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2010 DIGILAW 1215 (ALL)

Mangla Yadav v. IVth A. D. J.

2010-04-15

PRAKASH KRISHNA

body2010
JUDGMENT 1. The present writ petition arises out of execution proceedings whereby the two Courts below have rejected the application filed by the petitioner for delivery of possession in suit for partition. 2. It appears that the petitioner filed suit No.54 of 1977 in the Court of Munsif City, Azamgarh for partition of his half share in the property in question on the ground that the property is ancestral property. The said suit after contest was decreed in part by the trial Court on 11th of May, 1981. The suit was dismissed in respect of one piece of the property on the finding that the said property was not proved to be ancestral property and was the self acquired property of the defendants. 3. The decree was challenged by way of appeal being Civil Appeal No.413 of 1981 by the defendants who are respondents herein before the First Appellate Court who by its judgment and decree dated 21st of October, 1983 allowed the appeal in part. It modified the decree of the trial Court by providing that the Pucca constructions standing over the land in suit shall be given to the appellants as their own in the final decree. The counsel for the parties jointly agreed that the said judgment has attained finality as it has not been challenged any further by either of them. 4. Consequent upon the finality of the preliminary decree, steps were taken for preparation of final decree. In the proceedings of final decree, Amin was appointed who carved out Quras. The said Quras were confirmed by the Executing Court namely the trial Court by its judgment and decree dated 22.5.1989. The said decree was subject matter of challenge in appeal being Appeal No.291 of 1989 : Sripat Yadav and others Vs. Mangla. The said appeal has been dismissed by the judgment and decree dated 11.2.1993. It has been informed that against the said judgment and decree a second appeal has been filed in this Court being second appeal No.483 of 1993 and the second appeal is still pending. In the second appeal, on the stay application the following order has been passed:- "Issue notice, returnable at an early date. It has been informed that against the said judgment and decree a second appeal has been filed in this Court being second appeal No.483 of 1993 and the second appeal is still pending. In the second appeal, on the stay application the following order has been passed:- "Issue notice, returnable at an early date. The partition proceedings and finalization of actual delivery of possession may go on in respect of the partition which was allowed by the Appellate Court vide its order dated 21st October, 1983 unless this judgment has been set aside by the Appellate Court". 5. The petitioner decree holder applied for delivery of possession of the Qura allotted in his share. The said application having been dismissed by the two Courts below by the impugned orders, the present writ petition has been filed. 6. Heard the learned counsel for the parties and perused the record. It appears that the Courts below have refused to order the delivery of possession in view of the stay order passed by this Court on the stay application in the aforestated second appeal No.438 of 1993. The said order has already been reproduced above. A bare perusal of this order does not show that this Court has stayed the actual delivery of possession. On the contrary, this Court has made it clear that the partition proceeding and finalization of actual delivery of possession may go on in respect of the partition which was allowed by the Appellate Court vide order dated 21st of October, 1983 unless this judgment has been set aside by the Appellate Court. Indisputably, the judgment dated 21st of October, 1983 has attained finality between the parties and it is not the case of respondents herein that in any manner the said judgment has been varied or modified. 7. As a matter of fact, the above interim order dated 23rd of March, 1993 does not come in the way of the plaintiff petitioner to get the possession of the Quras allotted in his lot. 8. Apart from the above, when share of the parties have been finally determined and final decree has been prepared by carving out the Quras and objections having been rejected by the two Courts below and there being no stay order for staying the delivery of possession, the Courts below have misdirected themselves in rejecting the application filed by the petitioner for delivery of possession. They have proceeded to reject the application filed by the petitioner on misconstruction of the operative portion of the judgment dated 21st of October, 1983. For the sake of convenience the operative portion of the judgment dated 21st of October, 1983 is reproduced below:- "The appeal is partly allowed and partly dismissed. Decree of the Court below is modified to the extent that Pakka constructions over the land in suit shall be given to the appellants as their own in the final decree. No orders for costs." 9. The purport of the above operative portion is only this much that the private respondents shall get included in his Quras the Pakka constructions. It does not mean that they will also get the land beneath the constructions. In any view of the matter, since the Quras have been carved out finally by the two Courts below and they have been approved by the Courts below, the Executing Courts were not justified in rejecting the application filed by the petitioner for delivery of possession. No other point was pressed. 10. In the result, the writ petition succeeds and is allowed. Both the impugned orders dated 8th of November, 1994 and 8th of December, 1993 passed by the respondent nos. 1 and 2 respectively are hereby set aside and the applications filed by the petitioner for delivery of possession in respect of his Quras stands allowed with cost of Rs.5,000/-. 11. The Executive Court shall take immediate steps to deliver the possession of the Qura allotted to the petitioner forthwith preferably within a period of three months from the date of production of certified copy of this order.