1 cra105.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION NO. 105 OF 2006 1. Smt. Sushil Kaur W/o Sukhbirsingh Chhatwal, Aged : 56 years, Occ : Household, R/o Raj Tara Bungalow, Osmanpura, Aurangabad. 2. Gurbirsingh S/o Sukhbirsingh Chhatwal, Age : 40 years, Occ : Business, R/o As above. 3. Sathirsingh S/o Sukhbirsingh Chhatwal, Age : 38 years, Occ : Business, R/o As above. ..PETITIONERS -VERSUS- 1. M/s Aurangabad Ginning & Pressing Factory, Jaffar Gate, Aurangabad, Through its G.P.A. Kantilal S/o Hiralal Mithawala, Age : 70 years, Occ : Service, R/o Supari Hanuman Road, Aurangabad. 2. Municipal Corporation, Aurangabad through its Commissioner. ..RESPONDENTS ... Shri K.C. Sant, Advocate for applicants. ٍShri P.S. Sonpethkar, advocate for respondent no.1 ... CORAM: S.S. SHINDE,J. Reserved on : 23rd August, 2011 Pronounced on : 22nd September, 2011 2 cra105.06 : JUDGMENT: 1. This Civil Revision Application is filed aggrieved by the order passed on application below Exhibit-10 in Misc. Civil Appeal no. 177 of 2006 dated 1st December, 2006 by the Adhoc Additional District Judge-3, Aurangabad. 2. The revision applicants herein are the original plaintiffs, who have filed the suit against the respondent no.2 praying for perpetual injunction from demolishing the construction on the suit land. In the said suit, the revision applicants filed an application for temporary injunction. However, same was rejected. Being aggrieved with the same, the applicants filed Misc. Civil Appeal no. 177 of 2006 before the District Court along with application Exhibit-5 for temporary injunction. The respondent no.1 herein thereafter 3 cra105.06 filed application Under Order 1 Rule 10(2) of Code of Civil Procedure for addition of parties in Misc. Civil Appeal no. 177 of 2006. The avernments in the said application filed by the respondent no.1 herein are as under :- " 1. That, the applicant being owner and possessor of the property and portion of Survey No. 57, having Municipal No.4-18-47/1, C.T.S. No. 13162 and 13163, situated at Jafar Gate, Aurangabad. They filed the suit bearing R.C.S. No. 218/1972 for possession of a room admeasuring 10' X 10' and for perpetual injunction for the rest of portion against (1) Nutanbai, (2) Ravelsingh, (3) Pratpsingh and (4) Mir Maqsood Ali Khan. After hearing the suit on merit, it came to be decreed by the Hon'ble 2nd Joint Civil Judge, Junior Division, at Aurangabad, by its Judgment and Decree dated 30.9.1975. The defendnats challenged said decree by filing R.C.A. No. 195/1975 in the Hon'ble District Court, Aurangabad, and said appeal came to be allowed on 25.10.1978. Against the said decree of Appellate Court, the present applicant preferred IInd Appeal No. 189/1979 in the Hon'ble High Court and said appeal came to be allowed on 16.12.1991, but, due to interpolation in the said judgment in High Court, the applicant filed C.A. No. 415/2003 for correction of Judgment and deletion of interpolation. In said 4 cra105.06 C.A. the husband of the plaintiff No. 1 Sukhbirsingh, who purchased said property during pendency of the suit was also unpleaded as party and after hearing him, C.A. No. 415/2003 came to be allowed on 21.09.2004. Sukhbirsingh unsuccessfully challenged the said order by filing S.L.P. No. 21339/2004 in Hon'ble Supreme Court of India. 2. That, the applicant filed Reuglar Darkhast No. 104/1994, for execution of decree passed in R.C.S. No. 218/1972 and confirmed by Hon'ble High Court. The applicant came to know that the husband of present plaintiff no.1 is intending to start construction on suit property and therefore, he filed application for temporary injunction restraining Sukhbirsingh and others and defendants from changing the nature of suit property or alienating the said property or creating third party interest on 6.7.2005. The Hon'ble 5th Joint Civil Judge, Junior Division, Aurangabad, after hearing pleased to allow the application on 22.8.2005. During the pendency of said application status-quo order was passed on 8.7.2005. In spite of injunction order, Sukhbirsingh and after his demise the present plaintiffs continued the construction work and therefore, the applicant filed an application U/o 39 Rule 2-A of Civil Procedure Code, which is pending. 3. As such, the construction work of the plaintiffs is during enforcement of injunction order 5 cra105.06 passed by the Court at the instance of the defendants as such, the applicant is interested party being title holder of the suit property. The plaintiffs have hided all above referred material facts from the Hon'ble 2nd Joint Civil Judge, Senior Division, Aurangabad, and tried to obtain equitable relief of temporary and perpetual injunction by misguiding the Hon'ble Court. When, the applicant came to know about filing of the said suit, the applicant also filed application for adding him as party in R.C.S. No. 870/2006 and the said application is for consideration before the said Court. 