Rajasthan High Court
Smt Indra Devi vs Ragjav Dass Goyal And Another on 22 December, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 425/2014
1. Smt Indira Devi Wife of Late Shri Radhey Shyam (Since
Deceased) through Legal Heir:-
1/1 Rajendra Kumar Sharma Son of Late Shri Radhey Shyam
Sharma, Aged about 61 years, Resident of Arya Samaj Mandir
Road, Devi Store ka Chauraha, Gangapur City, District Sawai
Madhopur (Raj.)
----Appellant
Versus
Deputy Collector, Gangapur City,
----Respondent
Connected With
S.B. Civil Miscellaneous Appeal No. 399/1997
1. Hanuman S/o Baldevram, Since deceased through his legal
representatives:
1/1. Madan Lal Son of Late Hanuman Prasad
1/2. Banwari Son of Late Hanuman Prasad
1/3. Rajendra Kumar S/o Late Hanuman Prasad
1/4. Rajesh Kumar S/o Late Hanuman Prasad
1/5. Vimla Devi daughter of Late Hanuman Prasad
1/6. Santra Devi daughter of Late Hanuman Prasad
2. Mohan Lal son of Baldevram since deceased through his legal
representatives:
2/1. Satya Narayan s/o Late Shri Mohan Lal
2/2. Ratan Lal Son of Late Shri Mohan Lal
2/3. Sagar Mal s/o Late Shri Mohan Lal
2/4. Santosh S/o Late Shri Mohan Lal
All resident of Gangapur City, District Sawai Madhopur
(Rajasthan)
----Appellants
Versus
1. The Sub Divisional Officer, Gangapur City, District Sawai
Madhopur (Rajasthan)
2. Mulchand S/o Sharvan Lal
3. Kamal Dass S/o Keshav Dass Brahmin
4. Ragahvdas S/o Shyam lal Mahajan
all Nos. 2 to 4 resident of Gangapur City, District Sawai
Madhopur (Rajasthan)
5. Durga Devi w/o Ramjilal
6. Sarogini Devi W/o Suraj Narain Brahmin
7. Indra Devi W/o Radhey Shyam Brahmin
8. Girraj S/o Mishrilal Brahmin
9. Suraj Narain S/o Ramji Lal Brahmin
10. Radhey Shyam s/o Ramjilal
11. Jagdish s/o Ramjilal,
all r/o Ramgapur City, District Sawai Madhopur
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12. Mst. Premdevi d/o Ramjilal w/o Kishan, presently R/o
Mathura (UP)
----Respondents
S.B. Civil Misc. Appeal No. 582/1997
1. Smt Sarojini Devi W/o Late Suraj Narayan (deceased) through
LR's
1/1. Ashutosh Parashar S/o Late Sarojini Devi (deceased)
through LR's
1/1/1. Savitiri Sharma W/o Late Ashutosh Parashar
1/1/2. Rekha Sharma D/o Late Ashutosh Parashar
1/1/3. Avinash Parashar S/o Late Ashutosh Parashar
1/1/4. Deepika Sharma D/o Late Ashutosh Parashar
1/1/5. Soniya Parashar D/o Late Ashutosh Parashar
1/2. Avdesh Kumar Parashar S/o Late Sarojini Devi
1/3. Hemlata Sharma D/o Late Sarojini Devi
1/4. Savitri Sharma D/o Late Sarojini Devi
1/5. Dinesh Parashar S/o Late Sarojini Devi (deceased) through
Lr's
1/5/1. Dheeraj Parashar W/o Late Dinesh Parashar
1/5/2. Yoshiba Parashar D/o Late Dinesh Parshar
1/5/3. Somendra Parashar S/o Late Dinesh Parashar
----Appellants
Versus
1. Raghav Das Goyal, Advocate, S/o Shri Shyam Lal
2. Kamal Das S/o Shri Keshav Das
3. Moolchand S/o Srawan Lal
All R/o Gangapur City
4. SDO- Sub Divisional Officer, Gangapur City,
5. Indira Devi W/o Radhey Shyam
6. Hanuman S/o Baldevram Khati
7. Mohan Lal S/o Baldevram Khati
8. Girraj S/o Shri Mishrilal
9. Surajnarayan S/o Shri Ramjilal (deceased)
10. Radhey Shyam S/o Ramjilal
11. Jagdish S/o Ramjilal
All R/o Gangapur City
----Respondents
For Appellant(s) : Mr. S K Gupta, Sr. Advocate assisted by
Ms. Surabhi Agarwal & Mr. Rahul Sharma
(For appellant in CMA No.399/1997)
Mr. Siddharth Bapna (For appellant in
CFA No.425/2014)
Mr. Harshad Kapoor (For appellant in Civil
Misc. Appeal No.582/1997)
For Respondent(s) : Ms. Anita Agarwal with
Mr. Laxmi Kant (For respondent In CFA
