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Rajasthan High Court · body

2007 DIGILAW 718 (RAJ)

Shanker Lal Prem Chand and Sons v. Tej Karan

2007-04-06

GUMAN SINGH

body2007
JUDGMENT 1. - Counsel for the appellants assailed the judgment of the First Appellate Court as well as the order of The trial court passed on objection petition filed by the appellants under Order 21, Rules 97 to 101 C.PC: in Execution Case No. 5/1996, whereby the objection petition of the appellants was dismissed. 2. According to the learned counsel, the two courts below have failed to appreciate the grounds of objection petition in the proper legal perspective. He argued that from the evidence led on record it was proved that he had independent title to the suit premises as he had purchased the shop from one Gulab Chand and was in possession and as such, he can not be excluded through a decree to which he was not a party. He placed reliance on H. Seshadri v. K.R. Natarajan and another, 2003 (1) WLC (SC) Civil 658 : (2003) 10 SCC 449 , Laxmikant and others v. Satyawan and others, AIR 1996 SC 2052 , Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 on the point that stranger can get his claim adjudicated even prior to losing possession to decree-holder. 3. Per contra, counsel for the respondents has argued that the two courts below have given a concurrent finding of fact that the appellant is real brother of Gopal who was party in the original suit and after the suit of the respondents was decreed, Gopal filed an objection petition under Section 47 of the Civil Procedure Code, which was dismissed and thereafter at his behest this petition through his younger brother has been filed. Therefore, the findings of two courts below cannot be faulted and the appeal of the appellants is liable to be dismissed in limine at the admission stage as there being no substantial question of law. 4. In view of the aforesaid rival contentions of the parties, I have gone through the order passed by the Executing Court as well as Appellate Court and have also perused the record. 5. Both the courts below have given a concurrent finding that the appellants have failed to prove their possession over the disputed shop and they were found to be resisting the execution at the behest of Gopal, his real brother, who happened to be a party to the suit in which the decree was passed. 5. Both the courts below have given a concurrent finding that the appellants have failed to prove their possession over the disputed shop and they were found to be resisting the execution at the behest of Gopal, his real brother, who happened to be a party to the suit in which the decree was passed. The First Appellate Court has discussed the evidence led by the appellant in his objection petition in detail and found that the real brother of the appellant Gopal has been the party to the suit and after passing of the decree in that suit against him along with others, he had gone in appeal and after the dismissal of appeal, he had filed an objection petition under Section 47 of the Civil Procedure Code, that too was dismissed. It has also come on record that the appellant. failed to disclose the date of his coming into possession of the suit premises and hence he filed an application under Order 6 Rule 17 C.P.C. but the same was dismissed by the Court. It has also come on record that in his cross-examination the appellant could not disclose as to who is owner of the suit premises and he could not explain under what capacity Gulab Chand passed on the possession of the shop to him. Krishna Murari A.W. 3 is the son of Gulab Chand and he has deposed that the disputed suit premises were lying vacant for last 14-15 years and the appellant was given key of the shop by his father but he had no knowledge about any writing about it in favour of the appellants. It has also come on record that Gulab Chand is a relative of the appellant. From the evidence on record it is clear that the appellant's brother Gopal has been a contestant to the suit premises through out ever since the suit was brought for ejectment of the suit premises. But the appellant has denied to have any knowledge about it though he has admitted that he had cordial relations with his brother and he used to sit with his brother, talk about mutual well being. But the appellant has denied to have any knowledge about it though he has admitted that he had cordial relations with his brother and he used to sit with his brother, talk about mutual well being. In view of evidence on record, the two courts below have given a concurrent finding of fact that the appellant Prem Chand alias Prem Bihari had no independent right to the suit premises but has resisted the execution at the behest of his brother Gopal. 6. I do not find any infirmity or illegality in the findings arrived at by the first appellate court. Therefore, this second appeal is liable to be dismissed and the same is dismissed in limine.Appeal Dismissed. *******