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Bombay High Court · body

2014 DIGILAW 958 (BOM)

Sundarabai Govind Dhuri v. Diago Minguel Pereira

2014-04-11

U.V.BAKRE

body2014
Judgment : 1. Heard Mr. Lotlikar, learned Senior Counsel appearing on behalf of the petitioners, Mr. Dias, learned Counsel appearing on behalf of respondents no.1 to 10 and Mrs. Aras, learned Counsel appearing on behalf of respondent no.14. 2. Rule. Rule made returnable forthwith. By consent heard forthwith. 3. By this petition, the petitioners have taken exception to order dated 18/07/2013 passed by the learned Civil Judge, Senior Division, 'A' Court, Mapusa in Special Civil Suit No. 14/2008/A. 4. Respondents no.1 to 10 are the plaintiffs in the said Special Civil Suit No.14/2008/A; the petitioners are defendants no. 1 to 19; respondents no 11 to 14 are defendants no. 20 to 23; and respondents no. 15 and 16 are newly added defendants no. 24 and 25. For the sake of convenience, parties shall, hereinafter, be referred to as per their status in the said Suit. 5. The plaintiff no. 5 has filed affidavit-in-reply and has produced various documents. 6. The said Special Civil Suit No. 14/2008 has been filed for various reliefs namely: “(a) For a decree of declaration that the defendants, agents, servants and/or any other person, acting through, or on their behalf, have no right, title & interest in the 1st 'suit property'; and the suit Sale Deed, be ordered to be produced, and declared null and void; and/or not binding on the plaintiffs, to the extent of the 1st suit property'; (b) For a decree of declaration that the defendants, their predecessor-in-title, had never acquired rights, title and interest in the 2nd suit property' or any part of these, and the suit sale-deed may be ordered to be produced and declared as null and void; (c) For a decree directing or/and ordering the defendants, their servants or any person acting through or on their behalf, not to interfere in the 1st suit property' or any part thereof, and further restraining them from creating any third party rights and doing any activities of any nature and/or cutting the hill and/or trees from the said suit property. (d) For a decree directing or/and ordering the defendants, their servants, agents or any person acting through or on their behalf, not to interfere in the 2nd suit property' or any part thereof and further restraining them from creating any third party rights, and doing any activities of any nature and/or cutting the hill and/or trees from the said suit properties; (e) Upon granting prayer (a) and (c), the revenue authorities be directed to record the 1st suit property' under separate sub-division, and deleting the area of defendant no.1, to the extent of the 1st suit property', in the Occupant's column; and to record the names of the plaintiffs in the Occupant's column, to the extent of the 1st suit property'; (f) Interim reliefs, as prayed for in the interim application; and (g) Any other Order, this Court deems fit and proper.” 7. Though the plaintiffs claim that the 'first suit property' to which prayer clauses (a), (c) and (e) apply, belongs to them, however, they do not claim any right to the 'second suit property' to which prayer clauses (b) and (d) apply. But still, the plaintiffs want declaration that the said second suit property does not belong to the defendants. The defendants no. 1 to 19, who are the petitioners, had challenged the locus standi of plaintiffs to seek declaration in respect of the 'second suit property' which never belonged to them. The trial of the suit had been expedited by an order passed by this Court. It was initially directed to be disposed of within one year, but on account of the fact that the trial could not be completed within the said period, the trial Court sought extension of time to dispose of the suit. Since then, the trial Court has obtained several extensions. The evidence of plaintiffs was closed and that of the defendants no.1 to 19 was also completed and at that stage, an application dated 04/04/2013 was filed on behalf of Mr. Sylvester Filomena Columbus Rego and his wife Mrs. Norma Rego (newly added defendants no. 24 and 25) seeking intervention in the suit. 8. The intervening parties claimed that said Sylvester Rego is the son of late Julius Edward Rego and his wife late Basiliana Assuciana Querobina De Sa e Rego, originally hailing from Bastora, Bardez, Goa and now residing at Kandiwali [West], Mumbai. Norma Rego (newly added defendants no. 24 and 25) seeking intervention in the suit. 8. The intervening parties claimed that said Sylvester Rego is the son of late Julius Edward Rego and his wife late Basiliana Assuciana Querobina De Sa e