No.425/2014, For respondent in CMA
No.399/1997 & For respondent No.4 in
Misc. Appeal No.582/1997)
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HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Judgment Reserved On 19.10.2022
Judgment Pronounced ON December 22nd, 2022
BY THE COURT
1. In all three appeals, order under challenge dated 05.04.1997
which came to be passed during execution proceedings of a
common judgment and decree dated 16.12.1967 passed in S.B.
Civil Regular First Appeal No.94 of 1960 titled Mangilal Vs. Smt.
Druga Devi, whereby and wherunder a Civil Suit bearing No.
10/1953, instituted way back on 05.10.1953, which was decided
on 04.03.1960, was decreed by High Court in civil regular first
appeal.
2. All three appeals have been heard together and stand
decided by this common judgment.
3. Heard learned counsel for both parties at length and perused
the record.
4. The relevant facts which are necessary to be noticed and as
culled out from the available record are that the civil suit in
respect of an immovable property, situated at Gangapur City
District Swai Madhopur comprising a "bagichi", a "dharmshala", a
"well" and a "Chatri" of idol Mahadev Ji etc. commonly known as
Bhagat-Wali-Bagichi, was instituted way back on 05.10.1953 by
three persons i.e. Mangilal, Ramprasad and Gopinath, in a
representative capacity on behalf of general public of Gangapur
City and after obtaining sanction of the Advocate General under
Section 92 of the Code of Civil Procedure. It was stated that
through a registered document dated 04th August 1936 (Exhibit-
3), the suit property was entrusted to trust to be utilized for the
(4 of 21) [CFA-425/2014]
public, residence of travelers and sanyasis and Ramjilal (defendant
No.1) and Sundarlal (defendant No.4) were appointed as trustees.
The suit property was shown in site-plan (Exhibit X), annexed with
the plaint. The suit was instituted alleging inter alia that plaintiffs
have felt aggrieved by acts of trustees, to grab the trust property
for their own use depriving the public at large to utilize the trust
property and it was stated that trustees Ramjilal (defendant No.1)
had executed a fictitious gift deed dated 04 th July, 1953 (Exhibit
18) in favour of his wife Smt. Durga Devi (defendant No.2) and
thereafter, also drew a fictitious trust deed dated 25 th June 1953
(Exhibit 19) in favour of his son Surajnarain (defendant No.3). In
respect of trustee Sundarlal (defendant No.4), it was stated that
he had renounced his status as trustee and had left Gangapur City
near about ten years ago. Therefore, plaintiffs instituted this civil
suit in the public interest in representative capacity, for proper
management of trust property and prayed for removal of
defendant No.1 Ramjilal, defendant No.3 Surajnarain and
defendant No.4 Sudarlal from their office as trustees and for
seeking appointment of suitable persons in their place in whom
trust property may be ordered to be vest and consequently prayer
to declare the gift deed dated 04.07.1953 as null and void was
also made. During course of first appeal, two plaintiffs i.e.
Gopinath and Ramprasad passed away as well as defendant No.1
Ramjilal also passed away. Legal representatives of defendant
No.1 were brought on record.
5. Initially, learned trial court dismissed the suit vide judgment
dated 04.03.1960 which was challenged by plaintiff Mangilal by
way of S.B. Regular First Appeal No.94/1960 titled Mangilal Vs.
