(1) WP. 2294.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2294 OF 2010 CHANDRAKANT RAMCHANDRA WAGHMODE ALIAS PATIL Age : 48 Occu.: Agri., R/o : KOREGAON Tq. OMERGA Dist. OSMANABAD .. Petitioner VERSUS 1]RAMCHANDRA ABARAO WAGHMODE ALIAS PATIL Age : 78 years, Occu.: Agri. 2]DHONDIRAM KRUSHNAJI PATIL Age : 68, Occu.: Agri., 3]SHANTABAI DHONDIRAM PATIL Age : 60, Occu.: Agri., 4]BABURAO DHONDIRAM PATIL Age : Major, Occu.: Agri., 5]VIJAY DHONDIRAM PATIL Age : Major, Occu.: Agri. Resp. Nos. 1 to 5 R/o : Koregaon, Tq. Omerga, Dist. Osmanabad 6]DR. SUBHASH RAMCHANRA WAGHMODE @ PATIL, Age : Major, Occu.: Medical Practitioner and Agri., R/o OMERGA, DIST. OSMANABAD. .. Respondents Mr. A.A. Mukhedkar, Advocate for the Petitioner None present for the respondents though served ... (2) WP. 2294.2010 CORAM : V.R. KINGAONKAR, J. DATED : 14TH JUNE, 2010 ORAL JUDGMENT:- 1] Rule. Rule made returnable forthwith and heard finally. 2] Though served the respondents are absent. Heard learned counsel for the petitioner. 3] By this Petition, the petitioner challenges the order dated 5.3.2009 rendered by learned 2nd Joint Civil Judge (Judge Division), Omerga on his application (exhibit 72) filed in suit (Regular Civil Suit no. 512 of 2000) by which order his application to implead himself as third party in the suit came to be dismissed. 4] The suit (Regular Civil Suit 512 of 2000) is instituted by the father of the petitioner. The suit is for declaration of ownership and perpetual injunction in respect of half share of well situated in land gat no. 11 (old survey no.2) situated at village Koregaon under Omerga Tehsil. It is pertinent to notice that the original plaintiff had no objection to implead the present petitioner as a party to the suit. Real dispute relates to right of the petitioner to draw water of the well situated in (3) WP. 2294.2010 land gat no. 11 (old survey no.2). It prima facie appears from the record that the petitioner is shown to be owner of land gat no. 13 (old survey no.1) to the extent of 1 H 62 R whereas his father i.e. plaintiff is shown to be owner of 5 H 53 R. Obviously, it is prima facie shown that the petitioner has concern with the land gat no. 13 to which the well water is allegedly available. The trial Court observed that the 7/12 extract indicates that the water of well situated in gat no. 11 (old survey no.2) is available for irrigation of land survey no. 1 i.e. gat no. 13 of which the petitioner is one of the co-sharers. Obviously, rights of the petitioner are likely to be impaired if he is not joined as party to the suit. Moreover, the plaintiff is dominus litus of the suit. When the plaintiff had no objection to join the petitioner as party, the application could not have been rejected without substantial reason and unless such request of the petitioner was found to be malafide. What the trial Court observed is that the plaintiff is represented by the Advocate and therefore, rights of the plaintiff would be protected by his Advocate and as such presence of the petitioner was not necessary to the suit. This could not be the way in which the application was required to be considered. It is explicit that prima facie case is made by the petitioner to hold atleast that he is a proper party to the suit. (4) WP. 2294.2010 5] For the reasons afore-stated, I am inclined to hold that the impugned order is unsustainable and as such, it is liable to be set aside. Hence, the Writ Petition is allowed. The impugned order is set aside. The petitioner shall be impleaded as party respondent in the suit and may be allowed to file his written statement and thereafter, necessary issues may be framed. Rule made absolute in the above terms. Sd/- [V.R. KINGAONKAR, J.] arp