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2010 DIGILAW 1061 (ALL)

Mohan Lal v. Shree Shivji Virajman Mandir

2010-03-31

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard learned counsel for the petitioner and Sri Ranjeet Saxena, learned counsel for the caveator. 2. This petition is directed against an order dated 19th March 2010 by which an application for dismissing the Execution case no.12 of 2006 on the ground that the decree stood satisfied, has been rejected. 3. It appears that the petitioner was in possession of a shop belonging to Shree Shivji Virajman Mandir, Bagh Baij Nath situated at Agra. The Trust having found that the petitioner was in unauthorised occupation after the earlier tenant had left, filed application under Sections 16 and 21 of the Act for release of the disputed accommodation for opening a free Ayurvedic Dispensary in the disputed premises, which was allowed vide order and judgment dated 18th November 2006 holding that the petitioner was an unauthorised occupant. The petitioner thereafter filed an appeal which was also dismissed by reasoned order upholding the findings of the Prescribed Authority vide order dated 20th December 2006. 4. The petitioner challenged the said order in Writ Petition No.42492 of 2008 and obtained an interim order. However, it appears that the Managing Trustee and the petitioner filed a compromise application before this Court stating that the Trust does not want to evict the petitioner and it was settled that the rent would be increased to Rs.1500/- p.m. etc. This Court dismissed the writ petition on statement of the parties on Ist of December 2009 whereafter the application was filed by the petitioner in the execution case where the compromise application itself has been rejected. 5. It is urged on behalf of the petitioner that once the parties had entered into compromise, the executing court could not proceed further. 6. Assuming that there was a compromise between the unauthorised occupant, the petitioner, and one of the several co-landlords, but? such compromise could not go against the mandatory provisions of the Act. The finding that the petitioner was in unauthorised occupation of the? premises which is covered by the Act. No person is entitled to take possession nor any landlord is entitled to give possession to any person, subject to the exception in the Act, as a tenant except under? an order of allotment. Therefore, it is apparent that the compromise is hit by Sections 11, 13 and 16 of the Act. premises which is covered by the Act. No person is entitled to take possession nor any landlord is entitled to give possession to any person, subject to the exception in the Act, as a tenant except under? an order of allotment. Therefore, it is apparent that the compromise is hit by Sections 11, 13 and 16 of the Act. Apart from that, the compromise was never verified by the Prescribed Authority and therefore, would not bind the other co-landlords and since there is no division amongst them, each has right of possession over the entire property. The compromise at best could lead to the conclusion that the co-landlord which has compromised with the petitioner would not be entitled to possession in execution of the release order. Therefore, the argument of the learned counsel for the petitioner is bound to be rejected. 7. Lastly it is urged on behalf of the petitioner that it should be left open to the petitioner to approach the writ Court for recalling of the order whereby this petition has been dismissed. 8. It is always open to the petitioner to approach the Court in the earlier writ petition itself for recall of the order and seek a decision on merits. 9. Subject to the aforesaid liberty, no case for interference is made out. Rejected.