(5 of 21) [CFA-425/2014]
Smt. Durga Devi before the Single Bench of Rajasthan High Court.
The first appeal was allowed vide judgment and decree dated
16.12.1967 and the judgment of trial court was set aside. The
judgment is reported in [RLW (1968) Raj. 347]. In the first
appeal, after appreciation of entire on merits, the High Court has
recorded a fact finding and in para 22, it has been held; that the
whole of Bhagat-Wali-Bagichi and all the suit properties are the
properties of a public trust; that defendant Ramjilal was trustee of
the whole of that property and not merely for the dharmshala
and; that the suit was maitainable for all the properties. The
conduct of trustees Sunderlal and Suraj Narain was also found
against the interest of trust properties and finally, following decree
was passed in first appeal:-
"The appeal is allowed, the impugned judgment and
decree are set aside and Suraj Narain defendant No.3
and Sunderlal defendant No.4 are removed as trustees.
It is ordered that the entire suit property shall vest in a
trustee to be appointed by the District Judge and the
defendants are directed to deliver the property to the
trustee so appointed. Gift deed Ex.18 is declared to be
void and illegal and shall not affect the trust property.
The appellant is allowed costs here and below."
(Emphasis Applied)
6. The judgment and decree dated 16.12.1967 was challenged
by the defendant No.2 Durga Devi as well as defendant No.3 Suraj
Narain, by way of filing two separate D.B Civil Special Appeals
No.4 & 5 of 1968 before the Division Bench. Both appeals were
heard and decided on merits vide common judgment dated
25.01.1972, affirming the judgment and decree dated
16.12.1967. The judgment of Division Bench is reported in [RLW
(6 of 21) [CFA-425/2014]
(1972) Raj. 201] titled Suraj Narain Vs. Mangilal. Thus, the
judgment and decree dated 16.12.1967 has attained finality.
Counsel for both parties states that the original record of suit is
not available hence facts have been gathered as statements in
judgments and memo of appeals.
7. In compliance of the judgment and decree dated
16.12.1967, in the execution proceedings, learned Additional
District Judge, Gangapur City vide its order dated 12.02.1979 has
appointed trustees including Sub Divisional Magistrate (SDM),
Gangapur City and other private persons namely Gulab Chand,
Moolchand, Ramjilal, Kamaldas and Raghav Das. In the order
dated 12.02.1979, it has been observed that the suit property
shall henceforth vest in the appointed seven trustees, who will
make proper arraignment of the trust property. The SDM,
Gangapur City as a managing trustee will act as manager of the
property and he is directed to take over charge of the property
from defendants. Thus, it is obvious that the SDM, Gangapur City
is an ex officio trustee of the trust property. The execution
application was ordered to be posted for further order. The
execution proceedings being execution No.5/1970 (43/1971) titled
Mangilal Vs. Radheshyam were pursued for taking possession of
the trust property. In the execution proceedings apart from
defendants No.2, 3 & 4 (Durga Devi, Suraj Narain and Sunderlal),
two sons and one daughter of deceased defendant No.1 i.e.
Radheshyam, Jagdish & Smt. Prem, who had brought on record in
the suit, after death of defendant No.1 Ramjilal, were also party.
Objections were filed by Smt. Indra Devi, Hanuman & Mohan Lal,
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Smt. Sarojani Devi and Girriaj Prasad, which were dismissed vide
order dated 01.02.1978.
8. It has been stated that order dated 01.02.1978 has
challenged by objectors/appellants by way of filing revision
petition before High Court, but either of the counsel is not aware
about the final fate of civil revision. Thereafter, warrant for
possession was issued and when Court Nazir went at site to
execute the warrant for possession, the present appellants-
objectors resisted and objected the execution of warrant for
possession, therefore, Court Nazir made a report dated
30.04.1978 stating that without assistance of Police, it is not
possible to execute the decree for possession dated 16.12.1967.