Rego, originally hailing from Bastora, Bardez, Goa and now residing at Kandiwali [West], Mumbai. The mother of Shri Sylvester Rego was the daughter of late Mr. Inacio Vitorino de Sa and Mrs. Caetana Especiosa Luiza Vales de Sa. It was alleged that said Mrs. Caetana Especiosa Luiza Vales de Sa had inherited half of the properties in the Village of Nerul on the death of her parents Joao Vales and Ana Maria Viegas. It was further alleged that said Mrs. Caetana Especiosa Luiza Vales de Sa was the grandmother of the intervenor no. 1 namely Sylvester Rego. The intervenors further claimed that by Deed of Gift dated 19/7/1941, the grandmother of the intervenor no. 1 (Sylvester) gifted some properties to the mother of Sylvester Rego. The properties gifted by the grandmother were parts of larger property commonly known as 'Palmar Danadi' described under no. 3158. It was further alleged that the northern part of the said property was acquired by the ancestors of the intervenors from Pereira Garces family and the same was later on described under two different land registration numbers one portion under no. 8378 and the other portion under no. 8379. It was stated that in the year 1971, after the death of the father of the intervenor no. 1, on account of some financial difficulties, a portion of the property under no. 8379 was sold to Sertorio Antonio Remedios Pereira and the remaining portion remained as it was. The property under land registration no. 8379 is known as “Zoddy” or “Rumod Batta”. According to the intervenor no. 1, during his last visit to this property, he found that some construction had come up in one part. It was stated that insofar as the property under land registration no. 8378, is concerned, the intervenors do not have any claim but insofar as the property under land registration no. 8379 is concerned, the same belongs to the family and is not sold at any time. The intervenors claimed that they not only have interest in this property but are the absolute owners of the property on the western side of survey no. 8379 is concerned, the same belongs to the family and is not sold at any time. The intervenors claimed that they not only have interest in this property but are the absolute owners of the property on the western side of survey no. 103/1 across the drain and have interest, right and half share in the property under southern half across the drain and which properties are presently surveyed under part of survey no. 100/1 and 103/1 of village Nerul. The intervenors claimed that their claim will be restricted only to the portion of the property under land registration no. 7389 and which corresponds to the western side of survey no. 103/1 across the drain and the remaining property under land registration no. 19295, book B-51 new, folio 120 as well as the remaining part of the property under no. 3158 as per column 2nd of land registration no. 3158, B-1 (old) of copies of Ilhas/Bardez where it is confirmed in the year 1926 that the property purchased was entire or full and not half and as such being a descendent of the original purchasers, the intervenor has 50% rights, title and interest in these two properties also and which are subject matter of the suit and there was no further partition nor they were parties to the sale deed dated 26/01/1950 and 24/08/1953 claimed to have been purchased by Pandu Ladu Naik. The intervenors, therefore, being the co-owners of the properties as set out above, claimed that they are necessary and proper parties and should be joined as such. 9. The plaintiffs, by their reply dated 9/04/2013, gave no objection to the application for intervention. On the same day i.e. on 09/04/2013, the plaintiffs filed an application under Order 1 Rule 10 and Order 6 Rule 17 of C.P.C. for joining the very same intervenors as party defendants to the suit. On 16/04/2013, the parties who sought intervention, namely Sylvester Rego and Mrs. Norma Rego, applied to the Court for withdrawal of their application for intervention. The said application for withdrawal of the intervention application came to be granted and at the same time, the parties, who sought intervention, purported to file a reply to the application of the plaintiffs, thereby giving no objection to be added as parties to the suit. Norma Rego, applied to the Court for withdrawal of their application for intervention. The said application for withdrawal of the intervention application came to be granted and at the same time, the parties, who sought intervention, purported to file a reply to the application of the plaintiffs, thereby giving no objection to be added as parties to the suit. On 09/04/2013, the plaintiffs had filed an application purporting to join the said Sylvester Filomena Columbus Rego and Mrs. Norma Rego as party defendants to the suit and had also sought to add one paragraph to the original plaint by amendment to the plaint stating that it was consequential amendment. 