ALI IMAM Vs. K I ASKARI

JUDGEMENT

(1.) This civil revision petition is directed against the order dated 7-7-2010 in I.A.No. 80 of 2009, on the file of the IV Junior Civil Judge, City Civil Court, Hyderabad, wherein the said application filed by the first respondent herein under Order 1 Rule 10 CPC to implead him as D-4 in the suit and as respondent No. 4 in the I.A. was allowed. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the records.

(2.) The petitioner herein filed the suit against respondents 2 to 4 for a declaration that proceedings No. 70/35-88/B9-5-1979 dated 24-3-1980 issued by the first respondent (Respondent No. 3 herein-GMHC) in respect of the schedule property-I is null and void and for a permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the schedule property-II and the front portion of the land to an extent of 100 square yards situate at Chapel Road, Hyderabad. According to the petitioner/plaintiff, he is the absolute owner and possessor of the house bearing Municipal No. 5-9-88/B/1, Ali Chambers, Fateh Maidan Road, Hyderabad, having purchased the same under a registered sale deed dated 24-3-1977. According to the plaintiff, he is owner of the site to the east of the house leading to the main road i.e., Chapel Road and there is an old iron gate also at the place where the site joins the main road. The said site of 100 square yards is stated to be part of total extent of 471.66 square yards bearing municipal Door No. 5-9-88/B/I. The plaintiff complains that the GHMC has started claiming the said site to be a common passage wrongly and, therefore, the plaintiff filed the suit for declaration that the proceedings issued by the municipality on 24-3-1980 is null and void and for injunction. The GHMC filed a written statement contesting the suit. The plaintiff also filed I.A.No. 44 of 2009 for temporary injunction. The first respondent herein filed I.A.Nos. 78 and 80 of 2009 under Order 1 Rule 10 CPC seeking to get impleaded as D-4 in the suit and respondent No. 4 in I.A.No. 44 of 2009. The petitioner herein opposed the said applications on the ground that the first respondent has no concern with the subject matter of the suit. The trial Court, by the impugned order, allowed the said applications, permitting the first respondent herein to come on record. Aggrieved by the same, the present civil revision petition is filed by the plaintiff.

(3.) According to the first respondent, the disputed site is a common passage and being the adjacent owner, he is also interested in the subject matter of the suit and, therefore, he is a proper and necessary party to the suit. The petitioner-plaintiff, on the other hand, would contend that the first respondent has no manner of right, title or interest in the disputed passage and there is no entrance or doorway or access from his building into the above said site and the access to the first respondent's building is directly to the main road. It is not disputed that the respondent's building has got direct access to the main road. There is no opening from his building into the disputed site. The dispute in the suit is between the petitioner who claims that the above said site of 100 square yards as his exclusive property being part of the front yard of the house in a total extent of 476 square yards and GHMC who issued the impugned proceedings treating the said site as a common passage to the plaintiff and others. In the affidavit filed in support of the application, the first respondent has claimed that he has been enjoying easementary rights for the last 40 years through the ventilators overlooking the disputed passage and, therefore, he is a necessary party to the proceedings. Thus, the claim of the first respondent is based on the alleged prescription of easementary rights. Admittedly, he does not have any joint rights of ownership in the disputed site along with the plaintiff or others. The presence of the first respondent is, therefore, not required to adjudicate the dispute as to whether the disputed site is an exclusive passage of the plaintiff as claimed by him or common passage for the plaintiff and others as alleged by the GHMC. The first respondent is neither a proper nor a necessary party for adjudication of the dispute which is essentially between the plaintiff and GHMC.