IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE MISCLLENEOUS PETITION No. 4742 of 2018 th ON THE 8 OF NOVEMBER, 2024 SHAILENDRA YADAV Versus OM PRAKASH SHIVHARE AND OTHERS ------------------------------------------------------------------------------------------

Appearance:

Shri Gaurav Mishra - Advocate for the petitioner.

Shri Pawan Vijayvargiya – Advocate for the respondent No.3.

Shri M.S. Jadon – Govt. Advocate for the State.

---------------------------------------------------------------------------------------------------------

ORDER

The instant petition under Article 227 of the Constitution of India is preferred against the order dated 17.09.2018 passed by 4^th Civil Judge Class-II, Datia in Civil Suit No.8A/16, whereby the learned trial Court had allowed the application under Order 1 Rule 10 CPC preferred by present respondent No.3/applicant seeking impleadment as defendant in the suit preferred by the petitioner/plaintiff.

2. The aforesaid order has been assailed by the petitioner/plaintiff on the ground that the impugned order has been passed without considering the provisions of the Civil Procedure Code and ignoring the fact that respondent No.3/applicant had no locus in the lis involved in the plaint, as the petitioner on the basis of boundaries mentioned in the sale deed was claiming declaration of his title as well as was seeking declaration of a notice issued under Section 248 of MPLRC against him by the State to be null and void.

3. The case of the petitioner/plaintiff is that he is an owner of a plot admeasuring area 780 sq. ft. situated at Nazul Sheet No. 34-C, plot No.172, having boundaries on east: Public road joining Rajgarh fatak bhairon mandir to telephone exchange Rajgarh, on west: Old sales tax office, on north: house of Prem Pateriya and on south: house of Nira Nirmal Shindi, which is situated in ward No.26, house No.267, near Rajgarh fatak road, Bhairon Mandir. The land over which the suit house is situated was purchased by him from defendant No.1, Om Prakash Shivhare vide registered sale deed dated 27.06.2015 and thereafter with due permission he had constructed a house.

4. Though the suit land was not a government land and the earlier owners of the suit land were still in possession of the said land since

1948, but the defendant No.2 alleging it to be a government land, started interfering in the possession of the petitioner and ultimately proceedings under Section 248 of MPLRC were initiated and on 29.12.2015 an order was passed directing the petitioner to remove the construction over the suit land, which had led to the filing of the present suit.

5. During pendency of the suit respondent No.3/applicant preferred an application under Order 1 Rule 10 CPC seeking his impleadment as defendant, alleging that the plaintiff in collusion with defendant No.1 is trying to usurp the land of the ownership of the respondent No.3/applicant, which is registered in the revenue records at serial No.34-C as plot No.172 in the Nazul Sheet.

6. In the application, it was further averred that the defendant No.1 though has raised the construction over the government land, which is registered in Nazul Sheet No.34-C as plot No.171, but in collusion of the Nazul authorities have obtained the NOC of the disputed land as plot No.172, which is affecting the interest and rights of the applicant, therefore, he is a necessary/proper party to the suit and he be impleaded as a party defendant. The said application was opposed by the petitioner/plaintiff by filing detailed objections and para wise reply. In the reply it was contended that the applicant had no locus in the instant suit, as the lis is between the plaintiff and government, wherein the government is treating the suit land as government land and the present respondent No.3/applicant himself had admitted the fact that construction of the plaintiff is not over the land of the defendant No.2, thus, accordingly the application was sought