10. The above application of the plaintiffs for addition of parties and for amendment was opposed by the defendants no. 1 to 19, by way of reply, filed by them, claiming that it was a mala fide application made with the intention of delaying final disposal of the suit. It was alleged that the persons sought to be added are neither necessary nor proper parties to the suit. The contents of the application clearly shows that there is no contest between the plaintiffs and the said two persons and on the contrary, the said application has been filed collusively. On merits, the said defendants stated that the property which their predecessor-in title purchased did not belong to any land lady staying at Bastora and the persons sought to be added have nothing to do with the said property. 11. The said application for addition of parties and amendment was also opposed by the defendants no. 20 to 23 in the suit who have purchased a part of the property belonging to the defendants no. 1 to 19. They, inter alia, alleged that the persons sought to be added are claiming to be signatories to the Deed of Sale dated 05/01/1971 which does not concern the properties which have been purchased by these defendants from the defendants no. 1 to 19 by Sale Deed dated 15/11/2007. 12. By order dated 18/07/2013, the learned trial Court granted the said application of the plaintiffs for joinder of parties under Order I, Rule 10 of C.P.C. and also the consequential amendment under Order VI, Rule 17 of C.P.C.. 1 to 19 by Sale Deed dated 15/11/2007. 12. By order dated 18/07/2013, the learned trial Court granted the said application of the plaintiffs for joinder of parties under Order I, Rule 10 of C.P.C. and also the consequential amendment under Order VI, Rule 17 of C.P.C.. The trial Court observed that according to the plaintiffs, the southern portion of the original property was never purchased by the vendors of late Pandu Ladu Naik and his vendors were the other half of the family of Vales, one half being that of Basiliana, the daughter of Caetana Vales De Sa and granddaughter of Joao Vales and Ana Maria Viegas. The trial Court found that therefore the plaintiffs have described in the plaint the northern half as the 'first suit property' which was purchased by them and the southern half as the 'second suit property' which was never purchased by Vales family. The trial Court further observed that the defendants no.1 to 19 (present petitioners), in their written statement, at paragraph 12, have raised a plea that the submissions and contentions of the plaintiffs are misconceived and are to be rejected summarily in view of the fact that the members of Vales family whose title has been challenged or put in issue, are not parties to the present suit. Trial Court further found that in paragraph 13 of the written statement, the said defendants no.1 to 19 have stated that they are claiming title by adverse possession and would become absolute owners of the said property by operation of positive prescription. The trial Court further found that the defendants no. 1 to 19 have placed reliance on document of annotations of 1926 at Exhibit 131 by virtue of which the said defendants claimed that there was a mistake in earlier registration and that the reference made therein as half of the property was not correct and the same should be full property thereby covering the northern and southern halves. The trial Court observed that insofar as the northern half is concerned, according to the plaintiffs, there were inventory proceedings of allotment made amongst the Vales family which resulted in land registration nos. 8378 and 8379, whereas insofar as the southern half is concerned, there were no inventory proceedings or partition proceedings between two half shares of Vales family based on annotations of 1926. 