Jai Singh Rawat vs Dargah Commitee Thr Chairman
2022 Latest Caselaw 2787 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Execution Second Appeal No. 3/2016

Jai Singh Rawat S/o Shri Narendra Singh Rawat, R/o D.K.M.
Shop No. 37, Station Road, Ajmer
                                                                   ----Appellant
                                   Versus
Dargah    Committee,      Through           Its   Chairman       Office   Dargah
Committee, Ajmer
                                                                 ----Respondent

For Appellant(s) : Mr. J.P. Goyal, Sr. Advocate with Mr. Nikhil Yadav, Advocate

For Respondent(s) : Mr. Sahir Hussain, Advocate (through VC)

HON'BLE MR. JUSTICE PRAKASH GUPTA

Judgment

Date of Judgment :: 1/04/2022

This Civil Execution Second Appeal has been filed by

the appellant-objector (for short, 'the objector') against the

judgment dated 15.10.2016 passed by Addl. District Judge No.1,

Ajmer (for short, 'the Appellate Court') in Civil Misc. Appeal No.

10/2015 (130/2015), whereby the Appellate Court dismissed the

appeal and affirmed the order dated 29.9.2015 passed by Civil

Judge City (West) Ajmer (for short, 'the executing court')

dismissing the objection filed by the objector under Order 21 Rule

97 CPC with a cost of Rs. 3000/-.

Facts of the case are that Dargah Committee filed a suit

for eviction and recovery of rent against Ram Niwas Singhal and

others, wherein Ram Niwas Singhal was stated to be the original

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tenant and Hanuman Singh Rawat as his sub-tenant. The said suit

was decreed on 7.9.1982. Aggrieved thereby, Ram Niwas Singhal

filed a Civil Regular Appeal No. 144/85 (179/82) before the

Appellate Court, which was dismissed vide judgment dated

17.7.2004. Being aggrieved, two S.B. Civil Second Appeal Nos.

452/2004 and 418/2004 came to be filed by wife and sons of

Hanuman Singh Rawat (including the father of the objector) and

son of Ram Niwas Singhal respectively, which were dismissed by

the Coordinate Bench of this Court vide order dated 24.5.2005.

Thereafter sons of Hanuman Singh Rawat filed objections under

Section 47 readwith Section 151 CPC, which were dismissed by

the Executing Court vide its order dated 18.5.2007. Subsequently,

daughters of sub-tenant Hanuman Singh Rawat filed objections

under Order 21 Rule 97 readwith Section 47 CPC, which was

dismissed by the Executing Court vide its order dated 18.5.2007,

against which Civil Execution First Appeal No. 46/2007 came to be

filed, which was dismissed vide order dated 21.7.2008. Being

aggrieved by the same, S.B. Civil Execution Second Appeal No.

4/2008 was filed, which was also dismissed by the Coordinate

Bench of this Court vide order dated 17.9.2008. Thereafter legal

representatives of sub-tenant Hanuman Singh Rawat filed

objections under Order 21 Rule 23 readwith Section 47 and 151

CPC, which came to be dismissed vide order dated 28.11.2008,

against which S.B. Civil Revision Petition No. 159/2008 was filed,

which was also dismissed by the Coordinate Bench of this Court

vide order dated 22.12.2008. Thereafter, the objections under

Section 47 readwith Section 151 CPC were filed by the legal

representatives of Hanuman Singh Rawat, which came to be

(3 of 16) [EXSA-3/2016]

dismissed by the Executing Court vide its order dated 11.7.2014.

The legal representatives of the Hanuman Singh Rawat also filed

an application under Section 151 CPC, which was also dismissed

by the Executing Court vide order dated 26.4.2014, against which

S.B. Civil Writ Petition No. 5525/2014 was filed, which was

dismissed by the Coordinate Bench of this Court vide order dated

23.5.2014. Now the objections under Order 21 Rule 97 CPC have

been filed by the grand son (objector) of the sub-tenant Hanuman

Singh Rawat before the Executing Court mainly on the ground that

he is in possession of shop no. 37 at Station Road, Ajmer since the

year 1976 in which he is running the business in the name and

style of 'Ganpati Kisan Agro Service'. It was also averred that the

objector was doing business in the said shop during the life time

of his father and after his death, the objector is doing the said

business. The decree holder is not entitled to get possession of

shop no. 37 pursuant to the eviction decree, which was passed in

Suit No. 224/1972 in relation to shop Nos. 38 and 39 only. The

objector who is in possession of shop no. 37 is not bound by the

decree dated 7.9.1982 passed in Civil Suit No. 224/1972, nor he

can be evicted from said Shop. Therefore, the objector be not

evicted from the shop no. 37 on the basis of decree dated

7.9.1982 passed in Suit No. 224/1972.

