VISHWANATH Vs. WISHWANATH

JUDGEMENT

(1.) HAVING heard the learned Counsel for the parties and perusing the impugned order under revision, it transpires that a suit for permanent injunction has been filed by the respondents -plaintiffs to the effect that an open court - yard existing between the house of plaintiffs and the defendents - respondents belongs to him and the defendants -petitioners are trying to open the gate in front of the court -yard although the land does not belong to them. The defendants -respondents filed an application of counter claim asserting therein that the land in question neither belongs to the plaintiffs nor to the defendants - respondents but it is a public property. This application of the defendants -petitioners was rejected by the court below on the ground that the counter claim at the instance of the defendants -petitioners is not maintainable for the property admittedly is not claimed by them and in any view, the plaintiffs will have to prove their title to the disputed property before they secure an order injunction.

(2.) IT is no doubt true that a counter claim ordinarily could have been filed by the defendants -petitioners only if they asserted title to the suit property or at least to the extent of the properties which they claim that it belongs to them but in this case admittedly the disputed property is not claimed by the defendants -petitioners and it is merely stated that the property is a public property and does not belong to the plaintiffs -petitioners. The dismissal of the counter claim in view of this plea of the defendants -petitioners cannot be said to be illegal or unreasonable but the total effect of the entire situation would be that the claim of the plaintiffs would virtually result into a situation where he can secure an exparate decree in his favour for injunction as he would be in an advantageous situation since his claim would neither have to face any contest at the instance of the defendants -petitioners nor there would be anyone to contest on behalf of the State Government or the Municipal Corporation in regard to the land in question. When it was brought to the notice of the court below that the disputed land - as per the case of the defendants -petitioners is a public property, then the court below was duty bound to direct the plaintiffs -respondents to implead all the necessary and proper parties to the suit land in question or could have permitted the defendants -respondents to implead the Municipal Corporation as a defendant in regard to the property in question which has been alleged to be an unclaimed property. But instead of doing so, the court below has permitted a situation to prevail wherein the plaintiffs -petitioners will have no occasion to contest anyone in regard to his claim of title to the suit land and he can go to the extent of leading documentary evidence which will remain uncontested as to whether they are genuine or not. This kind of a situation ultimately is likely to result into passing of an uncontested decree and therefore although the impugned order to the extent of entertaining the counter claim of the defendants - petitioners cannot be interfered with in view of his admitted plea that the suit land does not belong to him, the court below in the interest of justice will have to consider whether the suit can continue in absence of proper and necessary parties in the wake of the plea of the defendants -petitioners that the suit property is an unclaimed property.