VIJAY NARAYANDAS RIZWANIversusBHASKARRAO BAPURAO PATIL KHATGAONKAR AND OTHERS

2026:BHC-AUG:40005



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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                     911 WRIT PETITION NO. 3122 OF 2024
                   Vijay Narayandas Rizwani
                   Age: 57 years, Occu:Business,
                   R/o: 37, Bhagyanagar, Nanded                                         ….Petitioner
                                                                                       (Original Plaintiff)

                   VERSUS

           1.      Bhaskarrao Bapurao Patil (Khatgaonkar)
                   Age: 77 years, Occu: Agriculture,
                   R/o: Khatgaon, Taluka Biloli, District Nanded
                   At present R/o: Rajendra Nagar, Near Shyamnagar, Nanded

           2.      Sardar Sardulsingh Hirasing Fouji
                   Age: 67 years, Occu: Business,
                   R/o: Badpura, Gurudwara Area, Nanded

           3.      Harbhajankaur Sardulsingh Fouji
                   Age: 63 years, Occu: Household,
                   R/o: Badpura, Gurudwara Area, Nanded

           4.      Sardar Vijaysingh Sardulsingh Fouji
                   Age: 40 years, Occu: Nil,
                   R/o: Badpura, Gurudwara Area, Nanded                                ….Respondents
                                                                                       (Original Defendants
                                                                                       No.1 and 2 as well as
                                                                                       third party, now
                                                                                       added as defendant
                                                                                       No.3 and 4)

           -----------------------------------------------------------------------------------------------------------
           Mr. S. S. Bora, Advocate for the Petitioner
           Mr. S. B. Bhapkar, Advocate for Respondent No.1
           Mr. R. B. Narwade, Advocate for Respondent No.2
           Mr. P. V. Ambade, Advocate for Respondent Nos.3 and 4
           -----------------------------------------------------------------------------------------------------------
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                                  CORAM        : AJIT B. KADETHANKAR, J.
                                  DATE         : 01.09.2026

ORAL JUDGMENT :-

.        Rule. Rule made returnable forthwith. By consent of the parties, the

matter is taken up for final disposal.

2.       Subject-matter :

         Feeling aggrieved by the order dated 01.08.2022 passed by the learned

Joint Civil Judge Junior Division, Nanded in Regular Civil Suit No.212 of

2021, the Petitioner has filed the writ petition. An application under Order I

Rule 10 of the Code of Civil Procedure for impleading Respondent Nos.3 and 4

as defendants in the suit came to be allowed. Feeling aggrieved thereby, the

Petitioner has preferred the present petition. There is a chequered history of

civil litigation amongst the parties to the present petition. Few facts are not

disputed by any of the parties.

         Thus core issues is that ‘whether the Respondent Nos.3 and 4 are

necessary and proper parties to the suit filed by the Petitioner against the

Respondent Nos.1 and 2, and whether they are competent to participate the

suit’.
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3.    Facts in brief :

a.    The subject matter suit property is an agricultural land admeasuring 40

R situated at Gat No.50 of village Kautha, District Nanded. Vide a registered

sale deed dated 05.12.1981 bearing Serial No.5325 of 1981, the Petitioner

purchased the suit property from its erstwhile owner i.e. Respondent No.2

namely Sardar Sardulsingh Fouji. Suffice to note, a Mutation Entry No.199

also came to be recorded pursuant to the said sale deed.

b.    The Petitioner was constrained to file the present suit for simpliciter

injunction on account of obstruction caused to his peaceful possession over the

suit property at the behest of Respondent Nos.1 and 2. It is pleaded in the

plaint that, Respondent No.1 is not concerned with the suit property.

c.    During the pendency of the suit, Respondent Nos.3 and 4 who happen

to be the wife and son of Respondent No.2 respectively, filed an application

below Exhibit-54 under Order I Rule 10 of the Code of Civil Procedure with a

prayer to implead themselves as party defendants. The said application was

opposed by the Petitioner.

d.    Observing that no prejudice would cause to any party if the application

was allowed; and that for adjudicating the merits of the suit the presence of

Respondent Nos.3 and 4 would be necessary, the Trial Court allowed the
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application vide the impugned order dated 01.08.2022. It is against this order

that the Petitioner is before this Court.

