MAKUNDARAO GANPATRAO WAKHLE Vs. DURGAPRASAD LAXMAN BHARBHUNJA

JUDGEMENT

(1.) THE plaintiff who is the lambardar of mouza Jaisinagar, Tahsil and. District Saugor, and owned field No. 19/l, area 6.18 in Chhota ghas rights, situate in the same village, instituted the present suit against the defendants for possession of an area 0.10, shown in red colour in the map attached to the plaint, out of this field No. 19/l, alleging that the defendants without any right had entered into possession of that piece of land and had begun excavating a well on that land. The plaintiff's case was that he was the owner of the land and also of the well situate on that land, and the defendants had absolutely no right to trespass thereon and excavate the well. The plaintiff therefore prayed that he be declared the owner of the field including the part of land in dispute and that actual possession thereof be granted to him, that the pit of land in field No. 19/l which was about 0.10 in area should be filled up and the materials be removed and possession be granted to the plaintiff from the defendants, and that the defendants be perpetually restrained from digging a well and collecting materials on the land in suit in future. This suit was contested by defendant 1 Durga Prasad son of Lachhman Bharbhunja, who is also the President of the Village Panchayat Committee of that village. The suit was not however instituted against him as President of the Village Panchayat, but was instituted against him and two others on the ground that they were the actual trespassers. on the land in dispute, irrespective of the. capacity in which they entered, and as against them possession and injunction were claimed. The defence was that the Village Panchayat Committee of the village had passed a resolution that the well standing on this land be excavated for meeting the water-supply of the village, and it was in pursuance of that resolution of the Village Panchayat Committee that the defendants had entered upon the land and excavated the well. The land in dispute was claimed to be the public property. It was urged that as these defendants had acted in the manner in which they did at the instance of the Village Panchayat Committee, the said committee should be joined as a party to the case. The plaintiff does not seem to have been asked whether he was willing to join the Village Panchayat Committee as a party to the case or not.

(2.) THE trial Court which heard the case held that the land belonged to the plaintiff and was in his possession, that the old well standing on that land also belonged to the plaintiff and not to the public, and that if at any time the public had any right whatsoever, it was extinguished by long user. It also held that the defendant did excavate the well in pursuance of a resolution passed by the Village Panchayat Committee, but the said resolution was ultra vires, and inasmuch as the resolution of the Village Panchayat Committee was ultra vires, the members of Village Panchayat Committee were not, necessary parties to the suit, and plaintiff's suit as against the defendants was tenable. On these findings the plaintiff's suit was decreed.

(3.) IT is contended on behalf of the appellant that the lower appellate Court's decision dismissing the plaintiff's suit is not justified and that no suit should be defeated by reason of misjoinder or nonjoinder of parties. It is further contended that the lower appellate Court was wrong in holding that this was a case in which nonjoinder of the Village Panchayat Committee or its members has made the suit untenable. In any case, it is argued that the plaintiff was not given an opportunity of stating whether he wanted to join the Village Panchayat as a party to the suit or not. I find from the decision of the lower appellate Court that it has not entered into the question whether the Village Panchayat Committee's resolution was ultra vires or intra vires. The decision of the trial Court that the Village Panchayat Committee was not a necessary party to the suit and that the acts of the defendants which were in pursuance of the ultra vires resolution of the Village Panchayat Committee were unauthorised acts and therefore the said acts could be treated as their own acts for which they could be also responsible has not been met by the lower appellate Court a in its decision. The lower appellate Court refers to Order 1, Rule 7, Civil P.C., and states that if the plaintiff was in doubt as to the person from whom he was entitled to obtain redress, he could have joined the present defendants and also other defendants from whom he thought he would obtain redress. The plaintiff however knew only of the defendants as they are the wrong-doers who trespassed on his land and excavated the well. He had therefore no doubt about the persons from whom he had to obtain redress. Order 1, Rule 7, Civil P.C., therefore, does not apply to the facts of the present suit./