1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3291 OF 2009 Himmatrao s/o Tukaram Patil aged 65 years, occ. agril r/o Uchande, Tq. Muktainagar, Dist. Jalgaon .. PETITIONER VERSUS 1 Grampanchayat Uchande Tq. Muktainagar, Dist. Jalgaon Through its Gramsevak 2 Dr. Kadu so Tukaram Patil aged 59 years, occ. Profession r/o Uchande, Tq. Muktai Nagar Dist. Jalgaon. .. RESPONDENTS Mr. V.B. Patil, Advocate for the petitioner. Mr. V.Y. Patil, Advocate for respondent no.2. ===== CORAM : R. M. BORDE, J. DATE : 16 th November, 2009 ORAL JUDGMENT : 1 Heard. 2 2 Rule. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Petitioner / original plaintiff instituted Regular Civil Suit no. 2/2009 claiming relief in respect of declaration of ownership and perpetual injunction against defendant Village Panchayat. Plaintiff seeks relief in respect of quashment of the notice issued by Village Panchayat on 25-12-2008 and also further seeks order of injunction against Village Panchayat restraining from causing interference in peaceful possession of the plaintiff in respect of the suit property. Suit property is stated to be an open plot which admittedly belongs to Village Panchayat. It is contended that plaintiff is occupying the property since 1985-1986 onwards. The Village Panchayat adopted resolution on 22-6-2000 thereby resolving to permit the occupants occupy the property belonging to Village Panchayat on accepting certain amount towards fees. Accordingly, it is contended that plaintiff deposited amount of Rs.500/- on 22-6-2000. Third party applicant / respondent no. 2 herein who is real brother of the petitioner objected for recording name of petitioner / original plaintiff and decision in respect of permitting occupants i.e. plaintiff to occupy the premises on accepting 3 certain fees by Village Panchayat. It appears that considering the objection raised by third party applicant, Village Panchayat reviewed the decision taken earlier on 22-6-2000 and proposed initiation of action of eviction against plaintiff. Notice came to be issued on 26-12-2008 to the plaintiff calling upon him to vacate his possession over the disputed property. Plaintiff by presenting suit to the civil court has raised exception to the notice issued by the Village Panchayat and is also further seeking retrain order against the Village Panchayat. Third party applicant who is the real brother of the plaintiff presented application under Order I Rule 10 of the Code of Civil Procedure contending therein that he is necessary party to the suit. According to him, plaintiff has encroached upon the area which belongs to Village Panchayat and has further raised construction over the area. It is contended that the encroached portion in occupation of the plaintiff is adjacent to the property belonging to the third party applicant. Continuous occupation of the plaintiff over disputed property causes inconvenience to him and his rights in respect of enjoyment of his own property are adversely affected. Third party applicant therefore seeks his impleadment in the suit. Trial court after considering the contentions raised by the contesting parties allowed the application in view of order passed on 16-4-2009. 4 4 I have perused the order passed by the trial court and heard arguments advanced by learned counsel for the respective parties. The test for impleadment of the third party in the suit would be to ascertain whether the third party applicant is either necessary or proper party to the suit and whether presence of the third party applicant is necessary for enabling the court to effectively and completely adjudicate upon questions involved in the suit. In the instant case, plaintiff is seeking relief in respect of notice issued by the Village Panchayat. Plaintiff apprehends his dispossession at the instance of Village Panchayat as a result of resolution adopted by the Village Panchayat. Admittedly, plaintiff is not in occupation of any area which belongs to third party applicant. Thus, in order to decide the controversy between plaintiff and defendant, presence of third party applicant is not necessary. In the facts and circumstances of the case, it cannot be said that third party applicant is either necessary or proper party to the suit nor the court would be facing difficulty in effectively and completely adjudicating upon the question involved in the suit in the absence of third party applicant. In this view of the matter, order passed by the trial court appears to be against the provisions of law and without application of mind to the facts of the case. The impugned order therefore shall have to be quashed and set aside. Thus, writ petition is allowed. Order 5 passed by learned Civil Judge, Sr.Dn., Muktainagar on 16-4-2009 below exh. 12 in Regular Civil Suit no. 2/2009 stands quashed and set aside. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/3291.09.odt