4. However, the present appellant/ original plaintiff filed appeal in this Hon'ble Court and thereby challenging the order of 2nd Joint Civil Judge, Senior Division, Aurangabad, issuing show cause notice and not granting interim relief. The said appeal is also fixed for final hearing in this Hon'ble Court. As such, the applicant being title holder and interested party in the suit and the applicant wanted to protect the illegal construction made by her by violating the order of injunction and that is also on the property of the applicant. As such, the applicant may kindly be added as party to this appeal. The applicant is interested party in the present appeal. HENCE, IT IS PRAYED THAT : This application may kindly be 6 cra105.06 allowed and the applicant may be added as respondent in the present appeal and oblige." 3. The said application filed by the respondent no.1 herein was allowed by Adhoc Additional District Judge-3, Aurangabad thereby directing the revision applicants herein, to add respondent no.1 as defendant in appeal within three days from the date of order. Hence, this Civil Revision Application. 4. It is the case of the revision applicants that late Sukhbirsingh Tarasingh Chatwal, the husband of revision applicant no.1 and father of applicant nos. 2 and 3, was the owner and possessor of property bearing CTS no. 13163 admeasuring 1411.5 Sq. Meters (part of Survey no. 56) situated at Bahadurpura, Jalna Road, Aurangabad. Late Sukhbirsingh was in possession of the property since 1971. N.A. permission was granted by the Collector on 18th September, 1992. Since, 1979, there was 7 cra105.06 an entry of late Sukhbirsingh in the P.R. card. In 1992, late Sukhbirsingh also constructed a compound wall for protection of the suit property. He submitted a plan for construction permission. However, the respondent no.2 herein neither granted permission nor rejected the permission, therefore, in view of the deeming provision under the Maharashtra Regional and Town Planning Act, there is a deemed permission, and therefore, the construction of building as per the plan was started. Sukhbirsingh died on 15.04.2005 and the names of the present applicants have been recorded as owners of the property being legal heirs of late Sukhbirsingh. In the meanwhile, the respondent no.2 sanctioned the plan and granted permission to construct the building as per the plan by its order dated 23rd June, 2005. After the death of late Sukhbirsingh, the names of the revision applicants are recorded 8 cra105.06 in the city survey record. It is the case of the applicants that some ill-motivated people have made complaint to the respondent no.2 stating that this construction is illegal and it be demolished. The respondent no.2 thereafter issued the notice to the revision applicants. The applicants replied the said notice and pointed out that they have not committed any illegal act nor they have violated construction permission. It is further submitted that the respondent no.2 by ignoring the permission granted by its own authority is now bent upon to demolish the construction at the behest of some ill-motivated persons. Therefore, the applicants herein filed the Civil Suit bearing Regular Civil Suit No. 870 of 2006 in the Court of Civil Judge, Senior Division, Aurangabad. It is submitted that application for temporary injunction was also filed. However, same came to be rejected by the Civil 9 cra105.06 Judge, Senior Division, Aurangabad. Therefore, the applicants filed Misc. Civil Appeal before the District Judge, Aurangabad. The application for temporary injunction was also filed. It is the case of the applicants that the respondent no.1 without there being any concern with the dispute in the suit, made application on flimsy grounds and prayed for adding it as party respondent in the appeal. In fact, the respondent no.1 has no concern with the property in question. The say was filed by the applicants to the application filed by the respondent no.1 for adding him as party stating therein that such application is not maintainable. The plaintiffs themselves are the masters of their suit and they can not be compelled to add any party to the litigation. It is submitted that the applicants have not claimed any relief against the respondent no.1 and the applicants carrying out the construction as per the plan 10 cra105.06 submitted and sanction granted by the respondent no.2 herein. It is further the case of the applicants that when there is no relief prayed against the respondent no.1, directing the applicants to add the respondent no.1 as party in the appeal itself is abuse of process of law and further it would add to complications. It is submitted that no person can be forced to litigate against the person who is not concerned with the subject matter of the suit. It is further submitted that the respondent no.1 is neither to gain nor to loose in the litigation pending between the applicants and the respondent no.2. Therefore, for all these reasons, the impugned order allowing application of the respondent no.1 and directing the revision applicants to add him as party defendant in the suit, ought not to have been passed by the Appellate Court. 