At this juncture, the appointed trustees along with ex officio
trustee SDM, Gangapur City, moved an application dated
19.12.1978 under Order 21 Rule 97 CPC, seeking police assistance
in order to execute warrant for possession and take possession of
the trust property. The application was registered as Civil Misc.
Case No.14/1978 titled Gulab Chand Modi Vs. Durga Devi.
9. In the application, under Order 21 Rule 97 CPC filed by
appointed trustees, objector-Indra Devi was impleaded as non-
applicant No.3, objectors-Hanuman & Mohan Lal were impleaded
as non-applicants No.4 & 5 and objector-Sarojani Devi was
impleaded as non-applicant No.2. It may be noticed here that
Indra Devi is wife of Radheshyam, who is a son of Ramjilal
defendant No.1, it means judgment debtor, objector-Sarojani devi
is a wife of Suraj Narain (son of Ramjilal) defendant No.3, it
means judgment debtor, and objectors Hanuman & Mohan Lal
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have not shown their fundamental status of acquiring possession
over part of suit property.
10. The application under Order 21 Rule 97 CPC has resisted by
objectors and reply was filed. It appears in their separate replies
that all the objectors claimed their possession that of in their
independent right as owner taking a plea that suit property is part
of land of Khasra No.656, Village Namner, Gangapur City, which
had been acquired by the State Government vide notification
dated 20.12.1956 and therefore, possession of land was taken by
Collector, who has handed over the property at the disposal of UIT,
Gangapur City and since objectors were in old possession over
their respective portion, therefore, UIT, Gangapur City has
regularized their possession after receiving the nazarana and has
issued Pattas. All the objectors alleged that property of Khasra
No.656 is Nazrul land. The application under Order 21 Rule 97 CPC
has opposed on merits by taking such plea as also other
objections being barred by limitation and untenable. Learned
executing court put objections on trial and as many as seven
issues including issue of relief were framed:
Issue No.1, is in respect of the status of applicants as
appointed trustees in compliance of the judgment and decree
dated 16.12.1967 appointed by Additional District Judge,
Gangapur City vide order dated 12.02.1979;
Issue No.2, is in respect of the report of Court Nazir dated
30.11.1978, resisting him by the objectors to execute the
warrant for possession;
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Issues No.3 & 4, is in respect of objections of objectors in
application under Order 21 Rule 97 CPC being barred by
limitation;
Issue No.5, is in respect of defence taken by objectors to
oppose the application, alleging the suit property to be
acquired by the State Government vide notification dated
20.12.1956;
Issue No.6, is in respect of the capacity and status of
objectors to claim their possession over portion of the suit
property as owner, and
Issue No.7, is in respect of relief.
Opportunity to adduce evidence to both parties were
accorded and both parties adduced their evidence, oral and
documentary. One of the trustees Guab Chand has deposed his
evidence as AW-1. Statements of Court Nazir were recorded as
AW-2 and one witness of Nazir report dated 30.11.1978,
appeared as AW-3. In rebuttal, from the side of objectors,
Joharilal as NAW-1, Ramswaroop as NAW-2, Sarojni Sharma as
NAW-3 and Mohan lal as NAW-4 have appeared.
11. As far as issues No.3 & 4, pertaining to filing the application
under Order 22 Rule 97 CPC within limitation or not, are
concerned, both the issues were decided by a separate order
dated 24.07.1981 and objection of limitation was rejected and
application was held to be filed within limitation. Other issues no.
1, 2, 5, 6 & 7 have been decided on merits vide order impugned
dated 05.04.1997.
12. In the order dated 05.04.1997, learned executing court has
observed that applicants have been appointed as trustees of the
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trust property vide order dated 12.02.1969 by the Additional
District Judge, Gangapur City pursuant to directions of the High
Court in judgment and decree dated 16.12.1967. Report of Court
Nazir dated 30.11.1978 (Exhibit-2) in respect of creating
obstructions/resistance in execution of the warrant for possession
has been proved by Court Nazir Dayal Ram (AW-2) & Prahald
Chand, witness of report (AW-3).
