Dismissed¶31

Shankar S/O Sheshrao Kavhar v. Bhagwat Haribhau Ghayal and Another

Bombay HC6 Nov 2025WP/5870/2023

Case brief

AI extract

What is this about?

Impleadment in counterclaim; Order 1 Rule 10 CPC; necessary party versus proper witness; 'defendant is master of the counterclaim' contention; perpetual injunction founded on ownership; confusion between Gat No.252 (sale deed dated 19.04.2002) and Gat No.311; legal heir of vendor; 1.19 H.R. out of Gat No.311, Borala Jahagir, Malegaon, Washim; Regular Civil Suit No.55 of 2021; Trial Court order 07.08.2023 at Exh.30; writ petition dismissed, rule discharged, no costs; decided 06.11.2025.

What did the court decide?

No relief granted to the petitioner; writ petition dismissed, Rule discharged, with no order as to costs. ¶31

Shankar S/O Sheshrao Kavhar Vs Bhagwat Haribhau Ghayal and Another — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

No relief granted to the petitioner; writ petition dismissed, Rule discharged, with no order as to costs.

¶31

Issue for consideration

Whether respondent No.2 (proposed defendant), son of the petitioner/counterclaimant's vendor, was a necessary party to the counterclaim and could rightly be impleaded as a defendant under Order 1, Rule 10 CPC, given that the perpetual injunction relief in the counterclaim rests on ownership and there is confusion whether the counterclaim property is Gat No.252 (per the sale deed) or Gat No.311 (as claimed in the counterclaim). +1 more

¶27

Court's answer

Since the relief of perpetual injunction in the counterclaim, though claimed only against respondent No.1 (the original plaintiff), is based on ownership, and there is undisputed confusion between Gat No.252 (mentioned in the sale deed) and Gat No.311 (claimed in the counterclaim), the issue of ownership should be decided in the presence of the legal heir of the vendor of the counterclaimant; accordingly, respondent No.2 is to be arrayed as a defendant in the counterclaim.

¶30

Ratio / Principle

It is not in dispute that the relief of perpetual injunction in the counterclaim is based on ownership, and that the father of the proposed defendant (respondent No.2) is the vendor of the petitioner/counterclaimant; these facts ground the court's conclusion that the proposed defendant's presence is appropriate for adjudication of the ownership issue.

¶28

Detailed headnote1 paragraphs

Bombay High Court (Nagpur Bench), Rohit W. Joshi, J. (06.11.2025), dismisses Writ Petition No.5870 of 2023 filed by the original defendant in Regular Civil Suit No.55 of 2021 challenging the Trial Court's order dated 07.08.2023 (Exh.30) allowing impleadment of respondent No.2 as a defendant in the defendant's counterclaim under Order 1, Rule 10 of the Code of Civil Procedure. The counterclaim sought perpetual injunction against the plaintiff based on ownership; the defendant claimed 1.19 H.R. out of Gat No.311, Village Borala Jahgir, Tahsil Malegaon, Dist. Washim, while the sale deed dated 19.04.2002 recorded Gat No.252, and the vendor of the defendant is the father of respondent No.2. Held: as the injunction relief rests on ownership and the correct Gat number is confused, the ownership issue ought to be decided in the presence of the legal heir of the vendor; respondent No.2 is therefore appropriately arrayed as a defendant in the counterclaim. Rule discharged; no order as to costs.

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2025:BHC-NAG:11622

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WP 5870.23.odt

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¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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WRIT PETITION NO.5870 OF 2023

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PETITIONER :- Shankar S/o Sheshrao Kavhar Aged about 32 years, Occ. Agriculturist, R/o. Waghi Bk. Tq. Malegaon, District Washim.

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.. VERSUS ..

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RESPONDENTS :- 1) Bhagwat Haribhau Ghayal, Aged about 66 years, Occ. Agriculturist, R/o. Borala Jahagir, Tah. Malegaon, Distt. Washim

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Rameshwar Narayan Jatale, aged about 53 years, Occ. Agriculturist, R/o. Borala Jahagir, Tah. Malegaon Distt. Washim.

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-----------------------------------------------------------------------------------------------------------------------------------Mr.Rahul Ghuge, Advocate for Petitioner. Mr Abhijeet P. Deshmukh, Advocate for the Respondents.

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CORAM : ROHIT W. JOSHI, J. DATE : 06.11.2025

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ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. Heard finally

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with the consent of the learned counsel for the respective parties.

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¶16

WP 5870.23.odt

¶17

The present petition is filed by the original defendant in Regular Civil Suit No.55 of 2021, being aggrieved by the order dated 07.08.2023 passed by the learned Trial Court on the application at Exh.30 in the said suit. The present petitioner, who is the original defendant, has filed a counterclaim in the said suit. The relief claimed in the counterclaim is of perpetual injunction against the plaintiff, restraining him from disturbing the possession of the defendant over the suit property. Defendant No.1 claims to have purchased portion admeasuring 1.19 H.R., from and out of land bearing Gat No.311, situated at Village Borala Jahgir, Tahsil Malegaon, Dist. Washim. This Gat No.311 is a vast tract of land admeasuring around 8.75 H.R.

