1 WP 5022.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5022 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. S.V.Chandole, Advocate for the petitioner. Mr. M.V.Deshpande, Advocates for Resp. No. 2. ............................. CORAM : S.V. GANGAPURWALA, J. DATE :11/10/2011 PER COURT : 1. The present respondent no. 1 has filed Suit for recovery of possession of agricultural land and house property against the present respondent nos. 2 and 3 bearing Spl.Civil Suit No. 13 of 2008. During the pendency of the Suit, the present petitioner filed an application under Order I Rule 10 ( 2 ) of the Code of Civil Procedure. The trial Court rejected the said application. Aggrieved thereby, the present Writ Petition is filed. 2. Mr. Chandole, the learned counsel for the petitioner submits that the petitioner is a necessary party. The Court 2 WP 5022.2011 below while rejecting the application of the petitioner for impleading him as a party, has only relied on the Judgment delivered by this Court in Writ Petition No. 894 of 1989, but has failed to consider the averments made in the Plaint and the right agitated by the petitioner. According to the learned counsel, the plaintiff in the Suit claims that the property was not owned by Gangubai and was given to her only for maintenance. In light of that, whatever proceedings were initiated by Gangubai and carried further by defendant no. 1, looses its efficacies. The earlier proceedings up to this Court were decided on the premise that Gangubai was landlord and Basappa i.e. the father of the petitioner was a tenant. If Gangubai is not the owner/landlord, then the earlier proceedings would not carry any meaning. The learned counsel submits that if the petitioner can show semblems of right in the suit property, then the petitioner is required to be added as party. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Amit kumar Shaw & another V/s Farida Khatoon & another reported in 2005 ( 5 ) Bom.C.R. - 690 and two ( 2 ) Division Bench Judgment of this Court in the case of Rashtriya Mill Mazdoor Sangh V/s Empress Mills, Nagpur and others reported in 2007 ( 5 ) Mh.L.J. - 701 and in the case of Chitralekha Builders & another V/s G.I.C. Employees Sonal Vihar Co-op. Housing Society Ltd. & others reported in 2005 ( 5 ) Bom.C.R. - 764. 3 WP 5022.2011 3. Mr. M.V. Deshpande, the learned counsel for respondent no. 2 supports the order and submits that the petitioner has absolutely no right, title or interest in the suit property nor can claim any right in view of the Judgment of this Court in W.P. No. 894 of 1989. 4. The learned counsel for the original plaintiff supports the petition and submits that the petitioner is a necessary party. 5. It is not disputed that the petitioner is not in possession of the property. The possession has been delivered to the defendant no. 1 pursuant to the proceedings before the tenancy authorities, which stood culminated into Judgment in W.P. No. 894 of 1989. As such, it would transpire that in judicial proceedings, the possession has been delivered to the defendant no. 1 from the present petitioner. The petitioner in his application filed for impleading as party has nowhere shown the source of his claim. Once this Court had already delivered a dictum that present petitioner shall deliver the possession of the property to the present defendant no. 1, then the present petitioner can not claim any such right unless the petitioner shows some other source of acquiring interest in the property. 6. It is not the case that the petitioner is in possession and he want to protect his possession. The Suit is filed by 4 WP 5022.2011 the plaintiff claiming possession from the defendants. He can not claim any relief in such a case. More over, the right of the petitioner stood extinguished in the Judgment of this Court in W.P. No. 894 of 1989. 7. In view of the above, the petitioner can not be said to be the necessary party or proper party nor can even prima facie show the interest in the suit property. 8. In view of the above, the Judgments referred supra relied by the petitioner would be of no avail. 9. In light of the above, no error is committed by the Court in rejecting the application. As such, the Writ Petition is dismissed. No costs. Needless to state that the present order would not be an impediment for the petitioner to agitate his alleged rights if permissible in law in any other forum. [ S.V. GANGAPURWALA, J.] KNP/WP 5022.2011 5 WP 5022.2011