USHABEN NARENDRA KOLEKAR Vs. ANANDIBEN VISHNUPRASAD TRIVEDI

JUDGEMENT

(1.) The petitioner has challenged the legality and validity of the order passed below Exh. 57 by the Civil Judge (JD) in Regular Civil Suit No. 1531/84. The suit was filed by respondent Nos. 1 to 4 against the present petitioner for declaration as well as for injunction as regards parcels of land allegedly encroached upon by the petitioner- defendant. It appears that in said suit the present petitioner-defendant has appeared and filed the counter-claim at Exh. 12. It was the case of the plaintiffs that they have sold the land admeasuring 1646 sq.ft. for consideration of Rs. 22,000/- by registered sale-deed dated 28-7-83 but he was trying to encroach upon the land admeasuring 482.81 sq.ft. towards East which is already sold. It was for this reason that the suit for declaration and permanent injunction was filed with respect to land admeasuring 482.81 sq.ft.

(2.) In said suit the petitioner-defendant has appeared and filed written statement on 3-10-1984 containing counter-claim under Order 8, Rule 6A of C. P. Code. Said written statement is to be found at Exh. 12. In such counter-claim it is alleged by the defendant that she has purchased the land admeasuring 197 sq.mts from the plaintiff but that there was some mistake in the sale- deed and that therefore the sale-deed was required to be rectified and the plaintiff should be directed to rectify the sale-deed by correctly showing the area of land sold by the plaintiffs to defendants. Admittedly such counter-claim is pending.

(3.) It appears that the said suit thereafter came to be dismissed on 5-9-89 as plaintiffs as well as their advocates failed to appear and it was dismissed for default. On 10-2- 94 in the said suit which is dismissed for default, an application is made by the respondent No. 5 for impleading him as party defendant under Order 1, Rule 10 of C. P. Code inter alia contending that he has subsequently by registered sale-deed dated 6th June 1985 purchased the suit land which was including disputed area admeasuring 482.81 sq.ft. Such an application is granted by the trial court and it is against said order that the petitioner- defendant has approached this Court under Section 115 of C. P. Code.