13. In respect of issue No.5, pertaining to acquisition of the suit
property by the State Government vide notification dated
20.12.1956, it has been held that the suit property was exempted
from the acquisition, and its possession was never taken by the
Collector, being constructed property of trust and surrounded by
the pakka four boundaries, in view of the order of Collector dated
03.09.1961 (Exhibit-NAW3). In respect of issue No.6, regarding
possession and status of objectors as owner, it has been held that
the suit property is trust property and was not acquired by the
State Government, and objectors could not prove their
independent status having possession as owner over respective
portion of the trust property. Finally, objections of objectors were
turned down and application under Order 22 Rule 97 CPC has
been allowed vide impugned order dated 05.04.1997, providing
police assistance to applicants/trustees/decree holder to execute
warrant for possession in order to deliver the vacant possession of
trust property to the trustees and the same is under challenge in
all three appeals.
14. In all these appeals, objectors have raised a common
defence that suit property is part of a land of Khasra No.656 which
was acquired by the State Government vide notification dated
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20.12.1956 and the Collector had taken possession of the
acquired property and same had been entrusted to the UIT,
Gangapur City for disposal. Thus, the suit property has taken
character of a nazul property and the UIT, Gangapur City has
regularized possession of objectors. Appellant/Objector-Indra Devi
claimed that she is in possession of a patore, chowk and a WC,
within her own rights and her possession has been regularized by
the UIT, Gangapur City on 03.11.1970 after receiving
regularization charges. Appellants/Objectors Hanuman and Mohan
Lal claimed that they are in possession of Patore, tin shed portion
and open land of ward No.14, Gangapur City and their possession
has been regularized on 07.01.1992 as such they cannot be
dispossessed. Appellant/Objector Sarojani Devi claimed that she is
in possession over an area of 113 and 33 Sq. Yards and her
possession has been regularized. Learned counsel for appellants
have argued that the possession of appellants over their
respective portions, is in their own capacity as owner being
regularized by the UIT, Gangapur City and they are not protecting
their possession through the judgment debtors.
15. Advocate Mr. Siddharth Bapna, who is appearing in CFA
No.425/2014 for appellant, has raised an argument that when the
land of Khasra No.656 in Village Namner has been acquired by the
State Government vide notification dated 20.12.1956, de-
acquisition could have been declared only by way of an another
notification by the government by virtue of Section 48(1) of the
Land Acquisition Act, and the order of Collector dated 03.09.1961,
keeping properties of temples, mosques and places of worships
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where pakka constructions are there, out of acquisition has no
legal importance.
In support of his contentions, counsel has placed reliance on
following judgments:
Pimpri Chinchwad New Township Development
Authority Vs. Vishnudev Cooperative Housing Society
[(2018) 2 SCC 215];
Shanti Sports Club Vs. Union of India [(2009) 15 SCC
705];
Murari Vs. Union of India [(1997) 1 SCC 15];
State of Maharashtra Vs. Umashankar Rajabhau
[(1996) 1 SCC 299] &
Satendra Prasad Jain Vs. State of U.P. [(1993) 4 SCC
369]
16. During course of appeals, it appears that private trustees
appointed by the Additional District Judge, Gangapur City vide
order dated 12.02.1969, have passed away and appeals have
been contested by the SDM, Gangapur City, who is ex officio
nominated manager trustee.
17. Learned counsel appearing on behalf of Manger Trustee has
argued that appellants/objectors are in unauthorized possession
over the part of suit property, which has been held as trust
property. Vide notification dated 20.12.1956, properties situated
at Village Namner was acquired which has not concerned with the
suit properties belonging to the trust and further properties of
temples, mosques and other properties of such nature,
constructed properties were exempted from acquisition and
possession was never taken by the Collector, therefore,
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objectors/appellants are not entitled to protect their illegal and
unauthorized possession over the trust properties, taking resort of
the acquisition of the land of Khasra No.656. The regularization, if
any made by the UIT Gangapur City, the same does not confer
any independent title upon objectors as at first instance such
regularization of objectors is of post period to the judgment and
decree dated 16.12.1967 and secondly, they step in the shoes of
their predecessors, who are judgment debtors. Hence
appellants/objectors filed these appeals just to delay the
execution of warrant for possession and the same are devoid of
merits and deserve to be dismissed.
