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Judgment
The present writ petition under Article 227 of the Constitution of India has been filed by the petitioner against the impugned order dated 06.05.2026 passed by IIIrd Civil Judge (Junior Division) Raigarh which was arising out of the order dated 30.09.2024 passed in Civil Suit No.A/153/2021. By the order dated 06.05.2026 the application under Section 114 of CPC for review of the order dated 30.09.2024 has been rejected and by the order dated 30.09.2024 the application by the defendant No.1 under Order 1 Rule 10(2) CPC was allowed.
Learned counsel for the petitioners would submit that the petitioners are plaintiffs before the trial court who are prosecuting a suit for vacant possession of the suit land bearing Khasra No.60/5 Area 0.020 Hect. Situated at village Chhote Atarmuda, District Raigarh. In the suit, they are claiming vacant possession from the defendant No.1 who encroached the land of the plaintiffs. The petitioners got demarcated their land in which the possession of defendant No.1 was found and therefore they filed a suit for vacant possession. In the said demarcation report there is no involvement of proposed defendant disclosed. Had there been proposed defendant found in possession, their name should have been mentioned in the said demarcation report. In the civil suit only to frustrate the ultimate outcome of the decree, the defendant No.1 made frivolous pleading that he is not in possession of the suit land, but one Kripa Ram Nirala is in possession over there. The said Kripa Ram is in possession over the suit land since more than 15 years under an agreement executed by Bahadur Singh in the year, 2010. He would further submit that the application filed by the defendant No.1, Annexupre P/5, was allowed by the trial court whereas it is for the plaintiffs who are dominus litis of the suit to decide who are the necessary party and in the present case the plaintiffs after considering the demarcation report filed the suit for vacant possession against the defendant No.1 and the proposed defendant Kripa Ram Nirala is neither necessary nor proper party, therefore, he may not be impleaded in the suit. The consideration of the trial court is perverse and the same is liable to be set aside.
I have heard the counsel for the petitioners and perused the documents annexed with the petition.
The claim of the petitioners are based on the said demarcation report dated 20.07.2023 and as per his submission, in the said demarcation report, Annexure P/3, the possession of proposed defendant have not been disclosed and defendant No.1 was found in possession of the land of plaintiffs, however, in the written statement filed by the defendant No.1 he specifically pleaded in paragraph 18 & 19 that the defendant No.1 had purchased the land from one Bahadur Singh through registered sale deed dated 26.12.2003 and he is in possession over his purchased land. The suit land was agreed to be sold to Kripa Ram Nirala and after obtaining sale consideration he handed over the possession to him in the year 2008 itself and at present he is not in physical possession of the suit land, but one Kripa Ram Nirala is in possession over there. The plaintiffs should have sued for possession against the said Kripa Ram Nirala and not against the present defendant No.1. Since Kripa Ram Nirala has not been made as defendant who is in physical possession of the suit land, he is the necessary in the suit and he should be made as party defendant. Considering the pleadings of parties, the trial court has observed in its order dated 30.09.2024 that since the defendant No.1 has specifically pleaded that Kripa Ram Nirala is in physical possession of the suit land, the application filed by him was allowed and Kripa Ram Nirala was directed to be made as party defendant in the suit.
In case of Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited & Others, 2010(7)SCC 417, the Hon’ble Supreme Court has held in paragraph 13 as under :
“13.The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
“10.2Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
Considering the facts and circumstances of the case, pleadings of the parties and in view of specific pleading of the defendant that he is not in possession of the suit land, but one Kripa Ram Nirala is in possession of the suit land and as such the trial court has considered that Kripa Ram Nirala has interest over the suit land and he was directed to be made as party defendant in the suit. Thus, this court does not find any illegality or jurisdictional error in allowing the application filed by the defendant No.1. Though the plaintiffs are dominus litis of the suit, but in view of specific pleading of the defendant No.1 that Kripa Ram Nirala is in actual physical possession of the suit land and plaintiffs have to sue against Kripa Ram Nirala for vacation possession of the suit land, he is considered to be a necessary party in the suit.
Accordingly, the present writ petition fails and is hereby dismissed.