8378 and 8379, whereas insofar as the southern half is concerned, there were no inventory proceedings or partition proceedings between two half shares of Vales family based on annotations of 1926. The trial Court observed that the defendants no.1 to 19, through their predecessor Pandu Ladu Naik, claimed title from the first set of Vales family when the other set namely, Sylvester Rego and Mrs. Norma Rego, who also sought intervention in the present suit, were not parties to the deed of 1050 and 1953 at Exhibits 174 and 176 respectively through which the defendants no.1 to 19 are claiming the property which is to the southern half of the original property. The trial Court found that from the sale deed at Exhibit 80 dated 05/01/1971, Mr. Sylvester Rego is seen as the vendor no. 2, which establishes that he is a descendent of Vales family. In light of the stand taken by defendants no.1 to 19 at paragraph 12 of the Written Statement that Vales family has not been joined in the present suit, the trial Court held that the plaintiffs were seeking to join the said Sylvester Rego and Mrs. Norma Rego as party defendants, whom the defendants no. 1 to 19 claimed to have been left out. The trial Court held that the defendants no.1 to 19 cannot be permitted to say that Sylvester Rego and Norma Rego are not necessary parties to the present suit, having taken the stand that the suit is bad for nonjoinder of necessary parties. The trial Court held that the stand of the said defendants that the parties now sought to be added can file an independent suit, is contrary to the provisions of Order I, Rule 10 of C.P.C. which is to avoid multiplicity of proceedings. The trial Court, therefore, held that the parties sought to be added are necessary parties, considering that their legitime is yet to be decided after the annotations of 1926. Therefore, the application for joining said Sylvester Rego and Mrs. Norma Rego as defendants no. 24 and 25 and consequently, the amendment sought by the plaintiffs to plaint were allowed by the trial Court. The defendants no.1 to 19 are aggrieved by the impugned order. 13. Mr. Lotlikar, learned Senior Counsel appearing on behalf of defendants no. 1 to 19 submitted that admittedly, 'second suit property' does not belong to the plaintiffs. 24 and 25 and consequently, the amendment sought by the plaintiffs to plaint were allowed by the trial Court. The defendants no.1 to 19 are aggrieved by the impugned order. 13. Mr. Lotlikar, learned Senior Counsel appearing on behalf of defendants no. 1 to 19 submitted that admittedly, 'second suit property' does not belong to the plaintiffs. He submitted that by way of application for addition of parties, the plaintiffs wanted someone to fight with defendants no. 1 to 19 regarding the 'second suit property', due to which, said Sylvester Rego and Mrs. Norma Rego have been introduced as defendants no. 24 and 25. Learned Senior Counsel submitted that there would be absolutely no contest between the plaintiffs and the said newly added defendants no. 24 and 25 and contest would be between defendants no.1 to 19 and the said intervenors. Learned Counsel made a grievance that in the impugned order exactly, the same things and more or less in the same words, as stated in the written submissions filed by the plaintiffs, have been incorporated. He submitted that the impugned order has been passed in a most cavalier fashion by picking up same paragraphs from the written submissions filed on behalf of the plaintiffs. According to him, there is no application of mind by the trial court. He submitted that joinder of parties is possible only if persons sought to be joined are either necessary or proper parties and their presence should be necessary for adjudication of the matter in controversy between the parties. Learned Senior Counsel urged that the plaintiffs had not spelled in the application as to how the presence of the said defendants no. 24 and 25 would help the Court in deciding the controversy between the parties. According to him, the trial Court exercised the jurisdiction unreasonably and arbitrarily and also fancifully. He also submitted that insofar as the amendment to the plaint was concerned, the said amendment was the main thing and joinder of parties was contingent thereupon. He submitted that no good reason showing diligence on the part of the plaintiffs was shown for seeking the said amendment long after the trial had started and was at the fag end. He submitted that the impugned order, if allowed to stand, would cause miscarriage of justice and, therefore, intervention of this Court in the exercise of writ jurisdiction is fully warranted. He submitted that the impugned order, if allowed to stand, would cause miscarriage of justice and, therefore, intervention of this Court in the exercise of writ jurisdiction is fully warranted. He urged that the petition be allowed and the names of defendants no. 24 and 25 be expunged from the cause title of the suit. 14. Mrs. Aras, learned Counsel appearing on behalf of the defendant no. 23 adopted the submissions made by the learned Senior counsel. 