SAVITABEN DIRAJLAL THACKER Vs. JEEVAN AATU MALA HARIJAN

JUDGEMENT

(1.) HEARD learned advocate Mr.A.R.Thakkar for petitioners (proposed party), learned advocate Mr.N.V.Anjaria for respondent No.1 " original plaintiff and learned AGP Ms.Mathur for respondent Nos.2, 3 and 4.

(2.) RULE. Learned advocate Mr.N.V.Anjaria waives service of notice of RULE on behalf of respondent No.1 " original plaintiff. Learned AGP Ms.Mathur waives service of notice of RULE on behalf of respondent Nos.2, 3 and 4.

(3.) LEARNED advocate Mr.A.R.Thakkar for petitioners submitted that respondent No.1 filed Special Civil Suit No.137 of 2009 in the Court of Principal Civil Judge (SD), Bhuj for declaration and injunction against respondent Nos.2 to 4. In the said suit, on behalf of respondent Nos.2 to 4 written statement had been filed. He also submitted that said suit, the husband of petitioner No.1/1 and father of petitioner Nos.1/2 to 1/4 made an application for joining him as a party on the ground that he had filed Civil Suit against Government for allotment of land as Inamdar and Regular Civil Suit No.61 of 2000 and Civil Court passed decree in his favour and Regular Civil Execution No.6 of 2002 filed, pointing out that present suit land and decree passed by Civil Court in his favour for the said land. In view of this original applicants " present petitioners are proper and necessary party to the suit because order passed by Court will affect present petitioners. He also submitted that in respect of the land in question, the petitioners have made their claim right from beginning and they have also obtained decree in their favour. Not only that, defendant Nos.2 to 4 have in their written statement specifically stated in Para.7 that petitioner's husband / father had made application to Collector, Kutch regarding false documents on that basis Mamlatdar, Bhuj filed complaint and late Dhirajlalbhai has also filed complaint against which is registered Criminal Inquiry No.20 of 2010 which pending in Court of Chief Judicial Magistrate, Bhuj. He also submitted that in Para.7 of written statement, a specific averment is made that respondent no.1 has created false documents and got in entry in his name and also averment made to the effect that suit is not maintainable for non-joinder of proper party. He also submitted that these facts have been over-looked by trial Court while deciding application Exh.23 for joining party. He also submitted that respondent Nos.2 to 4 in their written statement has also made averments in internal page-9, Para.13 that the subject matter of land is subjudice and in view of that there was mis-joinder of necessary party. In spite of these facts, ignoring written statement filed by respondent Nos.2 to 4, trial Court has rejected application made by petitioners. According to petitioners, land for which present suit filed by respondent No.1 and decree passed by Civil Court in Regular Civil Suit No.61 of 2000, for the same land any order passed in the suit, naturally it will directly affect adversely to the right of petitioners. In view of this, according to petitioners, they are proper and necessary party in the suit. The present petitioners are decree holder of land in question and if they are not joined as a party defendants and for same land on which, according to petitioners, respondent No.1 is encroacher as per plaint and filed suit and any order passed by trial Court, will directly affect the legal rights / status of petitioners.