ORDER :- This revision application ia against an order passed by the Civil Judge (Junior Division), Chandrapur, in Regular Civil Suit No. 41 of 1972 holding that the suit was bad for mis-joinder of causes of action and parties.

2. The brief facts which may be stated, and which are not in dispute, giving rise to this revision are that the plaintiffs are the owners of 2 different plots of lands Nos. 76 and 77. The plaintiffs are father and son. The plots 76 and 77 belonged to them as members of a Joint Hindu family once. Later the parties came to a partition. A godown stands built upon both the portions of plots 76 and 77. To the south of this building and plots of land is the property of defendants 1 and 2 being Plot No. 78. The plaintiffs complained that by the act of the defendants digging 5 pits for the purpose of erecting cement pillars and constructing a plinth thereon, the defendants have encroached upon plot No. 77. A contention was raised that the suit is bad for mis-joinder of parties and causes of action, which as stated above, succeeded. The present revision application is directed against that order.

3. Now it is well settled that in order to determine whether the plaint is bad for misjoinder of causes of action and parties, one has to look to the plaint. Now looking to the relevant and material paras 1, 4A, 4B and 9 and 2 of the plaint, it will be seen from para 1 that the plaintiffs set out the fact of partition between them and say further that the plaintiffs own and passes plot No. 77 having an area 2470 sq. ft. and the building thereon which is also over partly plot No. 76. In plot No. 77 apparently both the plaintiffs 1 and 2 were interested. The building standing on plot No. 77 also extends over plot No. 76 and this building is jointly owned. The reference to ownership of plot No. 76 and building thereon are incidental and not material. Those references and the rather imprecise averments in the plaint have created some ambiguity in the plaintiffs' case. Lastly in paragraph 1, the plaintiffs stated that in the partition plot No. 77 and the godown came to be divided into two parts, the dividing line being shown by letters M. R. the eastern portion going to the share of plaintiff No. 2 and the western portion going to plaintiff No. 1. Along with the plaint, is a map attached and that map will go to show that to the west of letters M. R., the property belongs to plaintiff 1, which is described as plot No. 77 while to the east of line M.R. is the property of plaintiff No. 2, which is partly on plot No. 77 and plot No. 76. To the south of this plot No. 77, is plot No. 78 belonging to defendants.

4. In para 4-A, the encroachment alleged to have been made by defendants by means of digging of pits for erecting concrete pillars from out of plot No. 77 is alleged to be 98 sq. ft. The plinth 40 feet in length, 21/2 feet in height and 1 foot in thickness and the well put up is shown in the plaint map by letters X, X1, E and O and red hatched lines and so far as that is concerned, it makes an encroachment on plot No. 77 to the extent of 75 sq. ft. The third encroachment on plot No. 77 is of 12 sq. feet. All these encroachments which are alleged to have been made by defendants on the property of the plaintiffs are set out in paras 4A, 4B, 6 and 7.

5. The learned trial Judge held that no common question was involved, though similar evidence, to some extent will have to be recorded and that was far from being a common question of law or fact. He felt that since the portions of the property belonging to plaintiffs 1 and 2 are different and since encroachments were on separate portions of plaintiffs 1 and 2 which went to them by reason of the partition and inasmuch as trespass is an independent act relating to each property, these were two different causes of action in which the plaintiffs were not interested and, therefore, in his opinion, the suit was bad for mis-joinder of causes of action and parties.

6. The plaint map will go t

Click Here to Read the rest of this document