Rajasthan High Court - Jodhpur
Deepika Paliwal vs Civil Judge (Jr.Div.) Rajsamand & Ors on 17 May, 2017
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1482 / 2017
Deepika Paliwal W/o Late Shri Jagdish Chandra Paliwal, Aged
About 61 Years, B/c Paliwal R/o Mahaveer Nagar, Kankroli, Tehsil
and District Rajsamand.
----Petitioner
Versus
1. Civil Judge (Jr. Div.) Rajsamand.
2. Shri Ramesh Chandra S/o Shri Pannalal, aged about 62 years,
B/c Manda Ki Gawadi, Kankroli, Tehsil and District Rajsamand.
3. Nagar Palika Mandal, Rajsamand through its Commissioner,
Tehsil and District Rajsamand.
4. State of Rajasthan through Tehsildar Rajsamand, Tehsil and
District Rajsamand.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. J.K. Chanda
For Respondent(s) : Mr. R.J. Punia
_____________________________________________________
JUSTICE VINIT KUMAR MATHUR
Order
17/05/2017
The present writ petition has been filed against the order
dated 08.11.2016 whereby the application under order 1 Rule 10
CPC has been rejected.
Briefly stated the facts of the case giving rise to the present
petition are that the father-in-law of the petitioner Mr. Pannalal
surrendered total land of Khasara No.81 and some land of Khasra
No.82 in village Hawala, District Rajsamand to the State
Government for utilizing the same for public purpose i.e.
constructing the public road.
The fact of surrendering the above piece of land is admitted
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in view of the order passed by Tehsildar Rajsamand on
30.06.2005/01.07.2005 and, therefore, the consequential
mutation entries made in the revenue record. In the vicinity of
the subject piece of land, house of the present petitioner is located
and in front of the same the dwelling house of the respondent
No.2 Ramesh Chandra is located. On the piece of land occupied
by respondent No.2 certain constructions were already in
existence prior to the surrendering the land in 2005 by the father-
in-law of the petitioner. On a complaint being made by the
petitioner with respect to certain encroachments being made by
respondent No.2, the proceedings with respect to the removal of
those alleged encroachments was undertaken by the Nagar Palika
Rajsamand.
Aggrieved of those proceedings the respondent No.2 Ramesh
Chandra preferred Civil Suit for perpetual injunction and the
learned Civil Judge, Junior Division, Rajsamand after hearing
parties on the application under order 39 Rule 1 and 2 CPC passed
an order dated 28.07.2012 by which the application for temporary
injunction of Shri Ramesh Chandra was allowed.
During the pendency of the suit, the petitioner preferred an
application under Order 1 Rule 10 stating therein that she is
necessary party in the matter as the land on which the
encroachment exists was surrendered by her father-in-law in the
year 2005 for the public purposes. Acting on the complaint filed
by the petitioner, the State authority have undertaken the process
of removal of the encroachment against Shri Ramesh Chandra.
Therefore, to espouse the cause of public at large and for the
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better utilization of the land for the purpose of way to be used by
the public at large, the petitioner is necessary party. It is further
submitted that the personal rights of the petitioner with respect to
the proper use of his house is also effected by the said
encroachments made by the respondent No.2.
Opposing the arguments, learned counsel for the
respondents submits that there is no cause of action against the
petitioner which has been subject matter of the suit and further no
relief is prayed against the petitioner in the suit. Learned counsel
for the respondents further submits that on the principle of
dominous litis also the petitioner is not entitled to be arrayed as
party respondent in the matter. Learned counsel for the
respondents relies upon the judgment of this court reported in
2012(3) DNJ (Raj.) 1370; Kishan Sharma & Anr. Vs. Gram
Panchayat, Niwaru & Ors.
Learned counsel for the respondents also submits that the
petitioner may agitate his personal grievances by filing a separate
suit if he is aggrieved of any inconvenience or any inaction against
the State authority including the respondent No.2.
Heard learned counsel for the parties at length.
The fact of the matter that the father-in-law of the petitioner
has surrendered the land to the State Government in the year
2005 is on record and after the surrender, it is the State
Government who is the custodian of the land. True it is that on
the complaint of the petitioner the machinery of the State
Government has been put in motion for taking recourse for
removal of the trespass or illegal encroachments on the
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Government land. Once the machinery of the State Government
has been put in motion the job of the complainant is done and it
cannot be presumed that the State Government will not take the
appropriate action in the matter for removal of the encroachments
from the respondent No.2.
