PARWATI BAI Vs. BHEEKAM CHAND

JUDGEMENT

(1.) THIS appeal is directed against the decree and judgment dated February 20, 1992, passed by the District Judge, Sirohi, by which the learned District Judge dismissed the appeal filed by the appellant and maintained the decree and judgment dated February 13, 1986, passed by the learned Civil Judge-cum-Chief Judicial Magistrate, Sirohi.

(2.) BHEEKAM Chand, on August 6, 1977, filed a suit for declaration and mandatory and prohibitory injunction against Smt. Parvati Bai and Bhanwar Lal. It was averred in the plaint that the plaintiff owns a house bearing Survey No. 792 in Pechako Ka Bas of village Sheoganj In the southern part of this house, there is a public street having Survey No. 793. According to the plaintiff, the defendants made Pacca construction over 7 1/2 x 45' over this public street. It was further averred that on an application moved by the plaintiff on December 21, 1926, he was allowed to open four doors on this part of the road by the Tehsildar, Sheoganj, vide its order dated September 20, 1930. It was further averred that the defendants have no right to make encroachment upon the public street and raise construction and as they have obstructed in the use of the public street, therefore, by a mandatory and permanent prohibitory injunction, the defendants may be directed to demolish the constructions raised by them and they may further be restrained to raise any construction over it and not to interfere in the opening of four doors on the side by the plaintiff. This suit was contested by the defendant Smt Parvati Bai and it was averred in the written statement that this plot in question belongs to her father and after the death of her father and as her brother became a Sadhu, certain valuables from the house in question were taken-away and the plaintiff tried to encroach upon the defendant's plot in question and he wants to purchase this plot, for which she did not agree and, therefore, the present suit has been filed. An objection regarding the maintainability of the suit without proper sanction under Section 91 of the C. P. C. was, also taken. The question of limitation was, also, raised and certain other objections were also, raised regarding the cause of action, etc. The case was, thereafter, transferred to the Court of the learned Civil Judge, Sirohi, for trial. On the basis of the pleadings of the parties, the learned trial Court framed ten issues. The plaintiff, in suppot of its case, examined himself as PW 1 and, also, produced PW 2 Gulab Chand, PW 3 Loon Chand, PW 4 Banshi Lal and PW 5 Nain Mal. He also, placed reliance over certain documents. The defendants in support of the case, examined herself as DW 1 and produced DW 2 Champa Lal and DW 3 Jas Raj. The learned Civil Judge, after trial, decreed the suit filed by the plaintiff by its decree and judgment dated February 13, 1986. Dissatisfied with the decree and judgment dated February 13, 1986, passed by the learned Civil Judge, Sirohi the defendant-appellants preferred an appeal before the learned District Judge, Sirohi, who, by its decree and judgment dated February 20, 1992 dismissed the appeal filed by the appellants and maintained the decree and judgment pissed by the learned Civil Judge Sirohi. It is against this decree and judgment dated February20, 1992, passed by the learned District Judge, Sirohi, that the appellants have preferred this appeal.

(3.) THE next ground, raised by the learned counsel for the appellants is that the Patta with respect to the land in question is in the name of the father and the brother of the defendant-appellant Smt. Parvati Bai, who have not been made parties to the proceedings and, therefore, no effective decree can be passed in their absence. In this connection, suffice it to say that the construction over the public street has been made by the defendant-appellant and the plaintiff has only sought a prayer for removal of that unlawful construction raised by the defendant-appellant Smt. Parvati Bai over the public street and, therefore, the persons, in whose names the pattas of the adjoining lands have been issued, are not necessary parties as no relief has been prayed against them and the only relief prayed-for is with respect to the removal of the construction made over the public street and no Patta has been issued so far as this part of the public street is concerned, over which the construction has been made. THE father and the brother of the defendant-appellants are, therefore, not necessary parties and an effective decree can be passed and executed against the defendant-appellants even in their absence.