¶18

It is the contention of the defendant that although the sale deed dated 19.04.2002 the Gat number of the property is mentioned as 252, the boundaries of the property mentioned in the sale deed clearly indicate that the sale deed pertains to a portion of land admeasuring 1.19 H.R., in Gat No.311 and not Gat No.252. It will also be pertinent to mention that the vendor of the defendant/petitioner is the father of the present respondent No.2.

¶19

Respondent No.2 filed application under Order 1, Rule

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10 of the Code of Civil Procedure, seeking impleadment in the

¶21

WP 5870.23.odt

¶22

¶23

counterclaim as a defendant, on the ground that in the event, the counterclaim filed by the defendant is decreed, there is a likelihood of the defendant disturbing possession of respondent No.2 over the land bearing Gat No.311, owned by him. The learned Trial Court has allowed the said application vide impugned order dated 07.08.2023. The learned Trial Court has categorically held that the petitioner was not claiming any relief against the proposed defendant i.e. present respondent No.2. It is, however, held that there is some confusion with respect to the correct Gat number of the suit property, forming the subject matter of the counterclaim and, therefore, interest of the proposed defendant (respondent No.2) was involved. In view of the above, the learned Trial Court has found that the proposed defendant (respondent No.2) was a necessary party.

¶24

Mr. Ghuge, learned Advocate for the petitioner/defendant, contends that the observations made by the learned Trial Court will, at best, imply that the proposed defendant (respondent no.2) would be a proper witness, but not a defendant to the suit. He contends that since the defendant is the master of the counterclaim, the application for impleadment of a third person as a defendant in the counterclaim should not have been allowed against the will of the defendant/counterclaimant.

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WP 5870.23.odt

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¶27

Per contra, the learned Advocate for contesting respondent No.2, who is the proposed defendant argues that since the foundation of the counterclaim is based on ownership and there is genuine confusion with respect to ownership of the defendant over land bearing Gat No.311, it will be appropriate that respondent No.2 is arrayed as a party in the counterclaim. He contends that the rights of respondent No.2 will clearly be affected by virtue of the adjudication of the counterclaim since the injunction in counter claim is claimed on the basis of ownership. The learned Advocate further contends that the issue as to whether the defendant/counter-claimant is the owner of Gat No.252 (as mentioned in the sale deed) or Gat No.311 (as claimed in the counter claim) cannot be decided in the absence of respondent No.2 (proposed defendant).

¶28

It is not in dispute that although the petitioner/counterclaimant claims ownership over a portion of land bearing Gat No.311, the Gat number mentioned in the sale deed is Gat No.252. It is also obvious that the relief of perpetual injunction, although it is claimed only against respondent No.1 (the original plaintiff), is based on ownership. It is not in dispute that father of the proposed defendant(respondent No.2) is vendor of petitioner/ counter-claimant. In the considered opinion of this Court, it will

¶29

WP 5870.23.odt 5

¶30

be appropriate that the issue of ownership is decided in the presence of the legal heir of the vendor of the counter-claimant/petitioner. Since the issue of ownership is involved in the counterclaim, it will be appropriate that respondent No.2 in the present petition is arrayed as a defendant in the counterclaim.

¶31

In view of the aforesaid, writ petition stands dismissed. Rule is discharged, with no order as to costs.

¶32

(ROHIT W. JOSHI, J.)

¶33

Tanmay...

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 07.08.2023 passed by the learned Trial Court on application at Exh.30 in Regular Civil Suit No.55 of 2021, allowing impleadment of respondent No.2 (proposed defendant) as a defendant in the petitioner's counterclaim, having found him a necessary party.¶17
Learned Trial Court · 07.08.2023
Prior proceeding
In Regular Civil Suit No.55 of 2021 the petitioner, as original defendant, filed a counterclaim against the plaintiff (respondent No.1) seeking perpetual injunction restraining disturbance of his possession over the suit property.¶17
Prior proceeding
The defendant claims to have purchased 1.19 H.R. out of land bearing Gat No.311, Village Borala Jahgir, Tahsil Malegaon, Dist. Washim.¶17
Prior proceeding
Although the sale deed dated 19.04.2002 records Gat No.252, its boundaries indicate the sale deed pertains to a portion of 1.19 H.R. in Gat No.311 and not Gat No.252.¶18
Prior proceeding
The vendor of the defendant/petitioner is the father of respondent No.2 (the proposed defendant).¶18
Prior proceeding
Respondent No.2 filed an application under Order 1, Rule 10 of the Code of Civil Procedure seeking impleadment in the counterclaim as a defendant (reference continues across the page break into the next paragraph).¶19
Prior proceeding
Ground of the impleadment application: if the counterclaim filed by the defendant is decreed, there is a likelihood of the defendant disturbing possession of respondent No.2 over the land bearing Gat No.311, owned by him.¶23
Prior proceeding
The learned Trial Court categorically held that the petitioner was not claiming any relief against the proposed defendant (present respondent No.2), but that confusion over the correct Gat number of the counterclaim property involved the proposed defendant's interest.¶23
Prior proceeding
The learned Trial Court found the proposed defendant (respondent No.2) to be a necessary party and allowed the impleadment application vide the impugned order dated 07.08.2023.¶23

Shankar S/O Sheshrao Kavhar v. Bhagwat Haribhau Ghayal and Another

Case brief

What is this about?

What did the court decide?

Shankar S/O Sheshrao Kavhar v. Bhagwat Haribhau Ghayal and Another

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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