BALIBAI Vs. NEELAM AGRAWAL

JUDGEMENT

(1.) PETITIONER has challenged the order dated 06/12/2012 in these proceedings. By said application, the Court below has rejected her application preferred under Order 1 Rule 10(2) and Section 151 C.P.C. Annexure-P/5. The brief facts necessary for adjudication of this matter are as under:

(2.) THE plaintiff instituted a suit for declaration of title and permanent injunction against respondents No. 2 to 5 with the relief that she be declared as owner and in possession of land survey No. 7/2 area 4.180 hectare situated in village Nagehra district Guna. A further declaration is sought that respondent No. 1 to 3 be restrained from making any interference in possession of the plaintiff. In turn, defendants No. 1 to 3 appeared and filed their written statement. They denied the plaint allegations and contended that the land, which the plaintiff is claiming is of survey No. 2/13 area 4.180 which belongs to Prem Singh, which was given by Prem Singh to defendant No.1-Pyar Singh for cultivation 25 years ago. Pyar Singh cultivating the land and is in possession. The plaintiff has no knowledge of four boundaries of her land. Treating the disputed land to be of survey No. 7/2, plaintiff, in fact secured possession on the land of defendants and therefore, suit was prayed to be dismissed.

(3.) CRITICIZING the said order, Shri D.D. Bansal learned counsel for the petitioner submits that by preferring application Annexure-P/5, it was made clear that the petitioner is necessary party. There is a dispute since beginning as to where survey No. 2/7 and survey No. 2/13 are situated. The issues in this regard is already framed by the Court below. The plaintiff under the garb of survey No 2/7 cannot get benefit in survey No. 2/13. In this situation, the Court below has erred in rejecting the application. He relied on judgment of this Court passed in W.P.No. 4944/2010(I) Annexure-P/7.