff has been

found in the khatedari land of respondents/defendants and, therefore,

the Gram Panchayat, Sanwarij is the competent authority to show the

actual possession and actual position of the plot of the plaintiff and,

therefore, prayed that the Gram Panchayat, Sanwarij is a necessary

party to be impleaded as defendant respondents.

7. The petitioner/plaintiff filed reply to the application filed by the

respondents/defendants and denied all the contents.

                                        (3 of 5)                           [CW-3516/2020]



8.    The    learned   court     below      has     decided        the   application   on

18.11.2019 whereby the same was allowed and the Gram Panchayat,

Sanwarij was directed to be impleaded as party defendants in the suit.

9. Being aggrieved with the same, the present writ petition is filed

by the petitioner/plaintiff.

10. Learned counsel for the petitioner submits that plaintiff is the

master of the suit and is dominus litis and it is for him to decide and

implead the necessary parties for proper adjudication and determination

of rights for the suit filed. He further submits that no relief has been

sought against the Gram Panchayat, Sanwarij, therefore, the learned

court below has erred in allowing the application filed by the

respondents/defendants.

11. Learned counsel for the respondents submits that since the patta

of the petitioner, upon which, he has constructed residential house

issued by the Gram Panchayat, Sanwarij as well as the allegation

levelled upon the respondents/defendants that the common way has

been encroached upon by him vests with the Gram Panchayat,

Sanwarij, therefore, the Gram Panchayat, Sanwarij is necessary party

for proper and fair adjudication of suit preferred by the

petitioner/plaintiff and therefore the learned court below has rightly

allowed his application.

12. Heard learned counsel for the parties and perused the material

available on record.

13. The petitioner/plaintiff has preferred the suit with the following

prayers:-

1) कि प्रतिवादीगण वादी की इस बाद के पद संख्या 1 में व एनेक्श्चर ए में दर्शाई वादी की आवासीय जायगा व बाड़ा के आस पडौस में अवस्थित रास्तों व गली की भमि ू पर लगाये गये पत्थर. खंट ू ों व कराई जा रही तारबंदी को तत्काल हटाकर अतिक्रमण मुक्त कर दे व वादी के रास्ते के

(4 of 5) [CW-3516/2020]

सख ु ाधिकारों में एवं उसके उपयोग उपभोग में किसी प्रकार की बाधा या अवरोध या दखलअंदाजी कर हनन नही करे ।

2) कि प्रतिवादीगण के विरुद्ध इस आशय की स्थाई निषेधाज्ञा जारी की जाये कि वे वादी की आवासीय जायगा व बाडा तथा उसके आस पड़ौस के आम रास्तों गली की भमि ू पर भविष्य में भी किसी प्रकार का अतिचार अवरोध या निर्माण कार्य पत्थर खंट ू े जाली आदि लगाकर न तो स्वयं अतिचार करे न कि से कराने का ही प्रयास करे और न ही वादी की आवासीय जायगा में प्रवेश के रास्तों को अवरुद्ध करे न उसमें कोई दखलअंदाजी करे और न किसी से कराये।