5. The learned counsel appearing for the revision applicants submits that before filing 11 cra105.06 of suit bearing Regular Civil Suit no. 218 of 1997, the property of the respondents was sold to one Narsing Kandi by registered sale deed. However, when the respondent no.1 firm moved Execution Petition no. 104 of 1994, said Kandi has also moved Execution Petition no. 166 of 1993 pursuant to the alleged Sale Deed. Thus, the respondent no.1 has no concern with the said property in suit. It is submitted that the Civil Suit bearing no. 218 of 1972 was filed by respondents for possession of two huts admeasuring 10 feet X 10 feet abutting to Jalna Road in Survey no. 57 and for injunction not to disturb the possession over the suit land. The respondents have no concern with the property bearing CTS no. 13163. By suppressing material facts and by misrepresentation the suit came to be filed only with an intention to grab the property when in fact they have no concern whatsoever with the property owned by the applicants. It is submitted that the property mentioned in the prayer clause is 12 cra105.06 totally different than the property belonging to the applicants. Further, in the entire suit CTS number is not mentioned though CTS number is given in the year 1971. It is submitted that the said suit was decreed on the basis of a Map Exh. 118, which clearly shows the property is in Dawoodpura i.e. towards southern side of Jalna road, whereas the property of the applicants is on northern side of Jalna Road. It is submitted that, the defendants preferred appeal. In the Second Appeal, the name of Nutanbai from whom the suit property was purchased, was deleted. It is further submitted that it is pertinent to note that said Sukhbirsingh was never party in the entire suit proceeding, i.e. Regular Civil Suit no. 218 of 1972, Regular Civil Appeal no. 195 of 1978, Second Appeal no. 189 of 1979 and Civil Application no. 415 of 2003. The judgment delivered in suit is a Judgment in personum and therefore, since late Sukhbirsingh was not a party to it, it is not 13 cra105.06 binding upon the applicants. It is further submitted that as per the record from Registrar of Firms, the firm Aurangabad Ginning & Pressing Factory, Aurangabad was dissolved way back in the year 1963 itself and more specifically on 31st March, 1963. The alleged power of attorney in favour of Kantilal Mithawala given by one Minichor Chinoy is false and wrong. Re- delegation of power that too, when the firm itself is not in existence is not recognized by law. It is further submitted that at the time of filing of suit, the width of Jalna road was 20 feet, whereas now the width of road is 132 feet. Even now the property of the applicants is 40 feet away from Jalna Road. It is further submitted that the area of suit property shown in the plaint is 15000 feet, whereas, the area shown below Exh. 118 comes to be 14000 feet. The area of CTS No. 13162 is 10800 feet, thus, total comes to 25800 feet. 14 cra105.06 However, the decree is only to the extent of 14000 feet. On this ground also the property in Regular Civil Suit no. 218 of 1972 and the property in possession of the applicants does not match anywhere. It is further submitted that in the Judgment of Mantralaya in proceedings bearing No. LAND/3904/782/CR123/L.1/CR117(12)/2004/A & R, it is clearly held that the property is different than suit property bearing Survey no. 57. It is also held that Kantilal Mithawala does not have valid power of attorney. This judgment was given in view of the judgment passed by this Court. It is submitted that there is a report of Bailiff in the Execution Proceedings at Exhibit-50 that the property mentioned in prayer clause of suit No. 218 of 1972 is not identifiable. It is further mentioned that the plot no. 4-18-47/1 i.e. the property of the applicants is on west side of property mentioned in civil 15 cra105.06 suit no. 218 of 1972 and it is not concerned with the property involved in present proceeding. In no any proceeding including he Execution Petition, the respondent no.1 has ever sought that they have lost possession. Thus, the respondent no.1 is not necessary party in the proceeding filed by the applicants and hence, the respondent no.1 has no locus standi. It is further submitted that the Municipal Corporation has filed affidavit in Writ Petition no. 3628 of 2006. In the said affidavit, it is clearly stated by the