Judgment:
1. The petitioner has challenged the order dated 21.01.2008 allowing the application I. A. No. 8 directing to implead the petitioner as the 10th defendant in the suit bearing O.S. No.129/2001.
2. The facts reveal that respondents 1 and 2 instituted O.S. No.129/2001 against the other respondents claiming the relief of declaration that they are the owners of the property bearing Sy. No.89/1 with the boundaries mentioned in the plaint schedule and for mandatory injunction directing defendants 1 to 8 to conduct a survey and fix boundary to the schedule property and also injunction and possession of the encroached portion.
During the pendency of the suit, the plaintiff filed an application I.A. No.8 under the provisions of Order 1 Rule 10 CPC, requesting to impaled the petitioner as 10th defendant. The application was opposed by the petitioner. The trial Court heard the learned counsel for the parties end allowed the said application Aggrieved by the said Order, the present petition has been filed.
3. I have hoard the learned counsel for the petitioner, respondents 1 and 2 and also the learned Addl. Government Advocate.
4. As could be seen from the affidavit filed by the 1st plaintiff in support of the application it reveals that the petitioner is the owner of portion of Sy. No.89/2 and that this property has fallen to the chare of one V.pi Nanda Kumar and under a Partition Deed, he sold this property measuring 9.25 cents to the petitioner herein under a registered Sale Deed dated 29.01.1998. Since from the said date, the petitioner is in possession of the said property. It is also averred in the affidavit that the petitioner has made necessary application to TMC and got the Jamabandi extract transferred to his name vide M.C. No. 191/98-99 and he has bean in lawful possession and enjoyment of the paid property and that he has erected a structure for constructing a dwelling home in the suit schedule property.
5. As could be seen from para 3 of the plaint it is averred that the neighboring land bearing Sy. Nos. 88 and 89 belongs to the children of Purushothama Naidu and they have sold part of the lands to some people. Such claim being inter se among them, they have no interest or claim over those properties. Defendants 4 to 9 are the children of late V.A. Purushothama Naidu, are nothing to do with it. So, it is the property which was purchased by the petitioner from the children of Purushothama Naidu and that has been numbered as Sy. No.89/2. Except a stray statement in the affidavit that the proposed applicant is erecting a structure for constructing a dwelling house in the suit property. There is no material placed on record to show that there is any such encroachment. More so, it is stated in the affidavit itself that the applicant is in lawful possession and enjoyment of the said property purchased by him. Even in tke objection statement, the petitioner has denied the encroachment and he has stated that the construction over his property i.e., Sy. No.S9/2 is at the fag end.
6. To say that there is some sncroachment over the property by the proposed applicant, there must be some material on record other than a stray statement of the plaintiffs in the affidavit. If in future, the plaintiffs apply for survey and if any encroachment is found by the petitioner in the property of the plaintiffs, they are at liberty to file an application for impleading him as 10th defendant. In the absence of any such material, it is impleading to drag the petitioner to the Court of law. In the circumstances, the Order passed by the Court below is erroneous and illegal and hence the petition is allowed. The Order on I.A. NO. 8 dated 21.02.2008 at Annexure-MD" is quashed and the application filed by the plaintiffs is rejected with liberty to the plaintiffs to submit an application for impleading in case if any material is placed on record regarding encroachment of the property of the plaintiff after the survey by the officials concerned.