AI Structured Summary
Not yet generated for this judgment
Judgment
This writ petition has been filed by the petitioners aggrieved against the order dated 25.9.2018 passed by the Civil Judge, Sanchore, whereby, the
application filed by the petitioners under Order I Rule 10 CPC has been rejected.
The respondent plaintiff filed a suit for declaration of easementary rights and permanent injunction in relation to right of way and sought permanent
injunction by impleading the State as well as the Tehsildar as party defendants to the suit.
The petitioners filed application under Order I Rule 10 CPC seeking impleadment as parties defendants to the suit inter alia with the submission that
the land in question was Gair Mumkin Samshan and that the same was being used by them as Cremation Ground and various Mausoleum of their
ancestors were situated therein and, in case, the applicants are not impleaded as party and the suit as prayed for was decreed, the same would result
in disrespect of the Mausoleum of their ancestors and, therefore, they may be impleaded as party defendants to the suit.
The application was contested by the plaintiff respondent inter alia with the submissions that though it is not in dispute that the nature of land in
question is Gair Mumkin Samshan, however, the applicants had no interest in the land as the same was not being used by them as Cremation Ground
and, therefore, the application is liable to be rejected.
The trial court after hearing the parties came to the conclusion that the State is already a party and the land in question belongs to the State and,
therefore, there was no necessity of applicants being impleaded as party defendants and consequently, rejected the application.
It is submitted by learned counsel for the petitioner that the trial court was not justified in rejecting the application filed by the petitioners, inasmuch as,
admittedly the land in question was Gair Mumkin Samshan and was being used by the petitioners as Cremation Ground and that despite the State and
Tehsildar being party, the suit is not being properly contested, inasmuch as, the same has already been ordered to be proceeded ex-parte qua
defendant no.1 and even the defendant No.2 is not appearing despite filing the written statement.
Learned counsel appearing for the respondents made submissions that for the claim made in the suit, the presence of the petitioners is not necessary,
inasmuch as, even otherwise under provisions of Section 251-A of the Rajasthan Tenancy Act, 1955, the plaintiff has the right to get declaration qua
the way either existing or a new and, therefore, the trial court was justified in rejecting the application.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
In view of the fact that the land in question is a Gair Mumkin Samshan, which aspect has been admitted by the respondent, insofar as, the grant of
way from the said Creation Ground in the suit filed by the plaintiff, the residents of that area have interest in the said public land and, therefore, the
rejection of the application on the ground that the land in question did not belong to the petitioners, apparently was not justified.
The trial court should have taken a comprehensive view of the matter and looking to the manner, in which, the suit was being contested on part of the
defendants also was an indicator towards the nature of interest being taken by the State in defending the suit and, therefore, the rejection of
application was not justified.
In view of the above fact situation, the petition filed by the petitioner is allowed. The order dated 25.9.2018 passed by the trial court is quashed and set
aside. The application filed by the petitioners under Order I Rule 10 CPC is allowed.
It is directed that as the combined application has been filed by the applicants, they would file a joint written statement and would defend the suit
jointly.