18. Heard & considered.
19. Here it may be noticed that order impugned dated
05.04.1997 has been passed by the Court of Additional District
Judge, Gangapur City on the application under Order 21 Rule 97
CPC, and all questions arising between the parties have been
determined following the procedure of Rule 101, after framing
issues and recording evidence of both parties and impugned order
is a deemed decree by virtue of Rule 103 of Order 21 CPC, hence
amenable to be challenged by way of appeal, before the High
Court. The appeal filed by objector Smt. Indra Devi has initially
registered as Civil Misc. Case No.364/1997, but later on, after
filing application, the same was converted vide order dated
11.08.2014 to be registered as civil first appeal, hence has been
registered as civil first appeal No.425/2014. Other two appeals are
registered as civil misc. appeals. Though objector Indra Devi filed
appeal in the nature of civil (execution) first appeal. In CMA
No.399/1997, an application has been filed to convert and register
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it as civil first appeal, but this Court is of the opinion that since in
all the these appeals, impugned order under challenge is common
and same that is dated 05.04.1997 allowing application under
Order 21 Rule 97 CPC, therefore, this Court shall consider all these
appeals within the scope of appeal, as permissible within scope of
Order 21 Rule 103 CPC, irrespective of nomenclature of appeals as
civil first appeal or civil misc. appeals.
20. On merits, at the outset, this Court finds that there is no
dispute that in the judgment and decree dated 16.12.1967,
passed by Single Bench of Rajasthan High Court in regular first
appeal No.94/1960 the suit property has been held as trust
property and earlier trustee Ramjilal (defendant No.1) has passed
away, Suraj Narain (defendant No.3) and Sunderlal (defendant
No.4) were removed as trustees of trust property and District
Judge was directed to appoint new trustees to maintain and look
after the trust property and a clear right was given to the newly
appointed trustees to take possession of trust property. This
judgment and decree dated 16.12.1967 has been affirmed by the
Division Bench while dismissing DB Civil Special Appeal No.4/5 of
1968 vide judgment and decree dated 25.01.1972. This is not in
dispute that in compliance of the judgment and decree dated
16.12.1967, the Additional District Judge, Gangapur City vide
Order dated 12.02.1969 has appointed new seven trustees
including the SDM of Gangapur City as Chief Manager Trustee. As
far as findings recorded by the executing court in respect of issues
No.1, 2, 3 & 4 vide impugned order dated 05.04.1997 and order
dated 24.07.1981 are concerned, same have not been questioned
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during course of arguments and therefore, only challenge to the
findings of issues No.5 & 6 falls for consideration in these appeals.
21. From the record it appears that in respect of suit property of
trust, the civil suit was laid way back on 05.10.1953 for seeking
removal of the then trustees as much as for declaration of gift
deed executed by trustee Ramjilal (defendant No.1) in favour of
his wife as null and void and for appointment of new trustees to
manage and use the suit property for the purpose of trust, was
initially dismissed by the trial court vide judgment dated
04.03.1960 and thereagainst, S.B. Civil Regular Appeal
No.94/1960 titled Mangilal Vs. Durga Devi was instituted before
the High Court. The first appeal was allowed and while setting
aside the judgment and decree of trial court, suit was decreed
vide judgment and decree dated 16.12.1967 and as reflect from
the judgment that the trustee Ramjilal has already passed away,
other trustees defendant No.2 Suraj Narain, trustee Sundarlal
were ordered to be removed and new trustees were ordered to be
appointed by the District Judge as well as defendants were
directed to deliver the possession of suit property to the newly
appointed trustees. The judgment and decree dated 16.12.1967
has attained finality after affirming by the Division Bench vide
judgment and decree dated 25.01.1972. It is not in dispute that
as far as appointment of new trustees is concerned, in compliance
thereof, new trustees have been appointed by the Additional
District Judge, Gangapur City vide order dated 12.02.1969.
