-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 378 OF 2009 IN SUIT NO. 1526 OF 2005. Dani Sadan Co-op. Housing Society Ltd. ..Plaintiff. Versus M/s. Earth Builders & Anr. ..Defendants. AND Smt. Aruna Vimalkumar Garg & Anr. ..Applicants. Mr. P. K. Dhakephalkar, Sr. Advocate a/w Mr. T. N. Subramaniam, Sr. Advocate i/b M/s. Sanjay Udeshi and Company for the Applicants. Mr. Cooper i/b M/s. Hariani & Co., for the plaintiff. Mr. P. K. Samdani, learned senior advocate a/w Chetan Kapadia i/b Kishore Thakordas & Co, for the defendant no.1. Coram : R. V. MORE, J. Date : January 20, 2010. P. C. : 1. Heard Mr. Dhakephalkar, learned senior counsel for the applicants, Mr. Cooper, learned counsel for the plaintiff and Mr. Samdani, learned senior counsel for the defendant no.1. 2. This chamber summons is taken out by the applicants for direction to the plaintiff to amend the plaint and implead the applicants as the defendant nos. 3 & 4. 3. Brief facts relating to the present chamber summons are as follows : Old Survey No. 17, New Survey No. 13/7288, 4/7289 and cadestral -: 2 :- survey No.1/280 originally belonged to the applicants. (for the sake of brevity hereinafter referred to as “the said property”). The plaintiff has annexed at Exhibit-“A” a plan of the said property. It is the case of the plaintiff that by the lease deed dated 2nd July 1963 the applicants leased the portions shown in green and red colours in the said map at Exhibit- “A” to them for the period of 999 years. It is further case of the plaintiff that the portion shown in the blue colour is sold by the applicants to the defendant no.1 by sale deed in the year 1994, The dispute in the suit is about the portion shown in the red colour. According to the plaintiff, the disputed portion was also leased to them and inspite of this position the defendant no.1 is encroaching upon this portion. The plaintiff, therefore filed the suit for following reliefs. “(a) That this Hon’ble Court be pleased to order and declare that the plaintiffs as the lesses under the lease deed dated 2nd July 1963 of the cadestral survey No. 1/280 and more particularly demarcated in Plan appended to the lease deed dated 2nd July 1963 being Exhibit C herein are entitled as Lesses to the property comprised in Cadestral Survey No. 1/280 including the disputed portion of the land more particularly demarcated in red colour on the plan hereto annexed and marked as Exhibit- “A”. (b) That this Hon’ble Court be pleased to order and declare that the plaintiffs being the lessees of the property comprised in Survey No. 1/280 including disputed portion of land which forms part of cadestral survey no. 1/280 and more particularly demarcated in red colour on the plan hereto annexed and marked as Exhibit- “A” are entitled to a decree directing that and the defendant no.1 its servants, workers and agents be restrained from encroaching upon and be ordered to be evicted from the said plot of land including the disputed portion of the land.” -: 3 :- 4. The defendant no.1 claims ownership to the disputed portion shown in red colour by virtue of the sale deed executed in the year 1994 by the applicants in their favour. 5. Mr. Dhakephalkar, learned senior counsel appearing on behalf of the applicants, in support of his arguments submitted that the applicants are necessary and/or proper parties. He submitted that the plaintiff has claimed declaration about the property of his ownership, therefore, the prayers claimed in the suit by the plaintiff cannot be granted in the absence of applicants. He further submitted that the applicants deserve to be impleaded in the above suit in order to avoid multiplicity of proceedings. Lastly he relied upon judgment in the matter of Sumtibai & Ors. v/s. Paras Finance Co. [(2007) 10 SCC 82] and submitted that anybody with the semblance of title or interest is entitled to be impleaded in the proceedings. 6. Mr. Samdani, learned senior counsel appearing on behalf of the defendant no.1 supported the arguments of learned senior counsel Mr. Dhakephalkar. He invited my attention to the map at Exhibit-“A”. He also took me through the pleadings in paragraph nos. 5, 6 & 10 of the plaint and submitted that there is difference in area stated in the lease deed and area demarcated in the map annexed to the lease deed. Elaborating his arguments, he submitted that there is inconsistency in the lease-deed and therefore the intention of the lessor at the time of execution of the lease -: 4 :- deed in favour of the plaintiff must be looked into and for that purpose presence of the applicants is necessary to decide the controversy in the suit. He also relied upon the judgment of the Calcutta High Court in the matter of The Province of Bengal v/s. Maulvi Md. Yusuf and Anr. reported in AIR-(30) 1943 Calcutta 122. 