1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9735 OF 2009 Shree Sahastra Fana Parashwanath Jain Swetamber Derasar and Upashray Trust Petitioners VERSUS Brihanmumbai Municipal Corporation of Greater Bombay and another Respondents Mr.Tushar Goradia for the petitioners. Mr.Rishibh Shah i/by Ms.B.N.Dalal for respondent no.2. Mr.M.M.Malvankar for MCGB. CORAM : A.S.OKA, J. DATE : 25th March 2010 JUDGMENT :- 1. On 10th March 2010 and 18th March 2010 the petition was taken-up for final hearing. The controversy involved in this writ petition under Article 227 of the Constitution is very short. The petitioners are the original plaintiffs who filed a suit for injunction against first respondent Municipal Corporation. The second respondent filed Chamber Summons under Rule 10(2) of Order I of Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") seeking a direction against the petitioners to implead him as a 2 party defendant. By the impugned order, the Chamber Summons has been allowed. 2. The learned counsel for the petitioners invited my attention to the averments made in the affidavit in support of the Chamber Summons. He pointed out that in paragraph 2 of the affidavit in support, the constituted attorney of the second respondent stated that the second respondent is the sole owner of the property. He submitted that the said contention is factually incorrect. He submitted that at highest it could be stated that the registered partnership firm M/s.Venilal & Sons is the owner of the property. He submitted that a case is sought to be made out by the second respondent on the basis of subsequent documents allegedly executed by and between the partners. He submitted that in paragraph 7 of the impugned order, the learned Trial Judge proceeded to record a finding that the second respondent has become the owner of the suit property. He submitted that such a finding could not have been recorded by the learned Trial Judge. He submitted that what has been challenged in the suit is only an action of demolition under section 351 of the Bombay Municipal Corporation Act, 1888. He submitted that the second respondent has no direct interest in the subject matter of the suit and, therefore, the second respondent was neither a necessary nor a proper party to the suit. He submitted that the impugned order is erroneous and 3 deserves to be quashed and set aside. The learned counsel for the petitioners submitted that even the original owner of the property has no subsisting right as the property has been developed and flat purchasers have formed a co-operative society which has been duly registered. 3. The learned counsel for the second respondent supported the impugned judgment and order. He placed reliance on Deeds of Retirement of the partners of M/s.Venilal & Sons and various declarations executed by the partners. He submitted that the second respondent has become the sole owner of the property by virtue of retirement of other partners of M/s.Venilal & Sons. He pointed out that what has been alleged against the petitioners is that they have carried out unauthorized construction by way of unauthorized extension to the temple premises. He submitted that the temple premises has nothing to do with the building in respect of which the flat purchasers of the flats have formed a co-operative society. Placing reliance on the decision of the Apex Court in the case of Aliji Momonji & Co. Vs. Lalji Mavji and others ([1996]5-SCC-379), he submitted that the second respondent was a proper party. 4. I have given careful consideration to the submissions. In the plaint the petitioners have relied upon an agreement of tenancy dated 4 15th August 1980 and have contended that the petitioners are the tenants in respect of the premises of the temple. It is not in dispute that a partnership firm M/s.Venilal & Sons is the owner of the larger property on which the temple is situated. It is also not in dispute that the owners have not executed conveyance in favour of the society which is formed by the purchasers of the flats. It is not in dispute that the second respondent was a partner of the said firm. The challenge in the suit is to an action under section 351 of the said Act of 1888. The allegation is regarding carrying out illegal extension to the temple premises. In the case of Aliji Momonji & Co. (supra), the Apex Court held that a landlord is a proper party in such a suit. Even according to the case of the petitioners, the partnership firm is the landlord of which the second respondent is a partner. The second respondent claims that by virtue of retirement of the other partners, he has become the sole owner of the property. Prima facie, the documents of retirement deed and declaration show that all the partners of M/s.Venilal and Sons have retired and the assets of the firm vest in the 2nd respondent. Even on the basis that the second respondent is a partner of the partnership firm which is the owner and the landlord, the second respondent becomes a proper party to the suit. 5. A grievance has been made regarding finding recorded in the impugned order that the second respondent has become owner of the 5 suit property. On perusal of the impugned order it is obvious that what is observed in paragraph 7 of the impugned order cannot be considered as a finding on the issue of title. The Trial Court was examining the matter for dealing with the limited prayer under Rule 10(2) of Order I of the said Code. The only issue to be decided before the Trial Court was whether the second respondent was either a necessary or a proper party. It is, therefore, obvious that the observations made in the impugned order by no stretch of imagination can be considered as findings on the disputed issues relating to title. 6. Subject to what is observed above, no case is made out for interference. The petition is rejected. Rule is discharged. It is clarified that no adjudication has been made by the Trial Court as well as this Court on the issue of title and the only finding recorded is that the second respondent is a proper party to the suit. (A.S.OKA, J.)