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2015 DIGILAW 1688 (HP)

Mahli Devi v. Jagdish Chand

2015-11-18

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This petition is instituted against the order dated 20.7.2007 rendered by the Civil Judge (Senior Division), Palampur in C.M.A. No. 192/2003. 2. “Key facts” necessary for the adjudication of this petition are that the petitioners-plaintiffs-decree holders (hereinafter referred to as the “decree holders” for convenience sake) had instituted a suit bearing Civil Suit No.3/95, titled as Mahli Devi and another Vs. Jagdish Chand. The suit was partly decreed on 16.12.1999. The decree holders were declared to be owners in possession of land comprising Khasra Nos. 313, 332, 311, 312, 333, 318, 331, 314 and 315 measuring 0-16-11 alongwith other co-sharers and the entry showing the judgment debtor as “Davedaar Bai” or vendee over Khasra Nos. 314 and 315 was declared wrong and illegal. Defendant was restrained from interfering over the suit land. Decree holders filed a petition under order 21 (1) (5) of the Code of Civil Procedure for the execution of the judgment and decree dated 16.12.1999 rendered in Civil Suit No. 3/95. According to the averments made in the petition, judgment debtor took forcible possession of the suit property on 15.8.2003 in the absence of decree holders and they were refusing to hand over the possession of the same. 3. Judgment debtor contested the petition. Judgment Debtor admitted that judgment and decree dated 16.12.1999 was passed against him. It was also admitted that the appeal filed against the judgment and decree dated 16.12.1999 was dismissed by the appellate Court. According to the Judgment Debtor, even prior to filing of civil suit No. 3/1995, the house of judgment debtor comprising of five rooms was in existence. 4. Issues were framed by the Executing Court on 12.8.2005. The executing Court dismissed the petition on 20.7.2007. Hence, the present petition. 5. Mr. Sanjay Jaswal, learned counsel for the petitioner has vehemently argued that the Court below has not properly appreciated oral as well as documentary evidence led by the parties. 6. Mr. Y.P. Sood has supported the impugned order dated 20.7.2007. 7. I have heard the learned counsel for the parties and have gone through the order dated 20.7.2007 carefully. 8. Mahli Devi has appeared as PW-1. She has deposed that decree was passed in her favour and the house over the same was constructed by her husband. About three years back, judgment debtor took forcible possession of the suit house. 7. I have heard the learned counsel for the parties and have gone through the order dated 20.7.2007 carefully. 8. Mahli Devi has appeared as PW-1. She has deposed that decree was passed in her favour and the house over the same was constructed by her husband. About three years back, judgment debtor took forcible possession of the suit house. AW-2 Hirda Ram has corroborated the statement of AW-1 Mahli Devi. According to him, the Judgment Debtor has taken forcible possession of the suit house. 9. AW-3 Kartar Chand has proved the site plan Ext. AW3/A. In his cross-examination, he has admitted that he did not visit the spot. 10. Judgment Debtor has appeared as RW-1. He has deposed that the old room of the house of Shilo was lying locked. He has constructed the house consisting of 12 rooms about 44 years back and he has not taken possession of the suit house on 15.8.2003. RW-2 Sant Ram has supported the version of RW-1. He has deposed that the house of Judgment Debtor was existing for the last more than 42-43 years back. RW-3 Hari Chand has deposed that the house of Mahli Devi was under lock. The Judgment Debtor has not taken the forcible possession of the house on 15.8.2003. 11. The copy of the decree-sheet dated 16.12.1999 is Ext. A-1. Ext. A-2 is the copy of missal haquiat bandobast jadid, Ext. A-3 is the copy of Jamabandi for the year 2000-2001, Ext. AW-3/A is site plan. Learned Sub Judge 1st Class (1) Palampur had framed issue No. 4 as under: “Whether the plaintiff is entitled to the relief of possession qua the suit land comprising of Khasra No. 314 and 315, as alleged”? OPP 12. Case set out by the decree holders from the very beginning was that the judgment debtor has taken forcible possession of the land comprised in Khasra Nos. 314 and 315 in the year 1992 and thereafter constructed a shop on 4.4.1995. The decree holders have failed to prove that after getting the shops of the judgment debtor demolished from the suit property situated over Khasra No. 314 and 315, they have constructed the house and thereafter the judgment debtor took forcible possession of the same. Ext. AW-3/A shows 6 shops in dispute. The decree holders have failed to prove that after getting the shops of the judgment debtor demolished from the suit property situated over Khasra No. 314 and 315, they have constructed the house and thereafter the judgment debtor took forcible possession of the same. Ext. AW-3/A shows 6 shops in dispute. AW-1 Mahli Devi has deposed that her house was in possession of the Judgment Debtor and the same was not lying locked on the spot. However, AW-2 Hirda Ram has deposed that the old house of Mahli Devi was lying locked. Thus, the Judgment Debtor was not in possession of the house of decree holders. The decree holder has admitted that the shops were constructed in the year 1995 by the Judgment Debtor. Thus, it cannot be said that Judgment Debtor has willfully disobeyed the decree dated 16.12.1999. 13. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed, so also the pending application(s), if any. No costs.