IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 15 OF FEBRUARY, 2024 WRIT PETITION No. 5136 of 2010 BETWEEN:-

NIKHIL RAO BHATJIWALE S/O S/O SUBHASH RAO BHATJIWALE , AGED ABOUT 32 YEARS, OCCUPATION:

R/O BHAINSA CHOUKI,KHASGI BAZAR,LASHKAR GWALIOR (MADHYA PRADESH)

.....PETITIONER (BY SHRI ROHIT BANSAL - ADVOCATE )

AND

1. SATISH TRIPATHI S/O SHRI KEDAR TRIPATHI R/O NEAR GAS AGENCY, BARODA, DISTRICT SHEOPUR (MADHYA PRADESH)

2. RAJU TRIPATHI S/O SHRI KEDAR TRIPATHI R/O NEAR GAS AGENCY BARODA DISTRICT SHEOPUR (MADHYA PRADESH)

3. NITIN RAO S/O GAJANAND RAO BHATJIWALE R/O SHEOPUR AT PRESENT R/O 1/27, SHIVAJI NIWAS, SHIVAJI PARK, ROAD NO.2, DADAR MUMBAI-28 THROUGH GENERAL POWER OF ATTORNEY SURAJ NARAYAN SHARMA S/O LATE SHRI KAIALSH NARAYAN SHARMA, R/O MAIN BAZAR, SHEOPUR, DISTRICT SHEOPUR (MADHYA PRADESH)

.....RESPONDENTS (NONE FOR THE RESPONDENTS )

This petition coming on for admission this day, the court passed the Signature Not Verified following:

ORDER The present petition under Article 227 of the Constitution of India is directed against the order dated 20.8.2010 passed by Third Civil Judge Class II, Sheopur in Civil Suit No.55A/2008, whereby the learned Trial Court while allowing the application under Order 1 Rule 10 of CPC had directed to implead respondent no.3 in the suit.

2. Short facts of the case are that the petitioner/plaintiff has instituted a suit for permanent preventive injunction against the respondents no.1 and 2 with respect to agriculture land bearing Survey No.141-Ka area 26 bigha 4 biswa situated in Village Bamori Jaat, Tehsil and District Sheopur claiming himself to be owner of the property.

3. The defendants no.1 and 2 appeared after service of notice and filed their written statement and while denying the plaint allegations had contended that they are in possession of the suit land on the basis of an agreement to sell dated 31.7.2004 executed by Gajanand Rao and Nikhil Rao (correct name is Nitin Chandra Rao), and inter-alia contended that the suit be dismissed.

4. Along with the plaint an application for issuance of temporary injunction was also filed on behalf of the petitioner/plaintiff and learned Trial Court after hearing the arguments allowed the application and issued temporary injunction vide its order dated 19.8.2008 and has restrained the respondents no.1 and 2 from making any interference in possession of the petitioner.

5. During pendency of the suit the respondent no.3 has moved an Signature Not Verified application under Order 1 Rule 10 (2) of CPC contending that he is the bhumiswami of the land and he has executed an agreement to sell in favour of the defendant no.1 and accordingly the defendant no.1 is in possession of the suit land. It was further contended therein that vide judgment and decree dated 16.12.1988 he has been declared as Bhumiswami and is in possession of the suit land, therefore, he deserves to be impleaded as defendant no.3.

6. A reply was filed on behalf of the petitioner/plaintiff and the application was opposed on the ground that respondent no.3 was neither a necessary nor proper party and the plaintiff being dominus litis cannot be compelled to join respondent no.3 as defendant against the wishes of the plaintiff and the respondent no.3 is free to file fresh civil suit.

7. Learned Trial Court after hearing the arguments, but without considering the rights of the respondent no.3 and also legal position applicable to the present case allowed the application vide impugned order.

Hence, the present petition.

8. Learned counsel for the petitioner has argued before this Court that the issue with regard to impleadment of third person to a suit preferred by the plaintiff is no more res integra and in that regard it was contended that the plaintiff is dominus litis and he has freedom with respect to impleadment of parties to the suit and he cannot be forced to implead any other person who is neither necessary nor proper party to the suit.

9. It