The decree holder filed reply to the said objections,

wherein it was averred that the objections filed by the objector are

barred by the principle of res-judicata and therefore, the same are

not sustainable in the eye of law. It was also averred that on

15.7.2006, Narendra Singh Rawat, father of the objector and

others had filed objections under Section 47 readwith Section 151

(4 of 16) [EXSA-3/2016]

CPC, where same objections were taken, which were dismissed by

the Executing Court vide order dated 18.5.2007, against which no

writ petition was filed before this Court and the said order attained

finality. It was further averred that against the judgment and

decree dated 7.9.1982 passed by the trial court, sub-tenant did

not file any appeal and legal representatives of sub-tenant directly

filed S.B. Civil Second Appeal No. 452/2004 before this Court,

which was dismissed vide judgment dated 24.5.2005. Thereafter

again on 28.7.2008, Narendra Singh (father of the objector) and

others filed objection under Order 21 Rule 23 readwith Section 47

and 151 CPC, which was dismissed by the Executing Court vide

order dated on 28.11.2008 with a cost of Rs. 1000/-, against

which S.B. Civil Civil Revision Petition No. 159/2008 was filed

before this Court, which was dismissed vide order dated

22.12.2008. It was also averred that Smt. Raj Kumari, Smt. Maya

and Smt. Hemlata, aunts (Bhua) of Objectors also filed objections

under Order 21 Rule 97 CPC, wherein the dispute with regard to

details of decreed property was raised and Objector's aunt claimed

to be in possession of the suit property, which were dismissed by

the Executing Court vide its order dated 18.5.2007. Against the

said order dated 18.5.2007, aunt of the objectors and others filed

Civil Execution First Appeal No. 46/2007, which was dismissed by

the Appellate Court vide judgment dated 21.7.2008. Thereafter

the objector's aunt and others filed S.B. Civil Execution Second

Appeal No. 04/2008 before this Court, which was also dismissed

vide judgment dated 17.9.2008. In the last, it was prayed to

dismiss the objections.

(5 of 16) [EXSA-3/2016]

On the basis of pleadings of the parties, the executing

Court framed following questions for determination:

i) Whether the applicant / objector is entitled to

get restrained the non applicants to take

possession of shop no. 37 and to dispossess him

illegally and unlawfully from the shop in question

pursuant to the judgment and decree dated

7.9.1982 passed in suit No. 224/1972?

ii) If it is so. What would be its effect?

After hearing the arguments of both the sides, the

Executing Court vide its order dated 29.9.2015 dismissed the

objections, against which Civil Misc. Appeal was filed, which also

came to be dismissed vide judgment dated 15.10.2016. Hence,

this Civil Execution Second Appeal has been filed.

Learned Sr. Counsel appearing for the appellant has

submitted that in suit no. 224/1972, decree in relation to shop no.

38 and 39 was sought and the trial court vide its judgment dated

7.9.1982 passed the eviction decree in relation to shop no. 38 and

39. He further submits that admittedly possession of shop no. 38

and 39 has already been taken in execution of the judgment and

decree. There is no decree in relation to shop no. 37 and the

objector is in possession of the shop no. 37 with his independent

rights and he cannot be evicted from the said shop in execution of

the decree dated 7.9.1982. He further submits that in order to

bring the factual position on record, Executing Court vide its order

dated 4.11.2016 appointed Bal Mukund Nagar as Site

Commissioner. In order to decide the objections raised in the

objection petition, evidence was required to be taken and the

(6 of 16) [EXSA-3/2016]

objections could not have been decided without evidence.

However, the Executing Court committed material illegality while

not granting an opportunity to adduce evidence in relation to the

objections raised in the objection petition.

Learned counsel for the decree holder has opposed the

same and submits that on the basis of the principle of res-

judicata, objections filed by the objector deserve dismissal from

the very beginning. The objector's father Narendra Singh Rawat

filed an application under Section 47 CPC on 15.7.2006 in the

execution, where same objections were taken, which was

dismissed by the court vide order dated 18.5.2007. He further

submits that objector's father Narendra Singh Rawat and others

again filed an objection on 28.7.2008 under Order 21 Rule 23

readwith Section 41 and 151 CPC, which were dismissed by the

Executing Court vide order dated 28.11.2008 with a cost of Rs.