4.    Petitioner’s submissions:

a.    Mr. Satyajeet Bora, learned Advocate for the Petitioner would submit

that Petitioner’s suit is for simpliciter injunction against Respondent Nos.1 and

2. Respondent Nos.3 and 4 claim their alleged rights through Respondent

No.2. In such even otherwise the Respondent nos. 3 and 4 has no role to

agitate.

b.    He would submit that previously, Respondent Nos.3 and 4 had instituted

Regular Civil Suit No.331 of 2007 against the Petitioner, his brother and

Respondent No.2 for simpliciter injunction in respect of two properties,

including the present suit property admeasuring 40 R.

c.    Pertinently, the Respondent Nos.3 and 4 relied upon the decree passed

by Civil Court in Regular Civil Suit No.106 of 1985. The suit was sought to be

succeeded in the light of the decree passed in the Regular Civil Suit No.106 of

1985. That, after hearing all the parties, the learned 4 th Civil Judge Junior

Division, Nanded by a reasoned judgment and order dated 29.04.2017,

dismissed the suit with costs.
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d.    The said judgment and decree were taken in challenge before all the

appellate forums, and lastly before the Hon’ble Supreme Court. At all levels

all the challenges came to be negated. As such, the judgment and decree dated

29.04.2017 passed in Regular Civil Suit No.331 of 2007 is intact.

e.    Mr. Bora further submits that irrespective of the reference to other civil

proceedings, the findings recorded by the learned 4 th Civil Judge Junior

Division, Nanded in Regular Civil Suit No.331 of 2007 are binding on

Respondent Nos.3 and 4 as also in the present suit also.

f.    It is lastly submitted that once having been defeated at every stage to

establish their civil rights on any count, now Respondent Nos.3 and 4 cannot

contend that they are necessary and proper parties to the present civil suit

within the meaning of Order I Rule 10 of the Code of Civil Procedure. On

these submissions Mr. Bora, learned Advocate for the Petitioner prays to allow

the writ petition.

5.    Submissions on behalf of Respondent Nos.3 and 4

a.    Mr. P. V. Ambade, learned Advocate for Respondent Nos.3 and 4 would

vehemently oppose the petition. He would rely upon the settlement arrived at

between Respondent No.3 and Respondent No.2 in Regular Civil Suit No.106

of 1985.
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b.    He would point out the final order passed pursuant to the compromise

between the parties to the said suit namely the present Respondent

Nos.2 and 3. The final order reads thus :

      “Read W.S. Ex.8. It is consent W.S. of defendant. In view of Ex.
      8 this suit of the plaintiff is hereby decreed against the
      defendant. The defendant is perpetually restrained from
      causing obstruction and alienating suit land S. No. 12/2B of
      Kautha to the extent of 8 acres 30 gunthas land. Parties to bear
      their own costs. Decree be drawn accordingly.”


c.    It is further submitted that since Respondent No.2 has unequivocally

undertaken not to part with any portion of the land situated at Survey No.12,

Batta No.2B of village Kautha, Respondent Nos.3 and 4 are absolutely justified

in claiming themselves to be necessary and proper parties to the present suit.

d.    He would further rely upon a judgment and order passed by this Court

in the case of Ashok S/o Babarao Patil vs. The State of Maharashtra and

Others in Writ Petition No.10493 of 2022 on 11.10.2022. With these

submissions, he concludes his arguments.

e.    It is further submitted that, the subject-matter property was given to the

Respondent No.3 as a maintenance, and hence the Respondent No.3 must

have a voice in the suit filed by the Petitioner. With this, learned Advocate for

the Respondent Nos. 3 and 4 advocate the impugned order.
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f.     Mr. Narwade, learned Advocate representing Respondent No.2 as also

Mr. Bhapkar, learned Advocate representing Respondent No.1 would echo the

arguments advanced by the learned Advocate for Respondent Nos.3 and 4.

6.    Consideration:

a.    I have heard all the learned Advocates for the respective parties

extensively. As recorded in the opening part of the judgment, the issues is

about necessity and propriety of locus of the Respondent nos. 3 and 4 in

Petitioner’s suit as party defendants.

b.    The title of the Petitioner flows from a registered sale deed which is

executed in the year 1981. Vide the said sale deed, the Petitioner acquired title

as well as possession over the suit property. On the basis thereof, the present

suit has been filed for simpliciter injunction against Respondent Nos.1 and 2.

c.    As mentioned supra, the cause of action pleaded in the suit is the

disturbance allegedly caused by Respondent Nos.1 and 2 to the peaceful

possession of the Petitioner over the suit property. Respondent Nos.3 and 4

now seek to introduce themselves in the suit obviously on the basis of the

compromise decree passed in Regular Civil Suit No.106 of 1985.

d.    It is not in dispute that Regular Civil Suit No.331 of 2007 was instituted

by Respondent Nos.3 and 4 against the Petitioner as also Respondent No.2
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from whom Respondent Nos.3 and 4 claim their alleged interest in the suit

property. It is pertinent to note, the said suit was for a simpliciter injunction

suit.

e.      Although the said suit was only for injunction and no declaratory relief

was sought therein, the Plaintiff therein had made reference to the decree

passed in Regular Civil Suit No.106 of 1985. In as much, the Respondent

Nos. 3 and 4 disputed title of the Petitioner, the competency of the Respondent

No.2 to execute sale deed in favor of the Petitioner, and also sought to contend

the title over the suit property under the garb of the compromise decree in the

Regular Civil Suit No.106 of 1985. However in the suit of 2007, no declaratory

relief was claimed for which the said suit itself was defective.

