Delhi High Court
Gauri Shankar vs Hari Shankar @ Nanu & Anr. on 15 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex. F.A. No.23/2014
% 15th September, 2014
GAURI SHANKAR ......Appellant
Through: Mr. Dushyant Swaroop, Advocate
with Mr. P.K. Mittal, Advocate.
VERSUS
HARI SHANKAR @ NANU & ANR. ...... Respondents
Through: Mr. Lalit Gupta, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
Caveat No.801/2014
1. Counsel appears for the caveator and thus the caveat stands
discharged.
+ Ex. F.A. No.23/2014 and C.M. No.15238/2014 (stay)
2. The challenge by means of this execution first appeal is to the
order of the trial court dated 21.7.2014 by which objections filed by the
petitioner/objector challenging execution of the judgment and decree passed
by the civil court dated 31.5.2010, and confirmed in the first appeal by this
Court on 22.9.2011, have been dismissed.
3. The facts of the case are that the respondent no.1 herein had
filed a suit for partition against his brother- the respondent no.2 herein, with
respect to the property bearing no.6178-80, Gali Shiv Mandir, Fatehpuri,
Delhi-110006. A preliminary decree was passed on 8.12.2005 declaring the
share of respondent no.1/plaintiff as 4/5th and that of respondent
no.2/defendant as 1/5th. An appeal against the preliminary decree filed by the
respondent no.2 herein (defendant in the suit) was dismissed by this Court in
RFA No. 657/2006 vide judgment dated 24.5.2007. Thereafter, a final
decree for partition was passed on 31.5.2010 and which too was again
challenged in an appeal before this Court by the respondent no.2, and this
appeal being RFA No.462/2010 titled as Shiv Shanker Vs. Hari Shankar @
Nanu was also dismissed by this Court by confirming the shares as per the
preliminary decree but changing the portions of the suit property which were
to fall inter-se the respondents, and who were the parties to the suit for
partition. This judgment and decree passed by the High Court dated
22.9.2011 became final and the same was thereafter sought to be executed
by the respondent no.1/decree holder, and in which execution proceedings,
the petitioner who is the son of the respondent no.2 herein, filed the subject
objections which have been dismissed by the executing court.
4. The trial court after noting the aforesaid facts holds that the
petitioner has no independent right to remain in possession of the suit
property, and once there is no independent right/title, the objector cannot
stay in the suit property by objecting to the execution of the decree.
5. I have gone through the objections, which have been filed from
pages 67 to 71 of the paper book, and nowhere in the same an independent
title to the suit property is pleaded. Admittedly, the suit property belonged
to the mother of the respondents i.e late Smt. Laxmi Devi. The sister of the
respondents had already executed registered relinquishment deed giving up
her share in the suit property in favour of the respondent no.1 herein/brother.
Accordingly, the preliminary decree gave 4/5th share in the suit property to
the respondent no.1 and only 1/5th share in the suit property to the father of
the objector/respondent no.2. Petitioner has no independent title and nor is
any title pleaded in the objections, and obviously which is because once the
property was of the grandmother Smt. Laxmi Devi, the grandson will not
have any right in the property once Smt. Laxmi Devi died leaving behind her
own children - two of the children being the two sons and who are
respondents to this petition, and they were the plaintiff and defendant in the
suit for partition.
6. In view of the above, there is no merit in this petition, and the
objections, and which is/are hence dismissed. Petitioner is obdurately
causing obstruction in execution of the judgment and decree, and therefore
these objections are dismissed with costs of Rs.20,000/- and which costs
shall be paid within six weeks from today.
VALMIKI J. MEHTA, J
SEPTEMBER 15, 2014
Ne