1000/-, against which Civil Revision Petition No. 159/2008 was

filed before this Court, which was dismissed vide order dated

22.12.2008. He further submits that Smt. Raj Kumari, Smt. Maya

and Smt. Hemlata, aunts (Bhua) of Objectors also filed objections

under Order 21 Rule 97 CPC, wherein the dispute with regard to

details of decreed property was raised and Objector's aunt claimed

to be in possession of the suit property, which were dismissed by

the Executing Court vide its order dated 18.5.2007. Against the

said order dated 18.5.2007, aunt of the objectors and others filed

Civil Execution First Appeal No. 46/2007, which was dismissed by

the Appellate Court vide judgment dated 21.7.2008 observing

that the applicants (aunt of the objector) got the rights in the

property in question through their father Hanuam Singh Rawat

(7 of 16) [EXSA-3/2016]

and when Hanuman Singh Rawat himself did not file any appeal

against the judgment and decree and the second appeal filed by

the legal representatives of Hanuman Singh Rawat was dismissed

as not maintainable, the applicants (aunt of the objector) had no

independent right in relation to the suit property. Thereafter the

objector's aunt and others filed S.B. Civil Execution Second Appeal

No. 04/2008 before this Court, which was also dismissed vide

judgment dated 17.9.2008. When the legal representatives of the

sub-tenant have no independent right in relation to the suit

property, the objector, who is the grand son of the sub-tenant has

no locus-standi to file the objections.He furtgher submits that the

decree holder has to obtain the possession of the remaining

portion, which was in the sub-tenancy of sub-tenant Hanuman

Singh Rawat, which was also included in the decree. He further

submits that during the pendency of the objections, an application

under Section 151 CPC was also filed by the legal representatives

of the sub-tenant, wherein it was prayed that an opportunity may

be granted to them to lead evidence to the effect that portion

under the decree is a separate portion, which was dismissed by

the Court vide order dated 26.4.2014, against which S.B. Civil

Writ Petition No. 5525/2014 was filed, which was dismissed by the

Coordinate Bench of this Court vide order dated 23.5.2004 with

the observation that during trial, no objection was raised with

regard to demarcation of the property in dispute. In fact, it was

never mentioned that the portion is separate one from the

property in dispute. It was also observed that the appeals filed by

the petitioners against the judgment and decree were also

dismissed by the appellate courts.

(8 of 16) [EXSA-3/2016]

He further submits that objector is the heir of original

sub tenant Hanuman Singh Rawat, therefore, he has no right to

file the objections. During the pendency of the trial, no objection

was raised with regard to particulars of the tenanted shop and the

objector has filed the objections only with a view to delay the

execution of the decree. Both the courts below have committed no

error in dismissing the objections filed by the objector .

Heard learned counsel for the parties and considered

the rival submissions made by them.

Admittedly the decree holder Dargah Committee filed a

Civil Suit No. 224/1972 for eviction and recovery of rent against

the original tenant Ram Niwas, wherein Hanuman Singh Rawat

was stated to be as sub-tenant. In the said suit, details of the

tenanted premises was mentioned as under:

(i) 2 Shops DKS No.38 and 39 converted into one Hall in ground floor of Sarai Chisti Chaman,

(ii) 3 Rooms with front verandah and A Balconey in first floor facing Station Road, in Sarai Chisti Chaman.

(iii) One Room towards municipal town Hall in first floor open terrace and two latrines, in Sarai Chisti Chaman.

(iv) (a) one Godown of tin sheets inside Sarai Chisti Chaman.

(b) Three Godown of tin sheets with open space and tin sheets boundary all around inside Sarai Chisti Chaman.

(c) one pucca godown witth pucca verandah and Jaffry inside Sarai Chisti Chaman.

In the written statement filed by Ram Niwas original

tenant-defendant no.1, he admitted himself as the tenant of the

(9 of 16) [EXSA-3/2016]

premises as mentioned in para 1 of the suit. In addition to the

above, he made the following averments:

"Godowns of Tin Shed mentioned in item No, 4 (a) and

(b) could not be and were not let out to this defendant and only the land below these godowns was given and the defendant constructed these godowns at his cost with the consent and permission of the plaintiff in or about the year 1940. Similarly at item No. 4C the Varandah and the Jafri were constructed by this defendant at his cost with the permission and consent of the plaintiff, land lord."