Among the newly appointed trustees, SDM, Gangapur City is ex
officio manager trustee who has been entrusted to take charge of
the trust property and manage the same in the interest of public
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as well as for the residence of travelers and sanyasis. The
execution of judgment and decree dated 16.12.1967, to the
extent of removal of objectors (present appellants herein) is
pending. It is also clear from the record that previously objections
as to non-appointment of new trustees by the District Judge and
appointment by the Additional District Judge, objections in respect
of non-registration of the trust as is required under Section 29 of
the Rajasthan Public Trust Act, 1959 and non impleadment of
Commissioner Devsthan as party in the present suit in view of
Section 44 of the Rajasthan Public Trust Act, 1959 have already
been turned down on merits by the Rajasthan High Court, in civil
revision petition No.335/1983 titled Sarojni Devi Vs. Gulab Chand
vide order dated 31st August, 1987.
22. Appellants-objectors, while opposing the application under
Order 21 Rule 97 CPC moved by the newly appointed trustees to
seek police assistance in order to take possession of the suit
property, have taken a plea that the suit property has been
acquired by the State Government vide notification dated
20.12.1956 and thereafter, Collector has taken possession and
handed over the property for disposal at the hands of Urban
Improvement Trust, Gangapur City. The UIT, thereafter has
acknowledged the old possession of the objectors and after
receiving the nazarana shulk, regularized their possession by
issuing the pattas. Objector-appellant Indra Devi claimed that
regularization of her possession over patore, chowk and WC on
03.11.1970, appellant-objectors Hanuman and Mohan Lal claimed
to regularize their possession over tin shaded and open land by
UIT on 07.01.1992 and appellant-objector Sarojni Devi also
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claimed regularization of her possession over an area of 113 and
33 Sq. yards in her land out of suit property after decreeing suit
vide judgment dated 16.12.1967. The suit was instituted way back
on 05.10.1953 and if by way of notification dated 20.12.1956 of
the State Government, suit property would have been acquired
and possession had been taken by the Collector in pursuance of
acquisition, there was no occasion to contest suit by the then
trustees defendants. The suit was dismissed on merits by the trial
court vide judgment dated 04.03.1960 and thereagainst plaintiff
filed first appeal No.94/1960. At the stage of first appeal, suit was
decreed vide judgment and decree dated 16.12.1967, defendants
No.2 and 3, challenged the judgment and decree date 16.12.1967
by way of two separate special appeals before the Division Bench
and both appeals were decided on merits vide common judgment
dated 25.01.1972, affirming the judgment and decree dated
16.12.1967. From perusal of judgment and decree dated
16.12.1967 as well as judgment dated 25.01.1972, passed by the
hon'ble Single Bench and Division Bench of High Court, it appears
that there is no whisper that the suit property was at any point of
time came under acquisition by the State Government vide
notification dated 20.12.1956. Therefore, this Court assumes that
defendants never took such defence/plea that the suit property
was acquired during course of suit, vide notification dated
20.12.1956 and such plea was neither taken at the stage of first
appeal nor at the stage of special appeal before the Division Bench
and has been raised by the legal heirs of defendants, to oppose
the execution of warrant for possession in execution of the
judgment and decree dated 16.12.1967.
(18 of 21) [CFA-425/2014]
23. It is not in dispute that as far as appellant-objector Indra
Devi is concerned, her husband Radheshyam was party in the suit
being son of the original trustee Ramjilal (defendant No.1) and
after his death, Radheshyam was impleaded. As far as appellant-
objector Sarojni Devi is concerned, her husband Suraj Narain was
original defendant No.3 in the suit and he was removed from the
trustee and directed to deliver the possession vide judgment and
decdree dated 16.12.1967. As far as appellants-objectors
Hanuman and Mohan Lal are concerned they could not show their
fundamental source of acquiring the possession over the portion of
suit property. The present suit has already been instituted on
05.10.1953. It is stated in the suit that original trustee Ramjilal
(defendant No.1), in order to grab the property of trust, executed
gift deed in favour of his wife and transferred possession of
portion of suit property to some persons. In the final judgment
and decree dated 16.12.1967 entire suit property has been held
property of trust and the gift deed has been declared as null and
void. From the record, it appears that few private persons claimed
their independent possession over the part of suit property and
filed suit for declaration bearing No.5/1971. This suit was rejected
holding that persons cannot claim any right on the property of
trust in view of the judgment and decree dated 16.12.1967.
