SCA/13477/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13477 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= ABDULHASAN HABIBULLA ANSARI - Petitioner(s) Versus FIROZBHAI ABDULKHALID RANGREJ & 3 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1,MR SURESH M SHAH for Petitioner(s) : 1, DELETED for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 3 - 4. MR EE SAIYED FOR MR SIKANDER SAIYED for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/12/2008 ORAL JUDGMENT 1. Rule. Shri E.E.Saiyed, learned advocate waives service of notice of Rule on behalf of respondent No.4. With the consent of learned advocates appearing on behalf of the SCA/13477/2008 2/6 JUDGMENT respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner-original plaintiff has prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order dated 20.8.2008 passed by the learned Judge, City Civil Court at Ahmedabad passed below Exh.21 in Civil Suit No.374 of 2008 by which the learned Judge has allowed the application submitted by the respondent No.4 herein – third party permitting him to be joined as party defendant No.4 in the said suit. 3. It appears that the petitioner had instituted Civil Suit No.374 of 2008 in the City Civil Court at Ahmedabad against the respondents No.1 to 3 herein – original defendants for declaration and permanent injunction with respect to land bearing Plot No. 18-19/20 ad-measuring 169 sq.yards of Survey No.138 paiki situated at Fatehnagar, Behind Hotel Cozy, the description of which is mentioned in para 1 of the plaint. 3.1 In the said suit, the respondent No.4 herein-third party submitted application permitting him to be joined as party SCA/13477/2008 3/6 JUDGMENT defendant No.4 contending inter-alia that he has a right and/or interest in the aforesaid suit property and the learned Judge allowed the said application by permitting the respondent No.4 herein-third party to be joined as party defendant No.4. 3.2 Being aggrieved and dissatisfied with the aforesaid impugned order passed by the learned Judge, City Civil Court, Ahmedabad below Exh.21 in Civil Suit No.374 of 2008, petitioner-plaintiff preferred the present petition under Article 227 of the Constitution of India. 4. Shri Mehul Suresh Shah, learned advocate appearing on behalf of the petitioner-plaintiff has submitted that the property alleged to have been purchased by the respondent No.4 herein is different which can be borne out from the agreement to sell in favour of respondent No.4 and the description also does not tally. It is submitted that the description of the suit land is different then that of the description of the property mentioned in the alleged agreement to sell in favour of respondent No.4. Therefore it is submitted that the respondent No.4 herein-third party cannot be said to be a necessary, proper and/or interested party in the suit filed by the petitioner-plaintiff. Therefore, it is requested SCA/13477/2008 4/6 JUDGMENT to allow the present petition. 5. Shri E.E.Saiyed, learned advocate appearing on behalf of the respondent No.4 herein-third party has tried to support the impugned order passed by the learned Judge by submitting that the respondent No.4 herein-third party has purchased the land bearing Survey No.138 paiki and has entered into agreement to sell with the original land owner and being a purchaser he is required to protect his title and therefore he is necessary and proper party in the aforesaid suit so as to avoid any further confusion. It is also further submitted by him that so far as petitioner-plaintiff is concerned, he has no legal title over the land alleged to have been purchased by him with respect to the suit property. Therefore it is requested to dismiss the present petition. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. As stated above, the petitioner herein-original plaintiff had instituted Civil Suit No.374 of 2008 in the City Civil Court at Ahmedabad against the respondents No.1 to 3 herein – original defendants for declaration and permanent injunction SCA/13477/2008 5/6 JUDGMENT with respect to land bearing Plot No. 18-19/20 ad-measuring 169 sq.yards of Survey No.138 paiki situated at Fatehnagar, Behind Hotel Cozy and the description of the suit land is mentioned in para 1 of the plaint. It is the case on behalf of the respondent No.4 herein-third party that he has entered into an agreement to sell with the original land owner with respect to the land bearing Survey No.138 paiki ad-measuring 5644 sq.yards, and therefore, when he has purchased the property out of the land bearing Survey No.138 paiki, he has right, title and interest in the suit land. On considering the alleged document in favour of the respondent No.4 and the description mentioned therein as well as the description of the suit land mentioned in the plaint, the aforesaid contention cannot be accepted. The description mentioned in the suit land as well as the description mentioned in the alleged agreement to sell in favour of respondent No.4 are different, may be out of same survey number but different parcel of plots. In view of the same, the respondent No.4 cannot be said to be a necessary and/or proper party in the suit filed by the petitioner-plaintiff and/or it cannot be said that the respondent No.4 has right, title or interest in the suit land. Under the circumstances, the impugned order passed by the learned City Civil Judge, Ahmedabad deserves to be quashed and set aside. SCA/13477/2008 6/6 JUDGMENT 8. For the reasons stated above, the petition succeeds. The impugned order dated 20.8.2008 passed by the learned Judge, City Civil Court at Ahmedabad passed below Exh.21 in Civil Suit No.374 of 2008 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/