15. On the other hand, Mr. Dias, learned Counsel appearing on behalf of the plaintiffs, pointed out that by sale deed dated 07/02/1874, half of the larger property known as 'Darnadi', described under the land description no. 3158, was purchased by Vales family and this half came to be separately described under land description no. 8378. According to him, this property under no. 8378 is the northern gleba of the said larger property under no. 3158 and this can be understood from the description as mentioned under no. 8378. He invited my attention to the inscription no. 2217 and submitted that in the year 1893, someone from Vales family expired and in the inventory proceedings, in 1893, there were two land registration numbers being 8378 and 8379 and the right to half on the southern side of each of the properties described under nos. 8378 and 8379 was allotted to Anna Maria Viegas, widow of Joao Vales and inscribed in her name on 14/12/1898 under no. 2217. He submitted that the land under Land registration no. 8378 is separated from the land under registration no. 8379 by a rain water drain, which is shown in the sketch. He further urged that subsequently, Smt. Caetana Luiza Especiosa Vales, widow of Inacio Vitorino de Sa inherited these properties. He invited my attention to the extract from the register of transmission under inscription no. 27.551 wherein the said two properties are found inscribed in her name. He then pointed from the extract of register of transmission that under inscription no. 27,552, the same two properties have been inscribed in the name of Mrs. Basiliana Assuciana Querobina de Sa e Rego, by virtue of Public Deed dated 19/07/1941. He submitted that the predecessor-in-title of the plaintiffs is the said Mrs. Basiliana Assuciana Querobina de Sa e Rego and that the defendants no. 24 and 25 are respectively the son and daughterin-law of said Basiliana. Basiliana Assuciana Querobina de Sa e Rego, by virtue of Public Deed dated 19/07/1941. He submitted that the predecessor-in-title of the plaintiffs is the said Mrs. Basiliana Assuciana Querobina de Sa e Rego and that the defendants no. 24 and 25 are respectively the son and daughterin-law of said Basiliana. He further submitted that said Basiliana was the daughter of late Mr. Inacio Vitorino de Sa and Mrs. Caetana Especiosa Luiza Vales de Sa. Counsel urged that the 'first suit property' was purchased by the plaintiffs by Sale Deed dated 05/01/1971 from said Basiliana and her son Sylvester. Learned Counsel further submitted that this first suit property admeasures 19,500 square meters and bears survey nos. 99/7, 100/1 and 100/0 of village Nerul. He submitted that though the plaintiffs do not have title to the 'second suit property', however, the defendants no. 1 to 19 have specifically pleaded in their written statement that the submissions and contentions of the plaintiffs are totally misconceived and are to be rejected summarily in view of the fact that the members of Vales family whose title is being challenged or put in issue, are not parties to the present suit. He further submitted that defendants no.1 to 19 in paragraph 13 claimed to be absolute owners of both the properties by operation of positive prescription. Mr. Dias, learned Counsel appearing on behalf of the plaintiffs submitted that the 'first suit property' was purchased by the plaintiffs by registered Sale Deed dated 05/01/1971 from the said Basiliana Assuciana Querobina De Sa e Rego and her son Sylvester Filomena Columbus Rego. He submitted that said Sylvester Rego is, therefore, not a stranger, but is a descendent of the original predecessor of the property since its purchase in 1874 and he along with his mother had sold part of the entire property to the plaintiffs. He further submitted that defendants no. 1 to 19 have denied the pleading of the plaintiffs made in paragraph 24 of the plaint that annotation of year 1926 and of the year 1941 do not confer any title or rights. He urged that the defendants are trying to take advantage of the fact that rain water drain is not shown in the hilly portion i.e. cadastral plan no. 477. The learned Counsel read out various paragraphs from the plaint and contents of various documents. He urged that the defendants are trying to take advantage of the fact that rain water drain is not shown in the hilly portion i.e. cadastral plan no. 477. The learned Counsel read out various paragraphs from the plaint and contents of various documents. He submitted that on account of said averments made by defendants no. 1 to 19 in their written statement, which are not correct, joining of the said members of Vales family, namely Sylvester Rego and Mrs. Norma Rego was necessary. He, therefore, submitted that the impugned order is in accordance with settled principles of law and no interference with the same is warranted. Mr. Dias, learned Counsel appearing on behalf of the plaintiffs relied upon the following judgments : (i) SavitriDevi Vs. District Judge, Gorakhpur and others, [AIR 1999 SC 1996] (ii) Bal Niketan Nursery School Vs. Kesari Prasad, [ AIR 1987 SC 1970 ] (iii) GurmaujSaran Baluja Vs. Mrs. Joyce C. Salim and others, [AIR 1990 Delhi 13.] 