The Trial Court vide its judgment dated 7.9.1982

decreed the suit for eviction, where it was held that the defendant

no.2 Hanuman singh Rawat was the sub-tenant. Against the said

judgment and decree dated 7.9.1982, original tenant Ram Niwas

filed Civil Regular Appeal No. 144/1985 (179/82), which was

dismissed by ADJ No.2, Ajmer vide judgment dated 17.7.2004. It

is relevant to mention here that during the pendency of the suit or

during the pendency of the appeal, no objection was raised in

relation to description / demarcation of the tenanted premises. It

is also not in dispute that against the judgment dated 17.4.2004

passed by the Appellate Court, son of original tenant Ram Niwas

Singhal filed S.B. Civil Second Appeal No. 418/2004 before this

Court and son(s) and daughters of sub-tenant Hanuman Singh

Rawat also filed S.B. Civil Second Appeal No. 452/2004. Both the

said appeals were dismissed by the Coordinate Bench of this Court

vide judgment dated 24.5.2005 and it was held that sons and

daughters of sub-tenant Hanuman Singh Rawat had no right to file

second appeal for the reason that no first appeal was filed either

(10 of 16) [EXSA-3/2016]

by the sub-tenant Hanuman Singh Rawat or his legal

representatives against the judgment dated 7.9.1982 passed by

the trial court. Admittedly on 15.7.2006 sons of sub-tenant

Hanuman Singh Rawat filed objections under Section 47 readwith

151 CPC, where following averments were made:

¼3½ ;g fd mijksDr btjk; esa fMdzhnkj }kjk btjk; ds lk{; tks ifjf'k"V ckcr ifjlj izLrqr dh xbZ gS mlesa [email protected]~;wuku ds dCts esa tks ifjlj gS mldk lgh fooj.k ugha fy[kk gS rFkk tks fooj.k fy[kk x;k gS og c<+k p<+kdj fy[kk x;k gS A tc en~;wuku ds ikl ifjf'k"V esa vafdr ifjlj dCts esa gh ugha gS rks fMdzhnkj dks en~;wuku ls mDr of.kZr ifjlj dk dCtk izkIr djus dk dksbZ gd o vf/kdkj ugha gS A ¼5½ ;g fd fMdzhnkj dks bl rF; dh HkyhHkafr tkudkjh gS fd en~;wuku ds dCts esa dksbZ nks ysfVªu ugha gS vkSj uk gh dksbZ vkoklh; edku en~;wuku ds dCts esa gS] ckotwn tkudkjh fMdzhnkj us vius btjk; esa ifjlj dk iw.kZ fooj.k ugha vafdr fd;k gS rFkk fMdzhnkj okj.V dCts ls [email protected]~;wuku dks csn[ky djus ij vkeknk gS tcfd fMdzhnkj dks en~;wuku ls mDr ifjlj dks ysus dk dksbZ gd o vf/kdkj ugha gS tks en~;wuku ds dCts esa gh ugha gS A

The said objections were dismissed by the Executing

Court vide its order dated 18.5.2007 and following observation

was made in relation to the objection taken with regard to

particulars of the tenanted premises:

** vkifRrdrkZ dks vU; vkifRr ifjlj dk fooj.k lgh ugha gksus ds lEcU/k esa gS] ysfdu ;g Li"V ugha fd;k x;k gS fd orZeku esa vkifRrdrkZ ds dCts esa D;k ifjlj gS \ vr% fMdzhnkj ds dFkuksa o ukftj dh fjiksVZ ij vfo'okl djus dk dksbZ dkj.k ugha gS A ** Thereafter objector's aunt i.e. daughters of Hanuman

Singh Rawat namely Smt. Raj Kumari, Smt. Maya and Smt.

Hemlata filed objections under Order 21 Rule 97 CPC, wherein

also the objection was raised with regard to description /

demarcation of the suit property, which was dismissed by the

(11 of 16) [EXSA-3/2016]

Executing Court vide its order dated 18.5.2007. Against the said

order, Smt. Raj Kumari and others filed Civil Appeal no. 46/2007,

which was also dismissed by ADJ No.1, Ajmer vide judgment

dated 21.7.2008. Against the said order, S.B. Civil Execution

Second Appeal No. 4/2008 was filed before this Court, which was

also dismissed by the Coordinate Bench of this Court vide order

dated 17.92008 with the following observations:

"In an execution proceeding, application under Order 21 Rule 97 CPC filed by the present appellants was dismissed by the trial court vide order dated 18.5.2007. The above order passed by the trial court has further been affirmed by the lower appellate court vide order dated 21.7.2008. Since after due consideration proper discretion has already been used both the courts below, in the facts and circumstances, no further interference is called for by this court. The appeal is dismissed, accordingly, as having no merits."

