PAIKANNA VITHOBA MAMIDWAR Vs. LAXMINARAYAN SUKHDEO DALYA

JUDGEMENT

(1.) This revision application is against an order passed by the Civil Judge (Junior Division), Chandrapur, in Regular Civil Suit No. 41 of 1972 holding that the suit was bad for mis-joinder of causes of action and parties.

(2.) The brief facts which may be stated, and which are not in dispute, giving rise to this revision are that the plaintiffs are the owners of 2 different plots of lands Nos. 76 and 77. The plaintiffs are father and son. The plots 76 and 77 belonged to them as members of a Joint Hindu family once. Later the parties came to a partition. A godown stands built upon both the portions of plots 76 and 77. To the south of this building and plots of land is the property of defendants 1 and 2 being Plot No. 78, The plaintiffs complained that by the act of the defendants digging 5 pits for the purpose of erecting cement pillars and constructing a plinth thereon, the defendants have encroached upon plot No. 77. A contention was raised that the suit is bad for mis-joinder of parties and causes of action, which as stated above, succeeded. The present revision application is directed against that order.

(3.) Now it is well settled that in order to determine whether the plaint is bad for mis-joinder of causes of action and parties, one has to look to the plaint. Now looking to the relevant and material paras 1, 4A, 4B and 9 and 2 of the plaint, it will be seen from para 1 that the plaintiffs set out the fact of partition between them and say further that the plaintiffs own and possess plot No. 77 having an area 2470 sq. ft. and the building thereon which is also over partly plot No. 76. In plot No. 77 apparently both the plaintiffs 1 and 2 were interested. The building standing on plot No. 77 also extends over plot No. 76 and this building is jointly owned. The reference to ownership of plot No. 76 and building thereon are incidental and not material. Those references and the rather imprecise averments in the plaint have created some ambiguity in the plainttiffs' case. Lastly in paragraph 1, the plaintiffs stated that in the partition plot No. 77 and the godown came to be divided into two parts, the dividing line being shown by letters M. R. the eastern portion going to the share of plaintiff No. 2 and the western portion going to plaintiff No. 1. Along with the plaint, is a map attached and that map will go to show that to the west of letters M. R. the property belongs to plaintiff 1, which is described as plot No. 77 while to the east of line M. R. is the property of plaintiff No. 2, which is partly on plot No. 77 and plot No. 76. To the south of this plot No. 77, is plot No. 78 belonging to defendants.