Delhi High Court
Amar Nath Sharma (Deceased) Thr ... vs Bankey Bihari Ji Maharaj (Thakur ... on 25 April, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25.4.2014
+ CM(M) 386/2014 & CM Nos.7099-7100/2014
AMAR NATH SHARMA (DECEASED) THR LRS
..... Petitioner
Through: Sh. Sukumar Pattjoshi, Sr. Advocate
with Mr.Daram Dev, Advocate
versus
BANKEY BIHARI JI MAHARAJ (THAKUR JI)
..... Respondent
Through: Mr.Ramesh Kumar and Mr.Jos
Chiramel, Advs.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI (Open Court)
1. The petitioner has challenged the order dated 22.03.2014
whereby his objection in the execution petition has been rejected.
The decree which forms the basis of the execution petition has
already been upheld by the Hon'ble Supreme Court.
2. Mr. Pattjoshi, learned senior counsel submits that there is a
doubt about the identity of the property, hence the objections before
the Execution Court. He says that the translated copy of the Sale
Deed which formed an integral part of the suit, shows that the suit
property is different from what was set up in the suit which has been
decreed. He states that the Sale Deed which forms the basis of
recording of the transfer of title was in Urdu and that the translated
copy of the same was not available to the Trial Court for
appreciating the true identity of the property from which the
petitioners are sought to be dispossessed. He submits that the
property in the possession of the petitioners is not the same as
described in the site plan. He further submits that a suit has been
filed in this regard i.e. to ascertain the exact identity of the property
in occupation of the petitioner vis-a-vis the decreed property, and till
the determination of this factual position the impugned order ought
not to be given effect to. He seeks protection of Order 21 Rule 29
CPC.
3. This Court notices that in judgment dated 28.01.2011 in RSA
No.101/1986 the present petitioner had crystallised his case which is
recorded in para 3 of the judgment:
" Defence of the defendant No.1 was that he is the owner of
the suit property. His contention was that Ganga Saran
Dass had gifted this property to Makhan Lal in 1901 and
thereafter he gifted it to him. His further contention was that
Pandit Makhan Lal had occupied ground floor and first floor
of the premises. He had made a will dated 11.08.1954 by
virtue of which defendant No.1 is owner of the suit
property."
4. Quite clearly the petitioner had himself identified the property
which was the subject matter of the suit as averred by him and it was
so recorded in the aforesaid RSA. Therefore insofar as the suit
property has been identified by him in the RSA, it is that very
property which will be the subject matter of the execution petition.
Mr. Jos Chiramel, counsel for the respondent submits that the suit
property was identified in the site plan filed alongwith the plaint.
The Executing Court would proceed in evicting the petitioner from
the suit premises as identified and decreed.
5. Learned senior counsel for petitioner submits that insofar as
the execution proceedings are confined to the property mentioned or
identified in para 3 of the judgment in the RSA as aforesaid, he
would have no objection in the execution proceedings.
6. This Court is of the view that an objection on the merits of the
case would be the subject matter of an appeal as provided for under
the Code of Civil Procedure. The case was decreed on the basis of
the property so identified and contested in the suit. No dispute or
doubt was ever raised apropos the identity of the suit premises. The
petitioner went through the motion of a complete trial, right from the
Trial Court to the High Court and finally till the Supreme Court. He
lost all through. And throughout he never questioned the identity of
the suit premises. Any such argument at this stage would be
untenable. There could be no doubt about the identity of the suit
premises. Accordingly, the Trial Court is required to proceed in
terms of the identification so established.
7. The impugned order restricts itself to the property identified
and decreed in the suit. This Court finds that the impugned order
does not suffer from any material irregularity warranting interference
of this Court in its revisionary jurisdiction. This appeal is without
any merit and accordingly dismissed.
NAJMI WAZIRI
APRIL 25, 2014
ns