Municipal Corporation that, the Corporation has granted construction permission by duly considering the ownership of the applicants. It is further submitted that, the respondent no.1 had taken objection and after considering that also, it was found that the applicants are the owners. Hence, the permission granted by the Corporation is by following due process 16 cra105.06 of law. It is submitted that against the order of Mantralaya, a Writ Petition is filed by respondent no.1 and the same is pending and also there is no stay by this Court. Therefore, relying upon the avernments made in the Civil Revision Application, grounds raised therein, Annexures to the said Revision Application and the written notes of arguments filed by the applicants, the learned Counsel appearing for the revision applicants would submit that this Revision Application deserves to be allowed. 6. On the other hand, the learned counsel appearing for the respondent no.1 submitted that Revision Application filed against the order allowing the addition of party and therefore, the order is interlocutory and no Civil Revision Application is maintainable. Because of the order impugned in the Civil Revision Application, the proceedings before the Lower Court are not likely to be decided 17 cra105.06 finally. There is also no final decision in the case. Thus, at the outset, it is submitted that the Civil Revision Application is not maintainable and there is no question of hearing on merits of the case. The learned counsel further submitted that the respondent no.1 Aurangabad Ginning & Pressing Factory had filed Civil Suit bearing Regular Civil Suit no. 218 of 1972 before the Civil Judge, Junior Division, Aurangabad against one Nutanbai and three others for injunction and declaration of ownership. The plaintiff had claimed that the plaintiff is owner of the land survey no. 57 bearing Municipal No. 4-18-47/1 admeasuring 19A 8 G situated at Jafar Gate, Bahadurpura, Aurangabad. It is further submitted that as the defendant in the said suit had tried to encroach over portion of survey no. 57 and erected hut of 10 ft. x 10 ft., the suit was filed claiming injunction on the basis of 18 cra105.06 title. The learned Judge has framed issues and held that the plaintiff i.e. respondent no.1 herein, is owner of the suit property. The learned counsel appearing for the respondent no.1 invited my attention to the copy of the judgment in Regular Civil Suit 218 of 1972, which is annexed with the written notes of arguments. It is proved that, the plaintiff i.e. respondent no.1, is owner and is in possession of the suit property and granting decree for injunction and also recovery of possession of property admeasuring 10 ft x 10 ft. is sought by the plaintiff. It is submitted that aggrieved by the judgment and decree in Regular Civil Suit no. 218 of 1972, the Regular Civil Appeal no. 195 of 1975 was filed before the District Court, Aurangabad and same came to be allowed. Against that, the plaintiff had filed Second Appeal no. 189 of 1979 before this Court. It is submitted that by judgment dated 19 cra105.06 16.12.1991, this Court has allowed the Second Appeal and restored the decree of the trial Court. Appeal was allowed in entirety. However, there was interpolation and tampering in the judgment. Para No. 17A on page 24A was added and in the operative order words "as against defendant no.2" have been added. In view of this, the plaintiff filed Civil Application no. 415 of 2003 before this Court. In the said application, one Sukhbirsingh S/o Tarasingh Chatwal suo motu appeared and filed Civil Application no. 5402 of 2004 and stated that he had purchased the suit property during the pendency of Appeal, by registered sale deed dated 27.10.1978 and he claimed that he is in possession of the suit property and if this Civil Application is allowed, he is also likely to be affected. This Court however considered the application and allowed his intervention. He was heard at length along with other 20 cra105.06 respondents and this Court held that there was tampering and directed to correct the judgment accordingly. Against the said judgment of this Court, the husband of the present applicant no.1-Sukhbirsingh Chatwal had approached the Hon'ble Apex Court in S.L.P. No. 21339 of 2004 and same was dismissed on 25.10.2004. It is submitted that during the pendency of the suit, the said Sukhbirsingh had purchased property and in violation of the Court order, he had started construction in the year 2005 over the suit property. It is submitted that the present plaintiff had filed Regular Darkhast no. 104 of 1994. When in the year 2005, construction was started, the decree holder plaintiff has filed injunction application on 06.06.2005 and the said application was allowed by the Civil Judge, Junior Division, Aurangabad on 22nd August, 2005 and thereby