Thereafter, sons and daughters of defendant no.2 /

judgment debtor Hanuam Singh Rawat filed objections under

Order 21 Rule 23 readwith Section 47 and 151 CPC, which was

dismissed by the Executing Court vide its order dated 28.11.2008.

The said order was challenged before this court by filing S.B. Civil

Revision Petition No. 159/2008, which was dismissed by the

Coordinate Bench of this Court vide its order dated 22.12.2008.

Thereafter the legal representatives of sub-tenant Hanuman Singh

Rawat filed objections under Section 47 readwith Section 151

CPC, wherein following objection was raised in relation to the

description of the suit property:

¼5½ ;g fd Jheku~ lsy vehu egksn; }kjk 'ks"k ,d nqdku dk dCtk vkSj fn;s tkus ds fy, vkxzg fd;k x;k ysfdu ekSds ij nqdku la[;k&39 dk dCtk Jheku~ lsy vehu egksn; }kjk ys fy;k x;k vkSj nqdku la[;k 38 dh vkM esa ,d nqdku tks nqdku la[;k 37 ds vM+ok mRrj fn'kk dh vksj gS vkSj

(12 of 16) [EXSA-3/2016]

en~;wuku ds dCts esa gksdj O;olk;jr gS A bu nksuksa nqdkuksa dks ,d gkWy fMdzhnkj ds deZpkjh }kjk gksuk crykdj bldk dCtk lfEefyr :i ls ekaxs tkus ij fookn gks x;k ftl ckcr Jheku~ lsy vehu egksn; dks ekSds dh oLrqfLFkfr ls iw.kZr;k okni= o fMdzh ds lanHkZ esa voyksdu djok;s tkus ds ckotwn bu rF;ksa dk dksbZ Hkh lekos'k vius izLrqr 'kqnk fjiksVZ esa ugha fd;k x;k ls ;g mtznkjh ekuuh; U;k;ky; ds le{k izLrqr fd;k tkuk vko';d gqvk gS A ¼7½ ;g fd pawfd en~;wuku ds ikl esa nqdku 38 o 37 ds e/; ,d nqdku ftlesa en~;wuku orZeku esa x.kifr fdlku ,xzksa ds uke ls O;olk; djrs gSa ftl ij ,[email protected] dk dk;Z Hkh lEikfnr gksrk gS okyh nqdku ftldk fd dksbZ Hkh fooj.k u rks okni= esa vafdr gqvk ,oa uk gh ekuuh; U;k;ky; }kjk oknh ds i{k esa fu"dklu gsrq fMdzh Qjek;k x;k ds ckotwn bl e/; okyh nqdku dk dCtk Jheku~ ukftj egksn; ls fMdzh dh vkM+ esa fy;s tkus ds fy, vkrqj gks j[ks gSa ls ;g mtznkjh fMdzh dh larqf"V mUekspu gsrq Jheku~ ukftj egksn; }kjk dCtk fnukad 10-12-2008 dks fy;s tkus ds le; mn~Hkqr gqbZ ls izLrqr fd;k tkuk vko';d gqvk gS] tks izLrqr gS A ¼9½ ;g fd en~;wu la[;k&2 guqeku flag ds iq= ujsUnz flag ftudh fd orZeku esa e`R;q gks pqdh gS ds iq= t;flag jkor }kjk vius ,[email protected]

vks dk O;olk; lapkfyr fd;k tk jgk gS ls fdlh Hkh izdkj ls fd;s tk jgs O;olk; esa fo/u] ck/kk o vojks/k dkfjr dh tkrh gS rks en~;wuku dks vis{kkd`r vf/kd dfBukbZ ,oa vlqfo/kk gksxh A

The said objections were dismissed by the Executing

Court vide its order dated 11.7.2014 with the following

observations:

** ekuuh; mPp U;k;ky; us vius fu.kZ; esa ;g Hkh Li"V vafdr fd;k gS fd U;k;ky; dks fMdzh dk fu"iknu fMdzh ds vuqlkj gh djus dk vf/kdkj gS vkSj lEifRr ds ckcr fdlh izdkj dh dksbZ vkifRr mBkus dk vkifRrdrkZx.k ,oa mifdjk;snkj ds okfjlku dks ftuds }kjk u iwoZ esa Hkh gj izdkj dh fujFkZd ,oa lkjghu vkifRr;ka mBkbZ xbZ] dks bl vkosnu i= esa iqu% mBkus dk dksbZ vf/kdkj ugha gS A ekuuh; jktLFkku mPp U;k;ky;] ihB t;iqj }kjk ikfjr mDr fu.kZ; fnukad 23-05-2014 ds voyksdu ls ;g Li"V gks tkrk gS fd ekuuh; mPp U;k;ky; us Hkh vkifRrdrkZx.k }kjk fMdzh'kqnk ifjlj ds fooj.k ds lEcU/k esa tks vkifRr mBkbZ gS] mls lkjghu ekurs gq,

(13 of 16) [EXSA-3/2016]

U;k;ky; dks fMdzh fnukad 07-09-1982 dh ikyuk btjk; ds ek/;e ls lqfuf'pr djuh gS A 11 i=koyh ds voyksdu ls ;g Hkh Li"V gS fd btjk;/khu fMdzh U;k;ky; gktk }kjk fnukad 07-09-1982 dks ikfjr dh xbZ Fkh] ftldh izFke vihy fnukad 27-07-2004 dks fujLr gqbZ rFkk mDr fu.kZ; ds fo:) ekuuh; mPp U;k;ky; esa izLrqr vihy dk fu.kZ; fnukad 24-05-2005 dks ikfjr djrs gq, izLrqr vihy dks fujLr dj nksuksa v/khuLFk U;k;ky;ksa ds fu.kZ; dh iqf"V dhA fMdzhnkj tks o"kZ 1982 ls vius vkf/kiR; dh lEifRr dk dCtk izkIr djus ckcr U;k;ky;ksa esa pkjktksgh djrk vk jgk gS mlds i{k esa ekuuh; mPp U;k;ky; ls Hkh o"kZ 2005 esa fu.kZ; gks tkus ds i'pkr~ Hkh vkt fnukad rd mls fMdzh'kqnk ifjlj dk dCtk izkIr ugha gks ldk gS tks dkQh yEck vUrjky gS A fof/k dk ;g lqLFkkfir fl)kar gS fd fu.kZ; esa foyEc U;k; dk guu gS A ekuuh; mPp U;k;ky; }kjk vius fu.kZ;ksa ds ek/;e ls v/khuLFk U;k;ky; ds fu.kZ; ,oa fMdzh dh iqf"V dh tk pqdh gS] rc vkifRrdrkZx.k }kjk fcuk fdlh vf/kdkj ds ckj ckj fujFkZd ,oa lkjghu vkifRr;ka izLrqr dj btjk; dh dk;Zokgh esa foyEc dkfjr fd;k tk jgk gS tks fdlh Hkh izdkj ls U;k;ksfpr izrhr ugha gksrk gS A 12 izLrqr U;kf;d fofu'p; 2013¼9½ ,l-lh-lh- ist 491 ¼lR;orh cuke jktsUnz flag o vU; ½ esa ekuuh; mPp U;k;ky; us ;g fl)kar izfrikfnr fd;k gS fd btjk; esa nsjh fd;k tkuk fuUnuh; gS A blh izdkj 2013¼10½ ,l-lh-lh- ist 623 ¼Hkw vokfIr dysDVj o vU; cuke lqjsUnz dkSj½ esa ekuuh; mPp U;k;y; }kjk ;g vfHkfu/kkZfjr fd;k gS fd btjk; U;k;ky;

dks btjk; v/khu fMdzh dh oS/krk ;k lgh gksus ds fcUnq dks fu.khZr ugha fd;k tkuk gS] blh izdkj mlesa tks fMdzh'kqnk lEifr dk fooj.k fn;k gS] mlls fHkUu fdlh vU; fooj.k ds lEcU/k esa dksbZ tkap fd;k tkuk vko';d gSA ,-vkbZ-vkj 1996 ¼,l-lh-½ ist 780 ¼ ch- xaxk/kj cuke ch-th-jktkfyaxe½ esa ;g vfHkfu/kkZfjr fd;k x;k gS fd btjk; ds nkSjku fMdzh'kqnk lEifRr dh btjk; vFkok okn ds nkSjku fMdzh'kqnk lEifRr esa ifjorZu] jn~nkscny vFkok uofuekZ.k dk;Z fd;s tkus dk dksbZ izHkko btjk; v/khu fMdzh dh btjk; ij drbZ izHkko'khy ugha gS A ** During the pendency of the said objections, objectors