16. I have gone through the material on record and I have considered the submissions made by the learned Counsel for the parties as also the judgments cited by the learned Counsel for the plaintiffs. 17. In the case of “Savitri Devi” (supra), it has been held that Order I, Rule 10 of C.P.C. enables the Court to add any person as party at any stage of the proceedings, if the person, whose presence before the Court, is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. It has been held that avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 18. In the case of “Bal Niketan Nursery School” (supra), it has been held that Order I, Rule 10 has been expressly provided in Civil Procedure Code to meet with such situation so that rendering of justice is not hampered. 18. In the case of “Bal Niketan Nursery School” (supra), it has been held that Order I, Rule 10 has been expressly provided in Civil Procedure Code to meet with such situation so that rendering of justice is not hampered. The rule provides that if the suit has been instituted in the name of wrong person as plaintiff or if there is doubt as to whether the suit has been instituted in the name of right plaintiff, the Court may, at any stage of the suit, if it is satisfied that the suit has been instituted due to bona fide mistake and that it is necessary for the determination of real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. It has been held that the scope and effect of Order I, Rule 10 has been considered in numerous cases and there is plethora of decisions laying down the ratio that if the Court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of wrong person, then, the Court should set right the matters in exercise of its powers under Order I, Rule 10 and promote the cause of justice. 19. In the case of “Gurmauj Saran Baluja” (supra), the learned Division Bench of Delhi High Court has observed that where a person has a direct interest in the subject matter of the suit and decision of one of the issues involved in the suit might knock out the basis of the suit for specific performance filed by him against one of the defendants in the suit filed by the plaintiffs, the Court can direct the plaintiffs to implead him as defendant. It has been held that it is not the requirement of subrule (2) of Rule 10 of Order I of C.P.C. that a party sought to be added as defendant must be interested in whole of the subject matter of the suit i.e. in all the issues. It is held that the Court has only to see that the presence of the party sought to be added is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions in the suit. It is held that the Court has only to see that the presence of the party sought to be added is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions in the suit. It has been held that the Court can direct the plaintiffs to add the party as defendant when the addition is necessary to avoid multiplicity of the proceedings and for effectual and complete adjudication. It has been further held that addition of a party as defendant can be ordered at any stage of the proceedings. 20. There is no dispute that the plaintiffs do not claim any right, title, interest or possession in respect of the 'second suit property'. In spite of that the plaintiffs, inter alia have prayed in prayer clause (b) to declare that the defendants, their predecessors in title had never acquired rights, title and interest in the 'second suit property' or any part thereof and to declare the sale deeds of the defendants as null and void. Again the plaintiffs in prayer clause (d) have prayed for permanent injunction against the defendants in respect of the 'second suit property'. It is not understood as to how the plaintiffs, who do not claim any right or title to the second suit property, get locus standi, to seek negative declaration and injunction against the defendants in respect thereof. Merely because the plaintiffs included the 'second suit property' in the plaint, the defendants no.1 to 19 alleged in the written statement that the members of Vales family whose title is being challenged or put in issue, are not parties to the present suit. The plaintiffs claim to be owners in possession of the 'first suit property' by virtue of Sale Deed dated 05/01/1971. Since on 30/01/2008, the plaintiff no. 3 noticed that the bushes were burnt on the top of the hill partly in the 'first suit property', the plaintiffs filed the suit in respect of the 'first suit property', for declaration