: 1 : 4312-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4312 OF 2011 Kishanlal Bhavarlal Jain .. Petitioner v/s. Imtiaz Muqubil & Ors. .. Respondents ......... Mr. R.A. Thorat with P.J. Thorat for the petitioner Mr. S.S. Redij for respondent no.3 ......... CORAM : R.Y.GANOO, J DATE : 28th SEPTEMBER,2011. P.C. : 1. Rule. Rule made returnable forthwith. Learned advocate Mr. Redij appearing on behalf of the contesting respondent no.3 waives service of notice. By consent, petition is taken up for hearing. 2. The petitioner herein filed S.C. Suit No.5912 of 1997 in the City Civil Court at Mumbai against respondent nos. 1 and 2 seeking declaration that petitioner is the owner of the suit land admeasuring 200 sq.ft. more : 2 : 4312-11-wp=.sxw particularly described in prayer clause (a) of the plaint. After the institution of the suit, present respondent no.3 filed Chamber Summons No.Exh.14 of 2008 praying that respondent no.3 be joined as party defendant. This Chamber Summons was decided by the learned Judge of the City Civil Court by order dated 21st April, 2011. The learned Judge of the City Civil Court granted the said Chamber Summons and called upon the petitioner to carry out amendment in the plaint. This order dated 21st April, 2011 is challenged in this petition. 3. I have heard learned Counsel on both sides. The petitioner has approached this Court with a positive case that the land admeasuring 200 sq.ft. more particularly described in the plaint is the suit land. In the plaint, it is claimed that suit land is surrounded by compound. 4. It is the case of respondent no.3 that the portion of the said 200 sq.ft. is in possession of respondent no.3 and that is why respondent no.3 is a necessary party. In order to ascertain the claim of the respondent no.3 that he is in possession of part of the suit land, an effort was made to go through the affidavit in support of the chamber summons. It must be mentioned that there is no specific averment to say that respondent no.3 is : 3 : 4312-11-wp=.sxw in possession of either the whole of the suit land or the part thereof. Learned advocate for respondent no.3 wanted this Court to interpret the text of the affidavit in support and thereby hold that respondent no.3 is in possession of a part of the suit land. In my view, if it was the case of the respondent no.3 that he was in possession of a part of the suit land, it was necessary for him to give dimensions of the said land on which he is claiming possession. If that would have been done, the case of respondent no.3 that he is interested in the dispute raised by the petitioner with original defendant nos.1 and 2 could have been accepted. In the absence of such averment in the affidavit in support, it is difficult to accept that the case of respondent no.3 that he is in possession of a portion of land. True that some documents are sought to be relied upon by respondent no.3, however, it would not be possible to identify the said portion of the land with the documents. In my view, in a situation like this, it was absolutely necessary for respondent no.3 to specifically plead in the affidavit in support the area of which he was in possession so that at the time of trial, the trial Court can record its finding and pass appropriate decree. The claim of respondent no.3 cannot be accepted in that behalf so far as the disposal of the chamber summons is concerned. In the wake of the aforesaid discussion, the learned Judge of the City Civil Court erred in : 4 : 4312-11-wp=.sxw granting the said chamber summons. Hence, following order is passed to dispose of the petition. ORDER (i) Order dated 21st April, 2011 passed below Chamber Summons No. Exh.14 of 2008 is set aside. (ii) The suit shall proceed only against respondent nos. 1 and 2. (iii) It is clarified that this order shall not be used by any party in any other proceeding launched or to be launched by respondent no.3. If respondent no.3 has an independent right qua the portion of which he claims to be in possession, he is free to institute appropriate suit to protect his interest qua the real owner. (R.Y.GANOO, J.)