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2008 DIGILAW 430 (PAT)

Paramjeet Kaur v. Radha Chand Lal Chaudhary

2008-02-28

S.N.HUSSAIN

body2008
Judgment 1. This civil revision has been filed by the petitioners against order dated 29.6.2004 by which the learned Munsif 1, Munger dismissed Misc. Case No. 1/8 of 2004 filed by him under the provision of Order XXI, Rule 99 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) in Execution Case No. 13 of 1998. 2. This matter arises out of Eviction Suit No. 23 of 1995 which was filed by plaintiff-opposite party no. 1 for eviction of his tenant-defendant-opposite party no. 4 on the grounds of default in payment of rent by the said defendant and bona fide personal requirement of the plaintiff with respect to the said property and the said suit was decreed ex parte on 24.4.1996, which was never challenged. Thereafter plaintiff-opposite party no. 1 filed Execution Case No. 13 of 1998 for execution of the decree in which the petitioner filed Misc. Case No. 05 of 2000 under the provision of Order XXI, Rule 97 of the Code on the basis of an agreement for sale of the suit property dated 13.10.1998 between the petitioner and the brother of the plaintiff but the said petition was rejected by the learned court below vide order dated 10.8.2001 (Annexure-6). 3. It transpires that the said order was challenged by the petitioner in Civil Revision No. 1638 of 2001, but during the pendency of that case, the judgment debtor, namely opposite party no. 4 handed over the possession of the suit premises to the decree holder, namely opposite party no. 1 and delivery of possession was duly effected through the process of the court on 14.12.2003 (Annexure-10). In the said circumstances C.R. No. 1638 of 2001 became infructuous and was dismissed as such by this court on 4.3.2004 (Annexure-12) at the instance of the petitioner himself. 4. It was only thereafter that the petitioner filed the instant Misc. Case No. 1/8 of 2004 under the provisions of Order XXI, Rule 99 of the Code alleging his dispossession by the plaintiff-decree holder (O.P. No. 1) from the suit property. She claimed that on the basis of agreement for sale (Mahadnama) dated 13.10.1998 executed by the brother of the plaintiff in favour of the petitioner, she filed Title Suit No. 28 of 1999, which was decreed on compromise between them on 2.2.2000 (Annexure-3). She claimed that on the basis of agreement for sale (Mahadnama) dated 13.10.1998 executed by the brother of the plaintiff in favour of the petitioner, she filed Title Suit No. 28 of 1999, which was decreed on compromise between them on 2.2.2000 (Annexure-3). She also claimed that a suit for partition bearing T.S. No. 163 of 1990 was also going on between opposite party no. 1 and his co-sharers with respect to the ancestral properties including the premises involved in the eviction suit and hence after the decree passed in T.S. No. 28 of 1999 for specific performance of agreement for sale, the petitioner filed a petition under Order I, Rule 10 of the Code in the partition suit bearing T.S. No. 163 of 1990 which was allowed by that court on 8.5.2002 (Annexure-5) and she was impleaded as a party to that suit. 5. From the averments of the parties and the materials on record, it is quite apparent that the agreement for sale (Mahadnama) claimed by the petitioner did not confer any title or possession upon him, nor there is anything to show either in the said agreement for sale or in the compromise decree prepared in the suit for specific performance of agreement (T.S. No. 28 of 1999) that possession was ever claimed to have been delivered to the petitioner by her proposed vendor. Furthermore O.P. No. 1 was not party to the said suit, which was decreed on compromise in a hasty manner within one year. Moreover, neither any sale deed had been executed as per the said compromise decree nor any delivery of possession had been effected in favour of the petitioner on its basis. Hence she had clearly no title or possession over the suit premises either at the time of judgment and decree dated 24.4.1996 in the eviction suit or during the pendency of the execution case or even at the time of passing of the impugned order. 6. It is also quite apparent that even according to the claim of the petitioner the suit premises alongwith other properties are joint family properties in which O.P. No. 1 and his brother, namely the proposed vendor of the petitioner had shares and a suit (T.S. No. 163 of 1990) for partition thereof is pending in which the petitioner has also been subsequently added on the basis of the decree passed. in her favour in the suit (T.S. No. 28 of 1999) for specific performance of agreement for sale executed by the brother of O.P. No. 1. The said partition suit is pending and even the shares of the parties have not been decided and hence there was no occasion for the brother of O.P. No. 1 to transfer any specific portion to the petitioner, who could get a share in the partition suit only if it is found in the suit that her vendor had joint title and possession in the suit properties and had validly transferred his premises or share to her. 7. The defendant (O.P. No. 4) of the eviction suit specifically admitted in the execution case that he had delivered possession of the suit premises to the plaintiff (O.P. 1) as per the decree passed in the eviction suit and the report of the Nazir supported his contention and also showed that the petitioner was not in possession of the suit premises. Furthermore earlier petitioner had filed a petition bearing Misc. Case No. 05 of 2000 in Ex. Case No. 13 of 1998 under the provision of Order XXI, Rule 97 of the Code claiming to be in possession of the suit premises and resisting/obstructing the process of delivery of possession in favour of the plaintiff, but the said petition was dismissed by the learned court below on 10.8.2001 as the petitioner was never found to be in possession of the suit premises and the said order was affirmed up to the High Court. In the said circumstances there was no occasion for the learned court below to entertain the second petition bearing Misc. Case No. 1/8 of 2004 filed by the petitioner under the provision of Order XXI, Rule 99 of the Code in which she had claimed that she was in possession and had been dispossessed by the decree-holder, namely O.P. No. 1. 8. Hence from the respective claims of the parties as well as from the facts and circumstances of the case and the materials on record it is quite clear that the learned court below after considering the matter and after adjudicating upon the issue involved rightly rejected the petition (Misc. Case No. 1/8 of 2004) of the petitioner by the impugned order dated 29.6.2004 and that there is no illegality or jurisdictional error in the said order. Case No. 1/8 of 2004) of the petitioner by the impugned order dated 29.6.2004 and that there is no illegality or jurisdictional error in the said order. Accordingly this civil revision is dismissed.