The main legal point established is that relief must be claimed against necessary parties for joinder, and the appointment of a local commissioner cannot be used for evidence collection.

ORDER :

1. This Miscellaneous Petition under Article 227 of the Constitution of India has been filed against the orders dated 20.09.2022 and 21.12.2022 passed by 1st Civil Judge, Senior Division, District Betul (M.P.) in RCA No. 13/2015 by which the applications filed by the petitioner under Order 1 Rule 10 CPC and Order 26 Rule 9 CPC have been rejected.

2. The petitioner has paid two sets of Court fee.

3. It is the case of the petitioner that the respondent No. 1 has filed a suit for declaration of title and permanent injunction. Undisputedly, the property in dispute was an ancestral property, which was partitioned amongst five sons of Late Ramkishan. It is the case of the plaintiff that the plot in question fell to his share, whereas it is the case of the defendant No. 1/petitioner that the said plot fell to his share. Since other brothers have alienated or constructed Suyog Colony on their land, therefore, they are necessary party because they would be in a better position to disclose the factual aspect of the matter. Another application under Order 26 Rule 9 CPC was filed for appointment of a local Commissioner to found out the total area of Suyog Colony as well as to find out that on how much part of the land, houses have been constructed, how many plots are lying vacant, the area on which road, drain, garden have been developed. According to the petitioner this fact can be ascertained only by appointment of a local commissioner.

4. By the impugned order dated 20.09.2022, the trial Court rejected the application filed under Order 1 Rule 10 CPC and by 21.12.2022 rejected the application filed under Order 26 Rule 9 CPC.

Order 1 Rule 10 CPC.

5. It is clear from the plaint as well as contents of the application filed by the petitioner under Order 1 Rule 10 CPC that no relief has been claimed against the other brothers of the parties. On the contrary it is the case of the parties that partition had already taken place and all the brothers are in separate possession of their share. The dispute is only in respect of Khasra No. 425/129 area 0.325 hectare. The plaintiff is claiming that the said piece of land had fallen to his share, whereas it is the case of the defendant No. 1/petitioner that he got the said plot in partition. Thus, it is clear that no relief has been claimed against other brothers of the parties.

6. Furthermore, the petitioner is a defendant and the plaintiff is dominus litis and it is for the plaintiff to choose the parties against whom he wants to file a suit. At the most the defendant can point out regarding non joinder of necessary parties. Even if the application filed by the petitioner under Order 1 Rule 10 CPC is considered as an application of non-joinder of necessary party, still the counsel for the petitioner failed to point out as to how the other brothers of the plaintiff as well as defendants are necessary for adjudication of the suit. Necessary party means a party without whom no effective decree can be passed. This dispute in the present case is between the plaintiff and the defendant and they are not claiming that the partition, which was earlier done amongst sons of Ramkishan was not in accordance with law. Once the partition has not been disputed and all the other brothers are in possession of their respective shares, then it cannot be said that no effective decree can be passed in absence of the other brothers of the plaintiff as well as the defendant.

7. Accordingly, viewed from every angle, this Court is of the considered opinion that the trial Court did not commit any mistake by rejecting the application filed under Order 1 Rule 10 CPC.

Order 26 Rule 9 CPC.

8. Paragraph 2 of the application filed under Order 26 Rule 9 CPC reads as under:

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