f.      It is pertinent to note that the Petitioner has derived title to the suit

property under a sale deed executed on 05.12.1981. As such, Respondent

No.2 had already parted with the ownership and possession of the suit

property in favour of the Petitioner in the year 1981 itself.

g.      However, in the settlement occurred in Regular Civil Suit No.106 of

1985, Respondent No.2 had undertaken not to create third-party interest in

the suit property, which Respondent Nos.3 and 4 contend to be a part of the

present suit property. Since the Petitioner is holding title to the suit property

since the year 1981, the subsequent compromise decree between Respondent
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Nos.2 and 3 is therefore obviously not binding on the present Petitioner.

h.    The Trial Court while deciding Regular Civil Suit No.331 of 2007 has

rendered its finding at paragraph No.11 which reads thus :

      “11 Another interesting fact is that the suit land is given to
      plaintiff no.1 in lieu of maintenance by defendant no.03. The
      paragraph no.09 of the plaint manifest that the plaintiffs' have
      no source of income except the suit land. If that is so, the suit
      land should have been either used for agricultural purpose or
      else it should have been let for collection of rent. However,
      none is the actual position hence it has become difficult to
      understand how the plaintiffs' are maintaining themselves. Be
      that as it may, but this evidence is against the plaintiffs' and it
      itself falsifies their contention. It is further argued that no one
      can act against the spirit of the decree in RCS no. 106/85.
      However, plaintiff no. 01 had instituted that suit only against
      defendant no. 03 and it was merely a simpliciter suit for
      injunction. That decree can not be branded as the decree in
      rem and it is a decree in personam only. It is not the case of
      plaintiffs' that the defendants' no.1 & 2 are claiming through
      defendant no.03. Even otherwise, the plaintiffs' have not
      proved it so. Thus, I am of the opinion that decree in RCS No.
      106/85 is not binding up on the non parties to that suit.”


i.    Apparently, the settlement decree in the suit of 1985 is to defeat the

right of the Petitioner which is already lawfully created in the year 1981. So it

is abundantly clear that such collusive decree, no right is created in favour of

Respondent No.3 or Respondent No.4 in respect of the suit property which is

already transferred by the Respondent No.2 in favor of the Petitioner.
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j.    At no point of time, even though Respondent Nos.3 and 4 had an

opportunity to dispute the title of the Petitioner and seek appropriate

declaratory relief, including cancellation of the sale deed executed by

Respondent No.2 in favour of the Petitioner, no such relief was ever sought.

k.    Obviously, considering the pleadings raised by Respondent Nos.3 and 4

in Regular Civil Suit No.331 of 2007, as also the application seeking their

impleadment in the present suit, their claim stands frustrated on account of

their failure in Regular Civil Suit No.331 of 2007. Even the Respondent

Nos.3 and 4 have now lost the remedy to challenge Petitioner’s sale deed and

seek declaration as to the title.

l.    In my opinion, allowing the Respondent Nos. 3 and 4 to participate the

present suit would amount to abuse of process. No purpose would be served

by impleading Respondent Nos.3 and 4 in the present suit as independent

parties. Once the civil rights claimed by Respondent Nos.3 and 4 have already

been adjudicated and attained finality, the Trial Court erred in venturing to

consider the said application and rendering a finding that they are necessary

and proper parties to the suit.

m.    So far as the reliance placed by the learned Advocate for Respondent

Nos.3 and 4 on the case of Ashok Patil (supra) is concerned, I find the same is

misplaced. With due respect I record that the facts in both cases are
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substantially different. At the cost of repetition, it is recorded that Respondent

Nos.3 and 4 have already lost their claim in respect of the suit property by

virtue of the judgment and decree passed in Regular Civil Suit No.331 of

2007.

n.      Apparently, the application below Exhibit-54 is a collusive and nothing

but an abuse of the process.

o.      I am constrained to observe that the findings rendered by the Trial

Court while allowing the application are not at all justifiable nor they are

reasoned enough to allow the application. It appears that the Trial Court has

not at all paid any consideration to the aspect of the matters as recorded

above. Prejudice to the other party due to impleadment of another can not be

a parameter to decide necessity and propriety of addition of a party. Besides

testing such application on the touchstone of necessity and propriety, the Trial

Court was bound to consider the application in the light of the result in the

suit of 2007.

p.      In view of the above, I find that the Petitioner has succeeded in making

out a case for interference by this Court in exercise of its jurisdiction under

Article 227 of the Constitution of India. The petition must succeed.
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7.    Hence I pass the following order :

                                  ORDER

      I.     The Writ Petition stands allowed.

      II.    The impugned order dated 01.08.2022 passed by the
      learned Joint Civil Judge Junior Division, Nanded below
      Exhibit-54 in Regular Civil Suit No.212 of 2022 is quashed and
      set aside.

      IV.    Consequently, the application below Exhibit-54 stands
      rejected.

      III.   Rule made absolute in above terms.




                                                  [AJIT B. KADETHANKAR, J.]
PRW