1. Heard learned counsel for the petitioners and learned counsel for respondent No.1.

2. Rule.

3. Rule is made returnable forthwith with the consent of learned counsel for both the parties and the petition is taken up for hearing.

4. By this petition filed under Article 227 of the Constitution of India, the petitioner is challenging the order dated 26.07.2017, passed by Ad-hoc Judge, City Civil Court, Bombay, thereby rejecting the Chamber Summons No.52 of 2016 in L.C. Suit No.1635 of 2014.

5. The said Chamber Summons was taken out by the present petitioner for impleading it as necessary party to the suit under Order I, Rule 10 of Code of Civil Procedure, on the grounds that the petitioner is the owner of the suit property, of which plaintiff-respondent No.1,is a tenant. The respondent No.1 has filed the instant suit challenging the Notice dated 22.04.2014, issued by the defendant Municipal Corporation, under Section 354A of the Mumbai Municipal Corporation Act, 1888, for carrying out unauthorized construction. As the property belongs to the petitioner and the petitioner being the owner thereof, it is submitted that petitioner is necessary to be impleaded in the suit. Whatever decision of the suit may happen, it is going to directly and substantially affect petitioner's interest in the suit property and therefore, he may be permitted to be joined in the suit.

6. This Chamber summons came to be resisted by respondent No.1 and the trial Court, has vide its impugned order, held that as the petitioner has not carried out the construction in respect of which the Municipal Corporation has issued notice, as it being illegal and unauthorized, petitioner's impleadment in the suit is not necessary. Petitioner can in it's own right take independent proceeding for recovery of possession of the suit property from respondent No.1. However, petitioner's presence being not necessary to decide the dispute involved in the suit, the trial Court has dismissed the said Chamber Summons.

7. While challenging this order of the trial Court, learned counsel for the petitioner has taken this Court, through the earlier litigation between the petitioner and respondent No.1. It is contended that in the present suit filed by respondent No.1, he has not given description of the stable. He has simply stated that he is in possession of the stable for more than 60 years and carrying on business of milk and dairy products therein. It is urged that in paragraph No.5 of the plaint, he has stated that the said stable was constructed as far as back in the year 1959; now it require changes, therefore, he has undertaken renovation of the said stable.

8. In this situation, it is urged that this Court has to advert to the earlier suit, which was filed in the year 1970, that is suit bearing R.A.E. Suit 3461 of 1970. In that suit, description of the tenanted property was given as survey No.10, Hissa No.5 part (1000 sq. y. approx.), Kaneri Bando, N.G. Road, Borivali (East).

9. Learned counsel for the petitioner has also referred to the judgment in L.C. suit No.824 of 2009 which was filed by respondent-plaintiff against defendant Municipal Corporation in which description is merely given as stable, named and styled as, “National Dairy” admeasuring 2000 sq. meters. In that suit a reference was made to the earlier suit bearing R.A.E. No. 3461 of 1970, which was filed in the Small Causes Court. The description of the suit property is given in that suit as Survey No.10, hissa No.5 part (1000 sq. yard).

10. Learned counsel for the petitioner, has then referred to the City Survey record, produced at page No.87 to show that survey No.10/5 is corresponding to C.T.S.No.531/1, 532/2 and 525/6; whereas the notice issued by the Municipal Corporation initially in the year 2009, under Section 351 of Mumbai Municipal Corporation Act, is in respect of the tabela structure which was situate in C.T.S. Nos. 531/1 and 2 and 526/6. Therefore, it is urged that the respondent No.1 is making encro