the plaintiffs are restrained from carrying out construction over the suit 21 cra105.06 property. However, the construction is still continuing and therefore, the contempt proceedings are pending before the Trial Court. It is submitted that in utter disregard of order of this Court, the present applicant Sushil Kaur and others have executed sale deed in favour of third party in respect of suit property. Therefore, time and again, complaint was lodged by present plaintiff with the Municipal Corporation and other authorities. It is further submitted that one news item was published in the news paper and therefore, the Regular Civil Suit no. 870 of 2006 was filed by the revision applicants, in which no injunction was granted. As soon as the respondent no.1-Aurangabad Ginning and Pressing Factory came to know about the said suit, filed application for addition of parties. It is submitted that the present respondent no.1-Aurangabad Ginning and 22 cra105.06 Pressing Factory has filed application for addition of parties and same application was allowed by order dated 05.12.2005. It is submitted that the applicants herein by concealing all real material facts and litigation by filing Suit and Appeal have obtained the order of injunction. The illegal construction have been carried out in the said property. The sale deed is executed in violation of the order of this Court. It is further submitted that the respondent no.1 has filed Writ Petition no. 3628 of 2006 before this Court. In the said Writ Petition, the Municipal Corporation, Aurangabad has clearly stated that permission of construction given to Sushil Kaur Chatwal and others is revoked by order dated 14.08.2006 and Corporation is not reconsidering the same. The learned Counsel appearing for the respondent no.1 invited my attention to the order passed in the said Writ Petition and 23 cra105.06 Review Petition. It is submitted that action taken by the Municipal Corporation, Aurangabad is in pursuance of constant complaint made by respondent no.1 herein, who is real owner of the factory. It is submitted that the applicants have no regard to the law and the orders of this Court and flouted the same. It is submitted that in a proceedings i.e. Civil Application no. 415 of 2003, said Sukhbirsingh Tarasingh Chatwal, the husband of the applicant no.1, had made a statement that he had purchased the suit property from defendant no.1-Nutanbai and he is likely to be affected by the decision of this Court. It is further submitted that now the applicants in the subsequent proceedings are stating that the suit property i.e. the property purchased by them is different from the suit property. This is totally and intentionally false statement on oath in order to mislead the Court. It is further submitted that the suit 24 cra105.06 property which is purchased by the husband of the present applicant no.1 during the pendency of the suit from Nutanbai, and therefore, the respondent no.1 herein who succeeded in Civil proceedings against Nutanbai is necessary party to the suit filed by the applicants- plaintiffs. The learned Counsel appearing for respondent no.1 in support of his contention that the respondent no.1 is necessary party to the suit invited my attention to the title clause of Civil Suit bearing Regular Civil Suit no. 218 of 1972 and submitted that Nutanbai is the respondent no.1 in the said suit, which was filed by respondent no.1 herein. The learned Counsel further invited my attention to the title clause in Second Appeal no. 189 of 1979, where the Aurangabad Ginning and Pressing Factory i.e. respondent no.1 herein is appellant and Nutanbai is respondent no.1 therein. The learned counsel further invited my attention to the title clause of the Writ Petition no. 3628 of 2006 in which 25 cra105.06 the respondent no.1 is the petitioner and the Municipal Corporation, Aurangabad is respondent no.1 and there are also added respondents in the said Writ Petition i.e. Sukhbirsingh Chatwal, Sushilkaur Chatwal, Gurbirsingh Chatwal, Sathirsingh Chatwal and Rawelsingh Arjunsigh. Therefore, the learned counsel would submit that the applicants herein were made party respondents even in the said Writ Petition. The learned counsel further invited my attention to Review Application no. 56 of 2010 in Writ Petition no. 3628 of 2006, in which the applicants herein appear to be revision applicants in those proceedings and the respondent no.1 is party respondent no.1 even in those proceedings. The learned counsel further invited my attention to other documents and also submitted that the respondent no.1 is a necessary party in the suit, and therefore, the Appellate Court has rightly allowed the application filed by the respondent no.1 and 26 cra105.06 directed the applicants to add the respondent no.1 as respondent in the appeal. Therefore, such order cannot be