1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10335 OF 2009 Bhupal Anna Vibhute Petitioner versus Dhanchandra Appa Nirwane and others Respondents Vijay Killedar for petitioner. U.P.Warunjikar for respondent no.3. CORAM : A.S.OKA, J. DATE : 15th February 2010 PC :- 1. Heard learned counsel for the petitioner and learned counsel for the third respondent. The first respondent is the plaintiff and second and third respondents are the defendants. The first respondent is claiming to be the owner of a plot of land described in paragraph 1 of the plaint. The suit is for removal of the alleged encroachment made by the second and third respondents on the suit plot. The petitioner is a third party. The petitioner made an application under Rule 10(2) of Order I of Code of Civil Procedure, 1908 praying that he may be ordered to be impleaded as party to the suit. The first respondent-plaintiff supported the application. The said 2 application was rejected by the Trial Court. The petitioner made another application purporting to be an application under Order XLVII Rule 1 read with section 151 of the said Code of 1908. The said application has been also rejected by the Trial Court. By this writ petition under Article 227 of the Constitution of India, the petitioner has impugned both the aforesaid orders. 2. The submission of the learned counsel for the petitioner is that there is a material on record to show that the petitioner is the predecessor in title of the first respondent. He submitted that the material on record shows that second and third respondents have not only encroached on the suit plot but also on the adjoining property of the petitioner. He submitted that the petitioner will be the best person to throw light on the controversy involved in the suit. 3. I have considered the submissions. The petitioner is not disputing that the first respondent is the owner of the suit plot on which encroachment has been allegedly made. The petitioner is not claiming any interest adverse to the first respondent in respect of the suit plot. Therefore, the Trial Court was justified in coming to the conclusion that the petitioner is neither a necessary nor a proper party to the suit and at highest the petitioner can be a witness in the suit. If the case of the petitioner is that the second and third respondents 3 have made encroachment on his property, the remedy of the petitioner in accordance with law is always open and he can take proceedings for removal of the encroachment. 4. Subject to what is observed above, no case for interference is made out. The writ petition is rejected. (A.S.OKA, J.)