Masood Ali Khan and Others vs Mohd. Yunus Khan and Others

G.D. Dube, J.—This revision has been preferred against the judgment and order of Civil Judge, Aligarh, rejecting the application of the revisionists under Order 1 Rule 10 of the CPC for being impleaded in Suit No. 661 of 1990 : Mohd Yunus Khan and Anr. v. Smt. Shahnaz Hussain and Ors.

The opposite parties 1 and 2 filed a suit against other opposite-parties claiming that they purchased the land in suit from Azizuddin and the Defendant opposite-parties 3 to 7 are interfering in their possession and constructions over the land purchased by them. The Defendant opposite-parties alleged that Azizuddin had actually left the land in suit as a park and had carved out twenty plots around the land. It was alleged that the Plaintiffs were not entitled to make constructions over the land in suit.

The revisionists moved an application for their impleadment on the ground that the land in suit has been shown as a park in their sale-deeds. They are interested in the park, for it is necessary for better enjoyment of their land. It was also urged that if the park ceases to exist, then this will result in untold inconvenience to the inhabitants of the locality as well as the revisionists.

The opposite-parties 1 and 2 contested the application. They alleged that the land in dispute was never a park. The ownership vested in Azizuddin. It was urged that the revisionists were neither necessary nor proper party for being impleaded in the suit.

The learned Civil Judge same to the conclusion that the revisionists were neither necessary nor proper party. It was also held that the suit was for permanent prohibitory injunction and no body can be impleaded in the suit. The learned Civil Judge also came to the conclusion that the revisionists were neither necessary nor proper party. It was also held that the suit was for permanent prohibitory injunction and nobody can be impleaded in the suit without consent of the Plaintiff. The learned Civil Judge also came to the conclusion that the revisionists have no concern with the land in dispute, therefore, they have no right to be impleaded.

It has been argued by learned Counsel for the revisionists that the land in dispute has been shown as park in the plan prepared by Azizuddin. Our attention was drawn to Annexure "1" to the application u/s 151, Code of Criminal Procedure. It was urged that a land measuring 190 feet long and 57'' 3" wide was left as a park. The houses of the revisionists are situated around this land. The Plaintiffs have purchased this very land of park. Consequently, if the constructions are made over this land, then environmentally the revisionists would actually be affected. It was urged that the revisionists have an interest in the land in dispute and they should be impleaded as Defendats.

Learned Counsel for the revisionists has drawn our attention to a case in Anurag Sharma v. Xth Addl. Distt Judge. 1991 All CJ 244 , and also a case in Bangalore Medical Trust Vs. B.S. Muddappa and others, . Our attention specifically drawn to paragraphs 22 and 29 of Bangalore Medical Trust''s case (supra). Relying on these paragraphs, it was urged that preservation of environment is the necessity of the day. Hence in all constructional activities the Courts should consider the question of environment and if it comes to the conclusion that by certain constructional activity of a party the environment is likely to be actually affected, then it should intervene and permit a party claiming a relief on the basis of environment to intervene in a suit where a party is allegedly violating the very principles of maintaining environment clean and healthy and indulges in undesirable constructions.

In the case of Bangalore Medical Trust (supra), the land in dispute shown as park was carved out and left as such by Development Authority. Later it was allotted to some persons for constructing a hospital. In a writ challenging the action of the authority it was held that the persons challenging the action of the authority have an interest in the park and thus had a ''locus standi''. In this case it was held that protection of the environment, open spaces for recreation and fresh air, playgrounds for children promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme.

In Anurag Sharma''s case, the subject matter in dispute was a public temple. It was a writ petition arising against an order in a revision by the Xth Additional District Judge rejecting the revision against an order of the trial Court, allowing an application under order 1 rule 10, Code of Civil Procedure, allowing impleadment of the Opposite-party. The Petitioner had purchased a piece of land from a co-operative Society. He had filed suit against some persons for declaration as well as injunction. The Respondents 7 to 8 were impleaded as Defendants on their application, alleging that a temple stands over the land in dispute and their right to worship will be affected if the relief claimed is allowed. They alleged that the temple would be demolished, if the construction over the law in suit has permitted. In this case, Hon''ble R.A. Sharma, J. quoted the observations of the Supreme Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, , which is as under:

A necessary party is one without whom no order can be made effectively; a proper party is one m whose absence an effective order can be made out whose presence is necessary for a complete and final decision on the question involved in the proceeding.

It appears from the papers on record that Azizuddin is a private coloniser. A person purchases a land from a coloniser only after seeking the facilities provided by the coloniser like good road, sewage system, electric light and parks or play ground. If the said coloniser chooses to sell the park land to some third person, then'' obviously the previous purchasers who were attracted by the scheme of colonisation where park was also left in the sarved out house sites, then obviously the purchaser of these house sites is a person affected. The revisionists are alleging that the land in dispate was left as a park and the Plaintiffs have purchased this very land. In these circumstances, we are of opinion that the revisionists, who have purchased the adjoining land, are interested persons and their impleadment is quite necessary in the suit.

For the reasons mentioned above, we are of opinion that the trial Court has erred in rejecting the application of the revisionists for impleadment. Even if the revisionists were not a necessary party yet they being presently affected by the judgment passed in the suit are a proper party. Hence, their impleadment ought to have been directed.

In the result, the revision succeeds and is allowed. The judgment and order of the lower Court are set aside. The application of the revisionists for impleament is allowed. These Respondents be now added as Defendants. We add revisionists as Defendants 6 to 9. The Plaintiff shall amend the plaint in trial Court amending and adding revisionists-Defendants 6 to 9. It shall also permit the Plaintiffs to make such consequential amendment as are required by this impleadment if an application to this effect is moved before it. The parties to appear before the trial Court on 22nd January, 1993 for further proceeding. The learned trial Court shall endeavour to dispose of this case as early as possible. Costs easy.

A copy of this order may be supplied within three days of this order to the parties on payment of usual charges.