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2016 DIGILAW 629 (RAJ)

Harish Kumar v. Sunder Lal

2016-05-05

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the orders dated 23.4.2016 (Annex. 12 and Annex. 15) passed by the Executing Court, whereby, the objection filed by the petitioner qua execution has been rejected and the application filed by the respondent, decree-holder, under Section 151 C.P.C. has been accepted and the possession warrant has been ordered to be issued, respectively. 2. A suit for eviction was filed by the respondent Sunder Lal in the year 1982 against the firm Murlidhar Chandra Kishore seeking eviction from a shop situated at Kotgate, Bikaner, boundaries thereof were indicated in para 1 of the plaint. The suit was resisted by the defendant firm. The suit came to be decreed on 5.5.2007 by the Trial Court. 3. Feeling aggrieved, first appeal was filed which was rejected by the Appellate Court on 24.11.2014, the second appeal against the judgment and decree passed by the two Courts below was rejected by this Court on 27.3.2015 and Special Leave Petition arising from the judgment passed in second appeal dated 27.3.2015 was rejected by the Hon'ble Supreme Court on 7.9.2015. The petitioner was granted extra time by this Court, which expired on 31.3.2016. 4. In the pending execution proceedings, an objection petition was filed by the petitioner on 26.9.2015 inter alia claiming that the two basements situated in the suit property were in possession of the judgment-debtor and the way to approach the said basements is from the shop in question; the basements are being used ever since the shop was taken on rent and the applicant is prepared to handover the possession of the shop in question, however, the possession of basements, wherein, the applicant is conducting his business, under the garb of the decree, was sought to be interfered with by the decree holder, thought the said basements are not part of the suit property and if the way to the basements from the suit shop is obstructed, the applicant would suffer irreparable injury. 5. The decree holder filed reply to the said application and stated that the suit property was let out in the year 1964 and the rent note clearly indicates that the basements were part of the said tenancy. 5. The decree holder filed reply to the said application and stated that the suit property was let out in the year 1964 and the rent note clearly indicates that the basements were part of the said tenancy. The way to the basements is from the shop itself and there is no alternative way, the same forms the subject matter of the decree and possession whereof must be delivered by the judgment debtor. It was also indicated that the petitioner based on a decree obtained by him sought to amend his written statement, which application was rejected and the said rejection was not varied either by the First Appellate Court or in second appeal and, therefore, the objection raised is absolutely frivolous and only an attempt to frustrate the decree and the undertaking, which was given by the judgment debtor pursuant to the order passed by the High Court and, therefore, the application deserves to be dismissed. 6. The decree holder also filed an application for issuance of warrant of possession and for police help. The application was resisted by the petitioner. 7. After hearing the parties the Executing Court by its order dated 23.4.2016, came to the conclusion that no plea regarding undergrounds was raised in the suit and in the two appeals and once the undertaking has been given by the judgment debtor pursuant to the directions issued by the High Court, the petitioner cannot be heard to contend otherwise and consequently dismissed the objection. For the similar reasons that as the petitioner has filed an undertaking pursuant to the directions issued by this Court, the prayer for issuance of warrant of possession was accepted, however, for the time being the prayer for grant of police help was deferred. 8. It is submitted by the learned Counsel for the petitioner that the Executing Court committed an error in dismissing the application filed by the petitioner and accepting the application filed by the respondent. It was submitted that there is no reference of two basements in the plaint and the plaintiff filed the suit based on his ownership acquired through partition deed dated 20.10.1972. It was submitted that there is no reference of two basements in the plaint and the plaintiff filed the suit based on his ownership acquired through partition deed dated 20.10.1972. It was claimed that in the partition deed, the two basements do not fall in the respondent's share and, therefore, it is apparent that said basements did not form the subject matter of the suit and consequently the same cannot be got vacated in the garb of decree passed for eviction qua the shop in question and, therefore, the orders impugned deserve to be quashed and set aside. 9. I have considered the submissions made by the learned Counsel for the parties and have perused the material available on record. 10. A bare look at the plaint reveals that the plaintiff filed the suit seeking eviction from the shop in question, which was in tenancy of the petitioner since 1964. It is not the case of the petitioner that petitioner came in possession of the basements otherwise than through the said tenancy regarding which the rent note in para 8 clearly indicates the basements forming part of the tenancy. 11. Besides the above, the location of the basements also clearly indicates that the same are part and parcel of the said tenancy only inasmuch as the way to the said basements is from the shop in question only and there is no alternative way available for approaching the said basements. If the plea raised by the petitioner is accepted, the result would be that despite the petitioner vacating the shop in question, he will continue to use the shop for approaching the basements and the shop in that case cannot be used other than as passage to the basements, which aspect by itself negates the very plea raised by the petitioner. 12. The ground sought to be raised for the first time by the petitioner is that the respondent has claimed his right based on the partition deed dated 20.10.1972 and the said partition deed does not indicate that the basements in question fall in the share of the respondent. The said ground also is apparently baseless inasmuch as the partition deed filed as Annex. The said ground also is apparently baseless inasmuch as the partition deed filed as Annex. 2 clearly indicates that the shop which was in tenancy of firm Murlidhar Ram Chandra has come to the share of the respondent and as noticed hereinbefore the shop along with the basements were let out as single tenancy to the petitioner and, therefore, the plea sought to be raised has no substance at all. 13. The petitioner has also sought to rely on a decree obtained by him in a suit filed on 23.10.1998 based on the alleged compromise with one Bhanwar Lal, which decree was passed on 31.10.1998 i.e. within a week from filing of the suit. Besides the fact that obtaining of the decree within a span of seven days and that also through the summons which were issued returnable on the next date and the defendant therein appeared, wherein, obviously, the respondent landlord was not a party, though the present suit was pending since 1982 qua the property in question, cannot be given any credence whatsoever. It is also significant to note that the plea regarding the basements not forming the subject matter of the suit property was not raised at any stage by the petitioner and the plea by way of objection during execution appears to have been raised with a view to create obstruction in execution of decree which has been upheld right upto Hon'ble Supreme Court. 14. Consequently, the conduct of the petitioner in raising absolutely frivolous objection after having given undertaking for the purpose of getting extra time for vacating the premises, cannot be appreciated and is in apparent violation of the directions issued by this Court. The Executing Court was, therefore, justified in directing issuance of warrant of possession and the plea sought to be raised by the petitioner had no substance. 15. In view of the above discussion, the orders passed by the Executing Court dated 23.4.2016 (Annex. 12 and Annex. 15) do not call for any interference. There is no substance in the writ petition and the same is, therefore, dismissed. No order as to costs.