(1) WP. 3423.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3423 OF 2010 1] Amol S/o Sadashiv Dange Age : 22 years, Occu.: Education 2] Dipak S/o Sadashiv Dange, Age : 27 years, Occu.: Service 3] Sadashiv S/o Murlidhar Dange Age : 48 years, Occu.: Agriculture All R/o Dahegaon Korhale, Tq. Rahata, Dist. Ahmednagar .. Petitioners VERSUS 1] Suresh S/o Appaji Dange Age : 50 years, Occu.: Agriculture, 2] Jalindar S/o Appasaheb Dange Age : 53 years, Occu.: Agriculture, Both R/o Dahegaon Korhale, Tq. Rahata, Dist. Ahmednagar .. Respondents Mr. V.H. Dighe, Advocate for the Petitioners Mr. S.S. Chaudhari, Advocate h/f. Mr. Y.S. Chaudhari, Advocate for the respondent no.1 ... CORAM : V.R. KINGAONKAR, J. DATED : 16TH JUNE, 2010 ORAL JUDGMENT:- 1] Rule. Rule made returnable forthwith and heard finally by consent of the parties. (2) WP. 3423.2010 2] By this Petition, the petitioners seek to challenge orders dated 7.4.2010 rendered by the learned Civil Judge Junior Division, Rahata on their application (exhibit 17) filed in suit (bearing Regular Civil Suit no. 91 of 2010). By that order, their application seeking leave to implead themselves as parties to the suit, has been dismissed. 3] The dispute lies in a narrow campass. The respondent no.1 filed suit against the respondent no.2 claiming relief for fixation of boundaries of their lands by joint measurement. The respondents are real brothers inter-se. They have purchased separate small fragments out of land gat no.256 from the petitioner no.3. According to them, there existed dispute between themselves about the boundaries of their fragments which comprises of 00H 16R and 00H 6R, respectively, and therefore, the suit was filed. It is pertinent to note that on the very next day an application for joint measurement through T.I.L.R. was filed and it was allowed. The petitioners allege that their presence in the suit is necessary because they are co-sharers of the same land and fixation of the boundaries of only two small fragments was likely to impair their legal rights and that the respondents were likely to grab some more land under the guise of fixation of the boundaries. The learned Civil Judge came to the conclusion that presence of the (3) WP. 3423.2010 petitioners was not necessary because they have no concern with the two fragments which are mentioned in the suit. Therefore, the application was rejected. 4] Heard learned counsel for the parties. 5] The plaintiff is ordinarily dominus litos Obviously, in ordinary course, without the consent of the plaintiff, it would not be proper to add third party to the suit. At the same time, it is well settled that if there is likelihood of causing some hardship to the third party, or impairment of the rights of the third party, due to the non-joinder, then it would be necessary to join such third party for final and effective adjudication of the suit. The very conduct of the respondents go to show that there was no genuine dispute amongst themselves but they collusively desired to get the respective lands measured through the process of the Court. It was nobody’s case that the respondent no.2 had encroached over land of the respondent no.1. They could have measured the land without the assistance of the Court. The Court is not an inter-meddling agency for appointment of the T.I.L.R. to get the lands measured at the will of the parties. The learned Civil Judge failed to notice the conduct of the respondents in joining hands for the purpose of joint measurement. It cannot be said that the petitioners have no concern with land gat no. 256. The entries in the (4) WP. 3423.2010 7/12 record show that the petitioners 1 and 2 have shares in the said land. It is necessary to locate whether the land gat no. 256 is actually sub-divided in different parts or that it is a compact land and whether the shares which are indicated in the plaint, are really segregated from the other portions of the land. Needless to say a comprehensive measurement may be necessary, instead of carrying out measurement only to the extent of shares described in the plaint. 6] Considering the foregoing reasons, it is explicit that the presence of the petitioners in the suit is necessary for the purpose of effective and final adjudication thereof. In this view of the matter, the impugned order is quite un-sustainable and liable to be interferred with. Hence, the Writ Petition is allowed. The impugned order is set aside. The application (exhibit 17) filed by the petitioners in the suit bearing Regular Civil Suit no. 91 of 2010 be deemed as granted and they shall be impleaded as defendants in the suit. Rule made absolute accordingly. No costs. Sd/- [V.R. KINGAONKAR, J.] arp