Rajasthan High Court - Jodhpur
Sumer Singh vs State Of Rajasthan on 2 December, 2021
Bench: Pushpendra Singh Bhati
(1 of 3) [CW-9564/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9564/2019
Sumer Singh S/o Late Shri Pancharam, Aged About 41 Years, By
Caste Prajapat, Resident Of Kheta Nagar, Gram Dhand,
Jhalamand, Tehsil And District Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through The District Collector, District
Jodhpur.
2. The District Collector, Jodhpur.
3. Tehsildar, Tehsil Office, Jodhpur, Raj.
4. Deputy Commissioner (East), Jodhpur Vikas Pradhikarn,
Jodhpur (JDA Jodhpur).
5. Madan Lal S/o Shri Goparam Ji, Aged About 60 Years, By
Caste Kumhar R/o Gram Dhand, Jhalamand Tehsil
Jodhpur.
6. Additional District Magistrate (I) And In-Charge Officer Of
Judicial Branch, Jodhpur.
7. Deputy Commissioner Of Police (West), Jodhpur.
----Respondents
For Petitioner(s) : Mr. Ranjeet Joshi with Mr. Abhijeet
Joshi
For Respondent(s) : Mr. Nitin Trivedi, Mr. Govind Suthar
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
02/12/2021
1. This writ petition has been preferred claiming the following
reliefs:
"(a) by an appropriate writ, order or direction the
impugned order Annexure passed by respondent No.6
may be quashed and set aside.
(b) by an appropriate writ, order or direction the
respondents No.1 to 4 and 6 may be directed that in
pursuance of Annexure-8 the room of the petitioner may
not be demolished and destroyed and the impugned order
Annexure-8 may not be executed and implemented by the
respondent No.7 or his subordinate officers nor provide
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any police force in compliance of Annexure-8 order in the
interest of justice..
(c) That by an appropriate writ, order or direction the
respondents may be directed to implement the Annexure-
2 judgment and decree as well as to implement Annexure-
4 order dated 22.06.2004 in the interest of justice."
2. Learned counsel for the petitioner submits that the parties
are family members and are contesting the outcome of a partition
took place between them.
3. Learned counsel for the petitioner further submits that the
respondent No.5 filed a revenue suit under Section 53 read with
Section 88 of Rajasthan Tenancy Act, 1955 against the petitioner's
father, namely, Late Shri Panchram and other co-tenants, before
the Assistant Collector & Sub Divisional Officer, Jodhpur on
18.9.2003. Learned counsel also submits that in the said suit, an
ex parte judgment dated 29.03.2004 and decree dated
22.06.2004 were passed, whereby 1/3rd portion of the land in
question was apportioned in equal share to each of the brothers.
4. Learned counsel for the petitioner further submits that since
it was an ex parte judgment and decree, therefore, the same were
not lawful. Learned counsel however, submits that even if the
same is to be believed as it apportions equal share to all the three
parties, then also the petitioner has been saddled with additional
responsibility of giving a way to the respondent-brother, which
reduces his 1/3rd share, and thus, causes a serious prejudice to
the petitioner.
5. Learned counsel for the petitioner thus submits that in case
such way has to be provided by the petitioner, then it shall
prejudice as his share will get reduced.
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6. Learned counsel for the petitioner however, is not in a
position to justify as to in what circumstances, the aforementioned
judgment dated 29.03.2004 and decree dated 22.06.2004 being
executed, can be challenged, at this belated stage, on merits.
7. Learned counsel for the private respondent however, submits
that as per the aforementioned judgment and decree itself, extra
portion was given to the present petitioner, in lieu of the way that
he was supposed to provide. Learned counsel further submits that
today, at this belated stage, if this court enters into the merit of
the judgment dated 29.03.2004 and decree dated 22.06.2006,
then it shall be highly prejudicial to the private respondent.
8. After hearing learned counsel for the parties as well as
perusing the record of the case, this Court is of the firm opinion
that the decree even if ex parte has been passed on 22.06.2004,
the same only requires the equal distribution of property amongst
the family members as 1/3rd-1/3rd-1/3rd, and thus, there is
hardly anything on merits of the case or on the aspect of delay,
which could warrant interference of this Court. Moreover, the
execution proceedings are a necessary corollary of the decree
passed and the right to way also is enshrined in the decree itself.
9. Thus, in view of the above, no case for making any
interference is made out.
10. Consequently, the present petition is dismissed. All pending
applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI),J.
42-SKant/-
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