7. Mr. Cooper, learned counsel appearing on behalf of the plaintiff opposed the chamber summons by asserting that the applicants are neither necessary nor proper parties to decide the controversy in the present suit. He submitted that the land shown in green and red colours in the said map is already leased by the applicants in favour of the plaintiff in the year 1963 for the period of 999 years and rest of the land is sold by them to the defendant no.1 by sale deed in the year 1994, and therefore there is no subsisting interest of the applicants in the subject matter of the suit. He submitted that in order to decide the controversy in the suit presence of the applicants is not at all necessary. In this regard, he relied upon the Apex Court judgment in the matter of Ramesh Hirachand Kundanmal v/s. Municipal Corporation of Greater Bombay & Ors, reported in (1992) 2SCC 524. He submitted that where the map demarcating the property is attached to the deed, in that case map shall be treated as incorporated in the said deed. In this regard he relied upon the Apex Court judgment in the matter of K.S.Nanji & Co., v/s. Jatashankar Dossa & Ors, reported in AIR-1961 SC 1474. He lastly relied upon the letter dated 11th August 2006 addressed by the applicants to the defendant no.1 in which it is -: 5 :- categorically stated that the disputed portion shown in the red colour is leased out to the plaintiff. 8. Having gone through the pleadings alongwith the ratio of the case laws and having considered the submissions of the learned counsel, I find no merit in the chamber summons. There is no dispute that the said property originally belonged to the applicants and applicants executed lease deed in the year 1963 in favour of the plaintiff of certain portion and sale deed of the remaining portion of the said property in favour of the defendant no.1 in the year 1994. The plaintiff claims lease in its favour of the portions shown in green and red colours and has filed the suit on the premise that the defendant no.1 is encroaching upon portion of the said property shown in red colour. If the prayers alongwith the pleadings in the suit are considered, in my opinion, it is clear that the plaintiff is not claiming declaration of his status or legal character. Even such declaration cannot be granted by this Court as the jurisdiction is conferred upon the Special Court, namely, the Small Causes Court under the provisions of Maharashtra Rent Control Act and Bombay Presidency Small Causes Court Act. In fact the plaintiff’s suit is for removal of the encroachment made by the defendant no.1 on the portion marked in red colour. 9. The Apex Court in Ramesh Hirachand Kundanmal (supra) has made out a distinction between the suits relating to the property and those in which the subject matter of the litigation is declaration as regards the status or legal character. So far as the former category is concerned, the -: 6 :- Apex Court held that the rule of the present interest as distinguished from the commercial interest is required to be shown before a person may be added as party to the suit. Since in the present suit the plaintiff has not claimed declaration as regards his status or legal character coupled with the allegation of the applicants that they have sold out disputed portion by the sale-deed to the defendant No.1, I am of the view that the applicants are not necessary parties to the suit. 10. At this stage, it is also worth to mention that the applicants have terminated the lease deed and filed suit against the plaintiff in the Small Causes Court at Bombay. In these circumstances, in my opinion, the applicants will not suffer any prejudice if they are not joined as party defendants in the present suit inasmuch as their interest will not be affected irrespective of the result of the present suit. 11. There is no dispute about the proposition laid down by the Apex Court in the matter of Sumtibai (supra). The Apex Court held that anybody with the semblance of title or interest in the property is entitled to be joined as party. However, this ratio cannot be made applicable to the facts and circumstances of the present case especially in view of the fact that the plaintiff is not seeking any declaration of his status qua the leased property and the disputed portion of the property is allegedly sold out by the applicants to the defendant no.1. 12. The decision in the matter of Province of Bangal (supra) relied upon -: 7 :- by learned senior counsel Mr.Samdani, cannot be relied upon in view of the decision of the Apex Court in the case of K.S. Nanji (supra), in which it is held that map referred to in the lease should be treated as incorporated in the document and is forming part of the said document. Moreover, the parties cannot be allowed to lead evidence about the intention of the parties at the time of the execution of the document in view of the section 92 of the Evidence Act. 13. Reference must also be made to the applicants’ letter dated 11th August 2006 to the defendant no.1. In this letter, the applicants in unequivocal terms stated that the lease was granted to the plaintiff for a term of 999 years for a plot which was clearly demarcated in the plan annexed to the lease. This letter though disputed by the applicants supports the plaintiff's case. 14. Taking overall view of the facts and circumstances into consideration, I am of the opinion that the applicants are neither necessary nor proper parties to the present suit to decide the controversy in the suit. The chamber summons is devoid of any merits and therefore the same is dismissed. (R.V. MORE, J.)