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2015 DIGILAW 2968 (ALL)

Mahendra Kumar v. Gyan Chandra Porwar

2015-09-17

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. Aggrieved by order dated 30.5.2015 passed by Prescribed Authority, Mahoba in Execution Case No.15 of 2014, rejecting the objections filed by the petitioners in proceedings under Section 23 of U.P. Act.13 of 19721 as well as the order dated 1.9.2015 passed by District Judge, Mahoba dismissing Civil Revision No.18 of 2015, the petitioners have approached this Court invoking its supervisory power under Article 227 of the Constitution. 2. A release application under Section 21 (1) (a) and (b) of the Act was filed by the respondent against the petitioners for release of a shop in possession of the petitioners situated in Mohalla Grantganj Bazar, Mahoba. The release application was allowed by the Prescribed Authority by order dated 6.5.2014 and the order passed by the Prescribed Authority was affirmed by the appellate court with the dismissal of the appeal by order dated 26.7.2014. The matter was brought before this Court by way of a writ petition2, which was dismissed by order and judgment dated 21.8.2014. 3. The respondent applied under Section 23 of the Act for execution of the release order, which was registered as Execution Case No.15 of 2014. The petitioners filed objections, inter alia, on the ground that the demised premises belonged to Late Babu Lal and he left behind a Will dated 18.8.1993, according to which, the demised premises would devolve on the respondent land lord subject to payment of Rs.50,000/- by him to Smt. Hira Devi (daughter of Babu Lal and elder sister of the respondent). The Will specifically stipulates that in case of failure on part of the respondent to pay Rs.50,000/- to his elder sister Smt. Hira Devi, the property would devolve on the son-in-law of the testator namely Devi Prasad Gupta. It was alleged that the respondent had not paid Rs.50,000/- to Smt. Hira Devi and as such, the property had not devolved on the respondent, but to Devi Prasad Gupta, consequently, the respondent has no right to get the release order executed. 4. The respondent filed his reply stating that an oral family settlement took place during life time of Babu Lal and a memorandum thereof was reduced to writing on 29.1.1993. According to it, the shop in the tenancy of the petitioners had fallen to the share of the respondent. 4. The respondent filed his reply stating that an oral family settlement took place during life time of Babu Lal and a memorandum thereof was reduced to writing on 29.1.1993. According to it, the shop in the tenancy of the petitioners had fallen to the share of the respondent. In accordance with the family settlement, all the members of the family came in possession of the portion coming to their respective shares. The name of the petitioners and all his brothers were duly mutated in the municipal records on 19.1.1998 in pursuance to the family settlement dated 29.1.1993. Any Will executed after the family settlement will not affect the exclusive ownership right of the respondent in the shop in dispute. The objections are thus frivolous and are liable to be rejected. 5. The Prescribed Authority, by order dated 30.5.2015, after noting the contention of the respondent that a family partition had taken place on 29.1.1993, rejected the objections filed by the petitioners holding that the same is a device to delay the execution proceedings. 6. Aggrieved by the order of the Prescribed Authority dated 30.5.2015, the petitioners preferred a revision and during its pendency, they moved an application for summoning the registered Will dated 18.8.1993 from the custody of the respondent. The application was rejected by the revisional court by order dated 11.8.2015. Aggrieved by the said order, the petitioners preferred a petition under Article 227 of the Constitution before this Court, which was dismissed with liberty reserved in favour of the petitioners to challenge the order of the revisional court dated 11.8.2015 alongwith final order. The revisional court, thereafter, by a judgment and order dated 1.9.2015, dismissed the revision. The revisional court noted the contention of the respondent that Hira Devi, the sister of the respondent, had herself filed an affidavit before the Prescribed Authority in the main matter admitting the family settlement and the exclusive right, title and interest of the respondent in the demised property. The revisional court held that the plea now sought to be raised by the petitioners is, thus, barred by principles of constructive res-judicata. It, accordingly, dismissed the revision. 7. Learned counsel for the petitioners submitted that the revisional court erred in rejecting the application filed for summoning the Will from the custody of the respondent. The revisional court held that the plea now sought to be raised by the petitioners is, thus, barred by principles of constructive res-judicata. It, accordingly, dismissed the revision. 7. Learned counsel for the petitioners submitted that the revisional court erred in rejecting the application filed for summoning the Will from the custody of the respondent. It is further urged that the courts below have not decided the objections filed by the petitioners against the execution of the release order on merits, whereas such power is deemed to be vested in them, while executing the release order under Section 23 of the Act. It is urged that since the respondent had failed to pay Rs.50,000/- to his elder sister Smt. Hira Devi as per Will dated 18.8.1993 and thus, he never became the owner or the landlord of the demised property, rather it devolved on Devi Prasad Gupta, son-in-law of the testator. Thus, the respondent was not empowered to execute the release order. 8. On the other hand, learned counsel for the respondent submitted that the Prescribed Authority, while deciding the release application, had returned a specific finding that the respondent alone is the owner and landlord of the demised premises and the said finding was affirmed in appeal as well as by this Hon'ble Court. In such view of the matter, it was not open to the petitioners to re-agitate the issue relating to the title of the respondent in course of execution proceedings. 