SK GULAM HUSSAIN @ MIYA NUR MIYA @ BABAN SHAH THR LRS SK GULAM RASUL SK GULAM HUSSAIN AND ORSversusBEED MUNICIPAL COUNCIL BEED THROUGH ITS CHIEF OFFICER AND ANOTHER

2026:BHC-AUG:38179
                                                                             903-WP-9510-18.odt




                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                               WRIT PETITION NO. 9510 OF 2018

          Shaikh Gulam Hussain
          @ Miya Nur Miya @ Baban Shah
          Since deceased, through L.Rs.
          Shaikh Gulam Rasul Shaikh Gulam Hussain
          and Others                                              ..PETITIONERS

                VERSUS

          Beed Municipal Council, Beed
          Through its Chief Officer and Another                   ..RESPONDENTS

                                               ....
          Mr. H.V. Tungar, Advocate for petitioners
          Ms. A.A. Qyadari, Advocate for respondent no.2
                                               ....

                                                       CORAM : ROHIT W. JOSHI, J.
                                                       DATE : 20th AUGUST, 2026

          PER COURT :


          1.         The present petitioner has filed a suit bearing R.C.C. No. 290 of

          2014 against the present Respondent No.1 / Municipal Council, Beed. The

          petitioner claims ownership over the land, bearing Municipal Council Property

          No. 3-3-2. According to the description of the suit property in the plaint, the

          western boundary of the suit property is the land bearing Municipal Council

          Property No. 3-3-1 which belongs to Dayra Kabrastan. According to the plaint

          averments, on the eastern side of the suit property, there is a land bearing no.

          3-3-3 owned by Mohd. Jafar Shaikh Lal. The prayer in the suit is for


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declaration of the ownership over the suit property and for direction to

include the name of the petitioner in the relevant records as owner of the suit

property and further a decree for perpetual injunction against the defendant

from disturbing possession of the plaintiff over the suit property. The area of

suit property, as mentioned in the plaint, is 22.86 mtr. X 22.86 mtr. i.e. total

592.20 sq.mtrs. The boundaries of the suit property, as mentioned in the suit,

are reproduced herein below :-

           iqosZl %&     egen tkQj “ks[kyky ;kaps jkgrs ?kj
           if”pesl %&    nk;jk ethn o dczzLrkuph cafnLr pkSfnokjhP;k vkrhy tkxk
           nf{k.ksl %&   ^pankek* ethn & nxkZ o dczLrkuph tkxk
           mRrjsl %&     ck;ikl jksM rs eksehuiwjk Hkkxkr tk.kkjk iwoZ if”pe jksM


2.         In this suit, Respondent No.2 – Dayra Kabrastan filed an

application under Order I Rule 10 of the Code of Civil Procedure for adding

it’s name as party defendant in the suit. It is stated in the application that the

Respondent No. 1 – Municipal Council has issued an advertisement for

allotment of the suit property on leasehold basis and that immediately after

gathering knowledge of the same, Respondent No.2 had raised an objection

stating Respondent No. 1 - Municipal Council did not have any authority to let

the suit property on lease. It is contended that the suit property is a part of

City Survey No.8338, admeasuring 4362.5 sq.mtrs. owned by Muslim

Kabrastan / Dayra Kabrastan. It is alleged that the plaintiff intends to disrupt

the suit property by obtaining the decree from the Court.                           The plaintiffs


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opposed the application by filing reply stating that the Municipal Council had

entered their names in the relevant record with respect to the suit property

disregarding right of the plaintiffs over the same, therefore, it was necessary

to file the suit. It is stated that the property of Respondent No.2 – Dayra

Masjid is on the western side of the suit property, and therefore, it is neither a

necessary nor a proper party to the suit.


3.         The learned trial Court has allowed the application for inclusion of

Respondent No.2 as defendant in the suit vide order dated 26 th June, 2018.

The learned trial Court has observed that Respondent No.2 had stated that

the suit property was actually in its occupation and used for the purpose of

Kabrastan and as such, right of Respondent No.2 was likely to be affected by

the outcome of the suit. The learned trial Court observed that the plaintiff did

not dispute existence of Waqf Kabrastan. In view of aforesaid observations,

the learned trial Court has allowed the application for inclusion of

Respondent No.2 as defendant in the suit.


4.         Perusal of the plaint indicates that the plaintiffs have not sought

any relief against Respondent No.2. The plaintiffs claim ownership over the

property bearing Municipal Council Property No. 3-3-2.         According to the

plaintiffs, the property of Respondent No.2 is bearing Municipal Council

Property No. 3-3-1. Respondent No.2 has filed reply in the present petition.

Alongwith reply a map is filed showing existence of Property bearing City


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Survey No. 8338 i.e. Municipal Council Property No. 3-3-1 marked in yellow

colour and property bearing City Survey No. Nil, Municipal Council Property

No. 3-3-2 marked in pink colour.       The map which is filed on record by

Respondent No.2 indicates that the property bearing Municipal Council

Property No. 3-3-2 is not part of City Survey No. 8338. Respondent No.2 does

not claim that the property bearing City Survey No.Nil is allotted to it.


5.         Normally, no person can be added as party to the suit against the

wish of the plaintiff. However, this rule is not absolute and is subject to

certain exceptions. When a person intends to be included in the suit against

the wish of the plaintiff, such person must establish that it is a necessary party

to the suit, meaning that the suit cannot be decided meaningfully in his

absence or that the rights of the said person are bound to be adversely

affected by the outcome of the suit. It must also be stated that even if a

person is a proper party, such person cannot be implicated as party to the suit

against the wish of the plaintiff. A person can be added as party to the suit

against the wish of the plaintiff only if it demonstrates that such person is a

necessary party.


6.         As mentioned above, the plaintiffs have claimed relief only against

Respondent No.1 – Municipal Council. The plaintiffs do not claim any relief

against Respondent No.2 – Dayra Kabrastan. According to the plaintiffs, the

property of Dayra Kabrastan is allocated at the western boundary of the suit


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property.   Although Respondent No.2 – Dayra Kabrastan claims to be in

occupation of the suit property, the plaintiffs have not claimed any relief

against it. A decree for injunction as is well settled binds only parties to the

suit. As regard the prayer for declaration for ownership, such declaration

even if granted will bind only to the parties to the suit and not third parties

who are strangers to the suit.      Such legal position is settled by Hon’ble

Supreme Court in the case of Deccan Paper Mills Co. Ltd. Vs. Regency

Mahavir Properties and Ors., (2021) 4 SCC 786. Adjudication of the suit will

not affect any right of Dayra Kabrastan, if it is not joined as party to the suit.

In that sense, right of Dayra Kabrastan will not be adversely affected by

adjudication of the suit.    The trial Court has allowed the application for

addition of party without adverting to this legal position.


7.          In the light of reasons recorded above and in view of the

considered opinion of this Court, the learned trial Court has erred in allowing

the application by including Respondent No.2 as defendant in the suit. Writ

petition is allowed. The impugned order dated 26 th June, 2018 passed by the

learned C.J.J.D., Beed in Application Exhibit 24 in R.C.S. No. 290 of 2014 is

hereby quashed and set aside and the Application Exhibit 24 is rejected.


8.          It is clarified that the decree that may be passed in favour of the

petitioners / plaintiffs in the suit will not affect any right of Respondent No.2

– Dayra Kabrastan, since it is not a party to the suit. The petitioners will not


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be entitled to take any action against Respondent No.2 – Dayra Kabrastan on

the basis of any decree that may be passed in their favour in the suit.




                                                   ( ROHIT W. JOSHI, J. )
SSD




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