filed an application under Section 151 CPC, whereby it was prayed

that before passing an order on the objections, objectors may be

granted opportunity to lead oral evidence, which was dismissed by

(14 of 16) [EXSA-3/2016]

the executing court vide its order dated 26.4.2014. Against the

said order, the objectors filed S.B. Civil Writ petition No.

5525/2014 before this Court, which was dismissed by the

Coordinate Bench of this Court vide order dated 23.5.2014.

Relevant part of the order dated 23.5.2014 is reproduced as

under:

*"A bare perusal of the impugned order clearly reveals that the learned Magistrate has noticed the fact that even during trial, no objection was raised with regard to demarcation of the property in dispute. In fact, it was never mentioned that the portion is separate one from the property in dispute. Moreover, the appeals filed by the petitioners against the judgment and decree were also dismissed by the learned appellate courts. Thus, the findings of the learned trial court vis-a-vis the suit property were confirmed. Furthermore, the learned Magistrate has relied on certain decisions of the Hon'ble Supreme Court where the Hon'ble Supreme Court has clearly held that a decree has to be executed on the basis of the documents which were submitted, and a new demarcation of the property cannot be done by the executing court. Moreover, it is settled principle of law that the executing court cannot go beyond a decree."

Thereafter Jai Singh Rawat, grand son of sub tenant

Hanuman Singh Rawat (son of Narendra Singh Rawat) filed the

present objections. In my considered view, when same dispute

with regard to suit property had already been raised time and

again by the legal representatives of defendant no.2 (sub-tenant)

judgment debtor no. 2 Hanuman Singh Rawat, Jai Singh Rawat,

who is the grand son of Hanuman Singh Rawat has no right to

raise such objection, more particularly when during trial no

objection was raised in relation to the description of the suit

(15 of 16) [EXSA-3/2016]

property and the judgment passed by the trial Court in relation to

the tenanted premises had already been affirmed.

So far as granting opportunity to the objector to adduce

evidence is concerned, when same application filed by other legal

representatives of the sub-tenant, had already been dismissed

and the said order was affirmed by this Court vide its order dated

23.5.2014, in my considered view, no ground is made out to

grant an opportunity to the objector to lead evidence, moreso

when no such request was made by the objector before the

executing court.

So far as the order dated 4.11.2016 by which the

Commissioner was appointed by the trial court is concerned, I am

of the view that this order is not at all relevant to adjudicate the

issue involved in the present appeal nor it affects the merits of the

case as after passing the impugned judgment dated 15.10.2016,

the order dated 4.11.2016 has been passed, moreso when no

ground in this regard has been taken in this appeal.

From the material on record, it is noticed that legal

representatives of sub-tenant Hanuman Singh Rawat filed various

objections, which were dismissed time and again by detailed

orders, but despite that the present objections have again been

filed by Jai Singh Rawat, which is nothing but an abuse of the

process of the law, moreso when the objector did not mention as

to in what capacity, he is in possession of the suit property. From

the report of Sale Ameen dated 5.3.2009, it is evident that in the

execution, possession of part of the premises was handed over

and decree was not fully satisfied.

(16 of 16) [EXSA-3/2016]

The objector Jai Singh Rawat has filed the objections

only with a view to delay the execution of the decree, passed on

7.9.1982, particularly when he is the grand son of sub-tenant

Hanuman Singh Rawat and the objections filed by the legal

representatives of sub-tenant Hanuman Singh Rawat had already

been dismissed.

There is a concurrent finding of facts recorded by both

the courts below, which is based on material available on record.

Both the courts below have rightly considered the material

available on record and the counsel for the objector having failed

to point out any question of law much less substantial question of

law, this civil execution second appeal is liable to be dismissed,

which stands dismissed accordingly with exemplary cost of Rs.

2.00 lacs, which shall be paid by the objector to the decree holder.

Consequent upon the dismissal of the appeal, pending

applications, if any, also stand disposed of accordingly.

(PRAKASH GUPTA),J

DK

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