Having appreciate all such factual aspects, the executing court in
the order dated 05.04.1997 has recorded a fact finding that the
objectors/appellants do not have any possession over the part of
suit property in the capacity of their own as owner, but have
stepped in the shoe of judgment debtors. It may also be noticed
that the objectors appellants, before opposing the application
(19 of 21) [CFA-425/2014]
under Order 21 Rule 97 CPC, instituted their objections
independently taking the same plea of acquisition of the suit
property but their objections were dismissed by the executing
court as not maintainable vide order dated 01.02.1978. It has
been stated that the order dated 01.02.1978 was challenged by
the objectors by filing separate several revision petitions before
the High Court, but either of the counsel is not in a position to
state the final fate of the revision petitions.
24. As discussed hereinabove, the only basis of the objectors
appellants to raise the objection that the suit property was
acquired by the State Government vide notification dated
20.12.1956, is that the suit property is part of land of Khasra
No.656, Village Namner and the same was acquired vide
notification date 20.12.1956. First of all, no such defence of
acquiring the suit property by the State Government was taken
during course of trial or at the stage of first appeal or at the stage
of special appeals before Division Bench and secondly, there is no
sufficient evidence on record to prove that the suit property which
has been held property of trust was acquired by the state
government and possession was taken by the Collector, pursuance
to the notification dated 20.12.1956. Rather on the contrary, from
the order/letter of Collector dated 03.09.1961, it is apparent that
the properties of temple, mosques and religious purposes having
construction were exempted from acquisition and their possession
was never taken by the government. The appellants objectors
could not substantiate their plea of acquisition of the suit property
by the State Government by adducing sufficient evidence. Plea of
acquisition of the suit property of trust has never taken during
(20 of 21) [CFA-425/2014]
trial or in first appeal and at the stage of special appeals before
the Division Bench, and has been taken first time during execution
proceedings. If the suit property was acquired by the Government,
then its compensation should have been assessed and paid, but
there is no evidence that any compensation was determined and
paid by the State Government against the suit property.
Therefore, resistance by the objectors/appellants to the extent of
warrant for possession on the plea of acquisition of suit property is
baseless and unfounded. Even if the possession of the objector
appellant over part of suit property has been regularized by the
UIT, Gangapur City, during course of present lis, more particularly
after decreeing the present suit, the same is of no consequence
and do not affect the merits of judgment dated 16.12.1967. In
Such view of facts, the executing court has rightly observed that
suit property which is of trust property was never acquired by the
State Government vide notification dated 20.12.1956 and even if
it is assumed that over part of Khasra No.656, if any acquisition
was made then the suit property which comprises a bagichi, a
dharmshala, a well and chatri of idol Mahadev Ji, which is
surrounded by pakka boundary wall as shown in the site map
(Exhibit X) appended with the plaint, the same was exempted
from the acquisition and possession was never taken by the
Collector, as stated in the order of Collector dated 03.09.1961. For
such reasons, arguments raised by the counsel for appellants that
once the property was acquired, the same could not have been
de-acquisized without following the process under Section 48(1) of
the Land Acquisition Act, does not attracted in the facts of present
case.
(21 of 21) [CFA-425/2014]
25. For discussions made hereinabove, this Court finds that the
executing court has not committed any illegality and perversity in
deciding issues No.5 and 6 against appellants-objectors and this
Court affirms the fact findings of the executing court recorded in
the order impugned dated 05.04.1997.
26. As a result, all three instant appeals are devoid of merits and
the same are hereby dismissed. There is no order as to costs.
27. All pending application(s), if any, also stand(s) disposed of.
28. Record of court below be sent back.
(SUDESH BANSAL),J
SACHIN
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