I am of the view that once the land has been surrendered
and the process for removal of the encroachment is undertaken by
the authority of the State Government, the impleadment of the
petitioner as respondent in the matter is necessary. Further there
is no reason to disbelieve at this stage that the appropriate
measure will not be taken by the State Government to remove
encroachment from the public path. I am fully in agreement with
the order passed by the learned Court below on 08.11.2016 which
reads as under:-
"mHk;i{k ds rdksZ dks lquk x;k rFkk i=koyh dk voyksdu fd;k x;kA
i=koyh ij miyC/k dfe'uj fjiksVZ fnukafdr 16-10-2004 ds lkFk layXu
uD'ks esa vkjkth la[;k 81 ds i'pkr~ 40 QhV dk jkLrk] mlds i'pkr~
izkFkhZ;k nhfidk ikyhoky dk edku fLFkr gSA izkFkhZx.k }kjk vius izkFkZuk
i= esa ;g vafdr fd;k gS fd izkFkhZ la- 1 dk edku o mldh [kjhn'kqnk
Hkwfe vkjkth la[;k 82@3 esa fLFkr gS rFkk jkLrs dh Hkwfe ij oknh }kjk
dCtk fd;s tkus ls bl Hkwfe ds mi;ksx ls izkFkhZx.k oafpr gks tk;saxs]
ijUrq iwoZ of.kZr dfe'uj fjiksVZ esa layXu uD'ks ds vuqlkj izkFkhZx.k dk
edku vke jkLrs ds i'pkr~ gS rFkk izkFkhZx.k ;g Li"V ugha dj ik;s gSa
fd oknh }kjk ;fn dksbZ voS/k fuekZ.k dk;Z mDr Hkwfe ij fd;k gS rks
mlls izkFkhZx.k ds mi;ksx&miHkksx esa fdl izdkj ls ck/kk dkfjr gks jgh
gS D;ksafd mDr uD'ks esa vkjkth la[;k 81 esa fVu'ksM o dPpk dejk
fufeZr gS] rRi'pkr~ 40 QhV dk jkLrk vkSj mlds i'pkr izkFkhZx.k dk
edku fLFkr gSA vr% pwafd izkFkhZx.k ;g Li"V ugha dj ik;s gSa fd os okn
esa fdl izdkj ls vko';d i{kdkj gS] vr% bl Lrj ij mUgsa i{kdkj
cuk;s tkus dk dksbZ dkj.k izrhr ugha gksrk gSA ,slh fLFkfr esa izkFkhZx.k }
kjk izLrqr izkFkZuk i= varxZr vkns'k 1 fu;e 10 fl-iz-la- [kkfjt fd;k
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tkrk gSA "
Further as it has been held by this Court in the case of
Kishan Sharma & Anr. (supra) in paragraph 8 which is as under:
"8. It is settled proposition of law that the plaintiff is
dominus litis and normally it is for him to select his
adversory from whom he seeks relief and it was not
for a Court to ask him to join any order person as
party to the suit. It is not a province of a Court of law
to interfere with that right. If plaintiff does not join
the necessary or proper party, consequences will
ensue and he will suffer. It is not a matter for the
Court to worry about. Viewed from this angle, in the
case of a permanent and mandatory injunction, the
respondent Nos. 2 and 3 are not found to be a
necessary party or a proper party in the instant case,
as the petitioners are found not to have sought any
relief against them. Both the parties have been
claiming possession over the disputed land and both
the parties have filed separate suits relating to one
subject matter. The respondent Nos. 2 and 3 are
found to have filed a suit way back in the year 2004
and in that suit the plaintiff did not endeavour to
implead the petitioners as a party defendant,
whereas, in the instant case, when the suit is found to
have been filed for permanent and mandatory
injunction, the respondent Nos. 2 and 3 have been
allowed to be impleaded as a party, by the learned
trial Court. The approach of the learned trial should
be inconfromity with the provisions of law. The order
is found to be arbitrary, capricious and the same
being not found to be apt, deserves to be set aside."
Therefore, it is for the plaintiff to chose against whom he
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wants to proceed in the matter. Hence in the present case
petitioner is not and cannot be treated as a necessary party to the
suit proceedings.
In view of whatever has been stated above, I do not find
force in the petition. The same is, therefore, rejected.
(VINIT KUMAR MATHUR), J.
Ramesh/106