that the defendants have no right title or interest in the first suit property and the suit sale deed be declared as null and void to the extent of the 'first suit property'. For this prayer (a) and for the prayer (c) of permanent injunction in respect of the 'first suit property', the members of vales family or the defendants no. For this prayer (a) and for the prayer (c) of permanent injunction in respect of the 'first suit property', the members of vales family or the defendants no. 24 and 25 are not necessary or proper parties. There would be absolutely no contest between the plaintiffs and the defendants no. 24 and 25 in the present suit. The averments made in the written statement of the defendants no. 1 to 19 did not require the plaintiffs to add the said members of the Vales family as parties to the suit. 21. The said suit has been filed in February 2008. After five years, when the trial was at the fag end, i.e. after the plaintiffs as well as the defendants no. 1 to 19 have completed their evidence, the defendants no. 24 and 25 initially filed an application for intervention in the suit alleging that they have no claim to the property bearing registration no. 8378 ('first suit property') and that the property bearing registration no. 8379 belongs to their family. It was alleged by these intervenors that the intervenor no. 1 noticed some construction in that unsold portion bearing land registration no. 8379. Therefore, they sought intervention as parties in the suit. The said allegations of construction were against the defendants. Plaintiffs have nothing to do with the said unsold property claimed by the defendant no. 24 and 25 and the defendants no. 24 and 25 have nothing to do with the 'first suit property' claimed by the plaintiffs. It is pertinent to note that the plaintiffs specially filed a reply of two lines dated 09/04/2013, thereby giving no objection for addition of the said intervenors as parties to the suit. On the same day i.e. on 09/04/2013, the plaintiffs themselves filed an application for addition of the said intervenors as defendants to the suit and for consequential amendment to the plaint. The said intervenors, on 16/04/2013, filed two applications one for withdrawing their intervention application and the other for giving no objection to the application filed by plaintiffs to add them as parties. There is therefore collusion between the plaintiffs and the defendants no. 24 and 25. If the defendants no. The said intervenors, on 16/04/2013, filed two applications one for withdrawing their intervention application and the other for giving no objection to the application filed by plaintiffs to add them as parties. There is therefore collusion between the plaintiffs and the defendants no. 24 and 25. If the defendants no. 24 and 25 choose to file a separate suit in respect of their property in which some encroachment has been allegedly made, then certainly they need not make the plaintiffs as defendants to that suit and the defendants would be the said encroachers. 22. The presence of the defendants no. 24 and 25 is not necessary or desirable for adjudication of the matter in controversy between the plaintiffs and the defendants no. 1 to 23. No relief of whatsoever nature has been sought by the plaintiffs against the defendants no. 24 and 25. On the contrary, it seems that the defendants no. 24 and 25 have filed a counter claim in that suit which is pending consideration. Addition of the defendants no. 24 and 25 to the suit would only increase the scope of the suit, since there would be an independent contest between the defendants no. 1 to 19 and the said defendants no. 24 and 25, though there would be no contest between the plaintiffs and the said defendants no. 24 and 25. In no way, can it be said that the said defendants no. 24 and 25 are either necessary parties or proper parties to the suit filed by the plaintiffs. The right remedy for the defendants no. 24 and 25, if any, is to file separate suit in respect of their claim and grievance. The amendment to the plaint was the main thing and addition of defendants no. 24 and 25 was contingent thereupon. The trial Court has committed a gross error in allowing the amendment and addition of defendants no. 24 and 25 to the suit. That has caused miscarriage of justice. The impugned order is bound to be quashed and set aside. 23. Hence the petition is allowed. Impugned order dated 18/07/2013, passed in the Special Civil Suit No. 14/2008/A is quashed and set aside. The names of defendants no. 24 and 25 shall be expunged from the cause title of the said suit. Rule is made absolute in the aforesaid terms. Petition stands disposed of accordingly, with no order as to costs.