9. I have considered the submissions made by learned counsel for the parties and perused the record. 10. The release application was contested by the petitioners by alleging that after the death of Babu Lal, his entire properties including the demised premises had devolved on his three sons and two daughters by intestate succession. A specific plea was taken in the written statement that the respondent is not the sole owner or the landlord and was not entitled to maintain the release application. The Prescribed Authority dealt with the plea raised by the petitioners by returning a specific finding to the effect that an oral family settlement had taken place between the three sons and two daughters of Babu Lal during his life time and same was reduced to writing on 29.1.1993. The Prescribed Authority dealt with the plea raised by the petitioners by returning a specific finding to the effect that an oral family settlement had taken place between the three sons and two daughters of Babu Lal during his life time and same was reduced to writing on 29.1.1993. For arriving at such conclusion, the Prescribed Authority had placed reliance on Paper No.68-Ga 1, the original family settlement; the affidavits filed by Prakash Chandra Purwar and Harish Chandra Purwar, the other two brothers of the respondent admitting the family settlement and the affidavit of Hira Devi and Kusum Devi, the sisters of the respondent also admitting and acknowledging the family settlement. The findings returned by the Prescribed Authority were affirmed in appeal. Thus, on the pleadings made in the original proceedings, it was specifically held that the respondent, in view of the family settlement, is the exclusive owner and landlord of the demised premises. 11. The plea now raised in course of execution proceedings by the petitioners is, on the face of it, self contradictory. While in the written statement filed in the main proceedings, it was alleged that Babu Lal had not left behind any Will and after his death, all his heirs have succeeded to his properties and the respondent cannot claim himself to be the sole owner and landlord of the demised premises, but in the objections filed in execution proceedings, the respondent has taken a complete somersault and now according to him, Gyan Chandra has left behind a Will and his estate had devolved by testamentary succession. In such view of the matter, this Court is of the opinion that the executing court was fully justified in holding that the petitioners cannot be permitted to raise such plea in proceedings under Section 23 of the Act. As noted above, in the main proceedings, one of the issues between the parties was whether the respondent was the owner and the landlord of the demised premises or not. The said issue was decided in favour of the respondent by accepting the plea set up by him that there had been a family settlement, whereunder the demised premises has fallen to his share. The said issue was decided in favour of the respondent by accepting the plea set up by him that there had been a family settlement, whereunder the demised premises has fallen to his share. In case the petitioners wanted to contest the claim of the respondent being the owner and the landlord of the demised premises on the ground now set up, such plea should have been raised in the main proceedings, as admittedly, it is not in dispute that by that time, Gyan Chandra had died and the succession had opened. Thus, the revisional court was also justified in holding that the objections now sought to be raised by the petitioners are barred by principles of constructive res-judicata. 12. Even otherwise, what this Court notices is that the alleged Will by Babu Lal is dated 18.8.1993, whereas according to the findings returned by the Prescribed Authority in the main proceedings, the oral family settlement took place during the life time of Babu Lal, whereunder the demised premises had fallen exclusively to the share of the respondent. Once a family settlement had taken place and memorandum whereof was also reduced to writing on 29.1.1993, Babu Lal ceased to have any interest in the shop in the tenancy of the petitioners. Thus, even if any Will was executed by him in regard there to on 18.8.1993, it will not have any effect on the right, title or interest of the respondent in relation to the demised premises. Thus, the objections raised by the petitioners have no force and were rightly repelled by the courts below. 13. In view of the discussion made above, this Court is of the opinion that even if the request for summoning the Will was rejected, it had not caused any prejudice to the petitioners. 14. The petition lacks merit and is dismissed. 15. In the end, learned counsel for the petitioners submitted that some time may be granted to the petitioners to vacate the demised premises, to which learned counsel for the respondent has no objection. 14. The petition lacks merit and is dismissed. 15. In the end, learned counsel for the petitioners submitted that some time may be granted to the petitioners to vacate the demised premises, to which learned counsel for the respondent has no objection. Therefore, with consent of learned counsel for the parties, it is further provided as under: - (a) The petitioners shall be permitted to remain in possession of the demised premises until 15.3.2016, provided they furnish an undertaking in the shape of their joint affidavit, before the Prescribed Authority within two weeks from today, stating that they would hand over peaceful vacant possession of the demised premises to the respondent without any let or hindrance on or before 15.3.2016. (b) The petitioners shall deposit the entire arrears of rent as well as future rent until 15.3.2016 before the Prescribed Authority within a period of three weeks from today. (c) The rent, if any, deposited shall be permitted to be withdrawn by the respondent without requiring him to furnish any security. 16. In case of failure of any of the terms and conditions stipulated above, the interim protection granted to the petitioners shall stand automatically discharged and the respondent will become entitled to execute the release order forthwith.