Babu Ram and others vs Durga Mandir and others

Rajesh Bindal, J.—Challenge in the present petition is to the order dated 5.2.2010 passed by the learned court below whereby the application filed by the petitioners for being impleaded as defendants in the suit, was dismissed. It is a suit filed by respondent no. 1-plaintiff for perpetual injunction against Municipal Committee, Thanesar, restraining it from encroaching upon the land described in the plaint which is claimed to be in the ownership of the plaintiff. In the aforesaid suit, the petitioners filed application for being impleaded them as defendants, on the ground that they being the residents of the area and portion of land for which injunction has been sought is being used by them as street, and they will be affected by the judgment of the court. The street was constructed by the Municipal Committee way back in the year 1973 and was even repaired and re-carpeted thereafter by it. The application having been rejected, the petitioners are before this court.

Learned counsel for the petitioners submitted that on the portion of land, for which the suit has been filed by respondent no. 1-plaintiff, a road exists for the last more than 37 years. The road was constructed by the Municipal Committee, later on it was repaired and re-carpeted by the Committee as well. The suit has now been filed seeking a restraint against the Municipal Committee from encroaching upon the land. In case the suit is decreed, the residents of the area, who have their houses nearby and using that land to approach Kurukshetra-Pehowa Road will be effected. In case the petitioners are impleaded as defendants, the plaintiff will not be prejudiced as they will file their written statement and lead their evidence only on one date of hearing. The trial will not be delayed.

On the other hand, learned counsel for respondent no. 1-plaintiff submitted that it is a suit which was filed by the plaintiff way back on 16.12.2003. The evidence of the plaintiff was completed on 27.1.2007. Thereafter, the defendant-Municipal Committee did not lead any evidence despite grant of last opportunity. The application in question was filed by the petitioners on 21.8.2008 seeking their impleadment in the suit as defendants. After the aforesaid application was dismissed, another application was filed by Saroj wife of Dr. Dinesh Chander, who is petitioner no. 31 in the present petition, for the same purpose, which is still pending before the learned Court below. The submission is that entire effort is to delay the proceedings. In fact, the land is owned by the plaintiff. The petitioners have an alternative route to approach Kurukshetra-Pehowa Road. The petitioners will not be effected by the judgment of the civil court in the case in hand.

Learned counsel for respondent no. 2 - Municipal Committee submitted that the road was constructed by the Municipal Committee at the place in the year 1973 and evidence to that effect will be led by it before the Court below.

After hearing learned counsel for the parties and considering the submissions made above, in my opinion, the petitioners are not the necessary parties to be impleaded in the suit filed by respondent no. 1-plaintiff against the Municipal Committee. It is the matter of record as to who is the owner of the property and whether the road existed or not and for that evidence can be led by the parties in the suit. The residents of the area, who may or may not be using the alleged road for approaching Kurukshetra-Pehowa Road, will not be the necessary parties as the site plan produced before this court is not showing that the petitioners have constructed their houses along with the road in dispute, which is sought to be claimed as private property by the plaintiff or the road by the petitioners and the Municipal Committee. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed.