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2015 DIGILAW 1770 (RAJ)

Salim Khan v. Jubaida Begum

2015-10-08

BELA M.TRIVEDI

body2015
JUDGMENT 1. - This is the second round of litigation filed by the petitioner/judgment debtor/objector, after having failed in the first round, right up to Supreme Court. 2. The petitioner has filed the present petition challenging the order dated 22/1/2014 passed by the District and Sessions Judge, Jaipur Metropolitan (hereinafter referred to as 'the Executing Court') in Civil Misc. Objection Petition No.3862 of 2012, whereby the Executing Court has dismissed the objection petition filed by the petitioner under Section 47 of CPC. 3. The short facts, giving rise to the present petition, are that the respondent No.1, who happens to be the sister of the petitioner, had submitted a dispute before the Arbitrator under Section 75 of the Rajasthan Cooperative Societies Act, 1965 (hereinafter referred to as 'the said Act'), seeking declaration and permanent injunction alleging inter-alia that one plot No.1 ad-measuring 540 sq. yards was purchased by her and her brother i.e. the petitioner jointly, which was subsequently divided into two parts by the respondent No.2-Society. The Plot No.1A ad-measuring 240 sq. yard was allotted to her and the plot No.1 ad-measuring 300 sq. yard was allotted to the petitioner, and accordingly both the parties were in possession of their respective plots. It was alleged by the respondent No.1 that the petitioner was claiming himself to be the owner of plot No.1A which was allotted to her for raising construction of shops, and therefore the declaration and injunction was sought. The said suit filed by the respondent No.1 was resisted by the petitioner by filing the reply before the Arbitrator. The Arbitrator vide its award dated 10/9/2003 dismissed the said suit by holding that there was no plot like plot No.1A, and further holding that the petitioner was the owner of the plot No.1. Being aggrieved by the said order, the respondent No.1 had preferred an appeal before the Rajasthan State Cooperative Tribunal which was registered as Appeal No.52/2003. The said appeal was allowed by the said Tribunal vide the judgment and order dated 29/12/2011 by declaring that the respondent No.1 was the owner of the plot No.1A ad-measuring 240 sq. yards, and the petitioner was the owner of plot No.1A situated in the northern side. It was further ordered that the respondent No.1 was entitled to the possession of the plot ad-measuring 240 sq. yards. yards, and the petitioner was the owner of plot No.1A situated in the northern side. It was further ordered that the respondent No.1 was entitled to the possession of the plot ad-measuring 240 sq. yards. The petitioner being aggrieved by the said order of Tribunal had preferred the writ petition being No.986/2012, which was dismissed with cost of Rs.25,000/- vide the order dated 12/9/2012. The petitioner therefore filed the intra-court appeal being D.B. Civil Special Appeal (W) No.1253/2012 before the Division Bench, which came to be dismissed vide the order dated 8/10/2012. The petitioner thereafter filed the SLP being No.1192 of 2013, which also came to be dismissed in limine vide the order dated 24/1/2013. The respondent No.1 thereafter having filed the execution petition before the Executing Court, the petitioner had filed the objection petition under Section 47 of CPC raising the objection inter-alia that the decree passed by the Tribunal was without jurisdiction, and therefore nullity. The said objection petition came to be dismissed by the Executing Court vide the impugned order dated 22/1/2014, against which the present revision petition under Section 115 of CPC has been filed by the petitioner. 4. It is sought to be submitted by the learned counsel Mr. O.P. Mishra for the petitioner that the respondent No.1 had filed the suit before the arbitrator seeking declaration and permanent injunction, only and not for possession of the suit property, and therefore the execution petition seeking possession of the property was not maintainable. Taking the Court to the various provisions of the said Act, he submitted that the dispute raised by the respondent No.1 before the Arbitrator being outside the purview of Section 75 of the said Act, (now Section 58 of the New Act of 2001), the order of Tribunal sought to be executed was without jurisdiction, and therefore nullity. He has relied upon the decision of Apex Court in case of Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350 to submit that the jurisdiction has to be decided from the averments made in the plaint. He has also relied upon decision of Apex Court in case of State of M.P. v. Mangilal Sharma, (1998) 2 SCC 510 to submit that if the relief of declaration only has been sought and is granted in the suit, the execution proceedings for consequential relief cannot be filed. He has also relied upon decision of Apex Court in case of State of M.P. v. Mangilal Sharma, (1998) 2 SCC 510 to submit that if the relief of declaration only has been sought and is granted in the suit, the execution proceedings for consequential relief cannot be filed. According to him, there being no direction given by the Tribunal to the petitioner to hand over possession of the disputed plot to the respondent No.1, the execution proceedings could not have been filed by her. Placing heavy reliance on the decision of this Court in case of Harsh Vardhan Kejriwal v. Madhav Nagar Grah Nirman Sahkari Samiti Ltd. & Ors, 2007(4) RLW 3473, he submitted that the dispute with regard to the civil rights like title, possession, dispute as to the agreement of sale etc., only the Civil Court would have jurisdiction, and in the instant case the respondent No.1 having raised the dispute of title with regard to the plot in question before the arbitrator, neither the arbitrator nor the Tribunal had the jurisdiction to entertain the suit. He also submitted that the Executing Court having failed to appreciate the contentions in the right perspective, the impugned order deserves to be set aside. 5. However, the learned counsel Mr. Sandeep Mathur for the respondent No.1 vehemently submitted that the petitioner having failed in all the proceedings right up to the Supreme Court, the present petition has been filed only to delay the execution proceedings and misuse the process of law. Taking the Court to the orders passed by this Court, and to the contents of the SLP filed before the Apex Court, he submitted that the petitioner had already raised the issue of jurisdiction in the first round of litigation, and therefore he could not have raised the same in the execution proceedings. 6. Having regard to the submissions made by the learned counsels for the parties, and to the documents on record, it appears that the present petition has been filed by the petitioner after having lost in the first round of litigation up to the Supreme Court. So far as the present revision petition is concerned, it appears that the petitioner had raised the objection to the effect that the execution proceedings were filed by the respondent No.1 before the Executing Court without obtaining the requisite certificate under Section 100 of the Act of 2001. So far as the present revision petition is concerned, it appears that the petitioner had raised the objection to the effect that the execution proceedings were filed by the respondent No.1 before the Executing Court without obtaining the requisite certificate under Section 100 of the Act of 2001. The present petition therefore was earlier disposed of with the direction to the respondent No.1 to obtain the requisite certificate of Registrar. Subsequently, the petitioner having filed the review petition seeking review of the said order, the present petition was restored on file vide the order dated 9/7/2015. So far as the issue of jurisdiction raised by the petitioner is concerned, it may be stated that the original dispute was raised by the respondent No.1 before the Arbitrator in respect of the plot in question on the ground that she was the owner of part of plot No.1A ad-measuring 240 sq. yards, and therefore it was a dispute between two members of the respondent No.2-Society, and also between the Members and the said Society, which would squarely fall within the purview of Section 58 of the Act of 2001 (Section 75 of the Old Act). The said issue was also sought to be raised by the petitioner before the Apex Court, as transpiring from the memo of appeal. Though, it is true that the said issue of jurisdiction perhaps was not raised by the petitioner either before the Tribunal or before the learned Single Judge, it was sought to be raised before the Division Bench as transpiring from the order passed by the Division Bench, however the same was not entertained by the Division Bench. Again the same having been raised before the Apex Court in the SLP, the Apex Court had dismissed the said SLP in limine, and therefore it is deemed to have been considered and not accepted by the Apex Court. Hence the issue of jurisdiction having already been raised by the petitioner before the Division Bench and before the Apex Court, it was not open for the petitioner to raise the same dispute again in the execution proceedings by filing objection under Section 47 of the CPC. There cannot be any disagreement with the decisions of Apex Court relied upon by the learned counsel for the petitioner, however the same have no application to the facts of the present case. 7. There cannot be any disagreement with the decisions of Apex Court relied upon by the learned counsel for the petitioner, however the same have no application to the facts of the present case. 7. Though, it is sought to be submitted by the learned counsel for the petitioner that since the Tribunal had granted the relief of declaration only, the respondent No.1 could not have filed the execution petition seeking possession of the plot in question, the said submission also cannot be accepted. The Tribunal vide the order dated 29/12/2011 had not only granted the relief of declaration to the effect that the respondent No.1 was the owner of the plot No.1A ad-measuring 240 sq. yards of the respondent No.2-society, it was also further ordered that she would be entitled to obtain possession of the said area as described therein. In view of the said direction, the respondent No.1 would be entitled to file the execution proceedings. 8. In that view of the matter, the Court does not find any substance in any of the submissions made by the learned counsel for the petitioner. The petitioner having raised the same disputes again in the execution proceedings, dragging the respondent No.1 to the second round of litigation, the present petition deserves to be dismissed with cost of Rs.25,000/- which shall be paid by the petitioner to the respondent No.1. The petition is accordingly dismissed. By this order, the stay application and other pending application, if any also stand dismissed.Petition Dismissed. *******