Prakash Tatia, J. - (1.) HEARD learned Counsel for the petitioner.
(2.) THE petitioner is aggrieved against the order of the trial Court dt. 05.09.2007 by which the trial Court decided the issue No. 1 against the plaintiff petitioner and held that the suit of the plaintiff against the Sarpanch of the Gram Panchayat is liable to be rejected for want of notice and because of there as on of not impleading the Gram Panchayat as party. Learned Counsel for the petitioner submits that plaintiff filed the suit for injunction against six defendants under assumption that six defendants are only persons responsible for illegal act and when the plaintiff came to know about the conduct of the Sarpanch of Gram Panchayat concerned, then he immediately moved an application for impleading Sarpanch of the Gram Panchayat as party under Order 1R.10 CPC. The Sarpanch of the Gram Panchayat was impleaded as party in the suit as defendant No. 7. The defendant No. 7 newly added party the Sarpanch of the Gram Panchayat submitted an application under Order 7R.11 CPC for dismissal of the suit on the ground that no notice under Section 109 of the Panchayat Act has been served by the plaintiff upon the newly added defendant -Sarpanch of the Gram Panchayat. That application was dismissed by the trial Court vide order dt. 17.09.1998, against which, a revision petition being SB Civil Revision Petition No. 1148/1998 was preferred, which was decided by this Court on 02.01.2006. This Court observed that it will be appropriate that a proper issue be framed and that issue be decided as preliminary issue.
(3.) ACCORDING to learned Counsel for the petitioner, according to plaintiff the act of the respondent No. 7 - Sarpanch of the Gram Panchayat was absolutely illegal and he illegally issued Pattas and he had no right to enter into the property of the plaintiff and had no right to obstruct the way of the plaintiff. Therefore, the plaintiff sought relief against the Sarpanch of the Gram Panchayat. In all the facts and circumstances, there was no need of giving notice under Section 109 of the Panchayat Act to the Sarpanch of the Gram Panchayat because his act was illegal and the act was in his personal capacity. Learned Counsel for the petitioner also submitted that the order of the trial Court deserves to be set aside because of the reason that by impleading the respondent No. 7 as party in the suit, no prejudice can because ed to anybody.;