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2016 DIGILAW 729 (UTT)

R. P. Church v. Lt. Col. Rakesh Sarkar

2016-10-18

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. Judgment and order dated 19.12.2015 rendered by the Ist Additional District Judge, Dehradun is under challenge before this Court. Vide said decision, learned Court allowed the objections under Order XXI Rule 97 CPC holding the decree to be non-executable and, as a consequence, refused to execute the decree dated 19.3.2014 which the plaintiff could obtain after a long legal battle in SCC Suit no. 8/2007. Against this decree, the tenant Lt. Col. Rakesh Sarkar filed a Civil Revision No. 32/2014, which was also dismissed by the High Court on merits and the eviction order was upheld. Even thereafter Mr. Rakesh Sarkar presented the review application no. 433/2014 and that too was dismissed on merits on 26.8.2014. Thereafter the plaintiff presented the execution petition on 5.9.2014, which was resisted by way of filing the objections, as indicated above, on 5.4.2015 and the reply of objection was submitted by the plaintiff soon thereafter on 8.4.2015. After rendering opportunity to both the parties to adduce their evidence and cross-examine each other, learned Additional District Judge/Executing Court refused to execute the decree. 2. Having gone through the impugned judgment, I noticed that the finding of learned Judge that Mr. Rakesh Sarkar (tenant) along with his father Mr. A.K. Sarkar had shifted to Gurudaspur (Punjab) during his childhood is quite erroneous. 3. This Court need not to burden the present order by reproducing the whole pedigree right from the original tenant Vilkin Ifrahim, but it is certain that Smt. Stela Lila (one of the descendants of Mr. Vilkin Ifrahim) was wedded with Mr. A.K. Sarkar and got divorced subsequently in 1964 and after such divorce, she remarried with one Mr. Shishir Saxena. Mr. Shishir Saxena was the resident of 252 Chukhhuwala, Dehradoon. So, obviously, it is difficult to believe that Smt. Stela Lila after her remarriage continued to live in the property, in dispute, because she, in all probabilities, was supposed to live with her newly wedded husband Mr. Shishir Saxena. She was also blessed there with two children, namely, Marlin Preetee Saxena and Sara Shubhanjali. So, obviously, it is difficult to believe that Smt. Stela Lila after her remarriage continued to live in the property, in dispute, because she, in all probabilities, was supposed to live with her newly wedded husband Mr. Shishir Saxena. She was also blessed there with two children, namely, Marlin Preetee Saxena and Sara Shubhanjali. Eventually, Sara Shubhanjali settled in Switzerland, but Marlin Preetee Saxena, in any case, cannot be accepted to live in the property, in dispute, because she was a child, who took birth at the residence 252 Chukhhuwala, Dehradun and this fact finds support from the death certificate issued by the Registrar (Death and Birth), Nagar Nigam, Dehdraun to the effect that Mr. A.K. Sarkar breathed his last on 9.11.2003 at 13 Omkar Road, Dehradun, which was a tenanted premise. So, the story that after getting divorced from Stela Lila, Mr. A.K. Sarkar continued his dwelling with Asha Ifrahim (real sister of Stela Lila) in live-in relationship is more worthy to be believed and in that case, it was not possible for Mr. Rakesh Sarkar to shift to Gurudaspur. Although Mr. Rakesh Sarkar was an army officer, but his frequent and off and on visits at the present place of his father Mr. A.K. Sarkar was not unusual and this fact finds support from the fact that when Smt. Asha Ifrahim died in 2004, the plaintiffs continued to receive the rent from Mr. Rakesh Sarkar and also issued the receipts in the name of Asha, the stepmother of Mr. Rakesh Sarkar. 4. Whatever documents have been brought on the record by Marlin Preetee Saxena, like the Aadhar Card and Voter I.D. Card, are of very recent period and it can be discerned that these papers have been got prepared just to frustrate the decree, which was passed on 19.3.2014, and this has been done in collusion with her sibling, the judgment debtor. 5. In comparison to these papers, if we look to the voter list, received under the Right to Information Act which manifests the name of voters during the period 1991-95, it entails the name of Marlin Preetee/Shishir (the name of respondent/the name of her father) as the resident of Mohalla Chukhhuwala, Dehradun where her parents resided. That time, she was a young voter. That time, she was a young voter. She was wedded after 1995, but it has been brought to the notice of this Court that in course of time, she was also got divorced by her husband. After such divorce, it is unbelievable that she was accepted as a tenant by the plaintiff/landlord. 6. In the above background, the deposition of Mr. Alok Chandra Singh (DW2), made on 31.11.2015 in execution proceedings is quite believable that she has been seen living in this disputed premise since the last two and half years only, while the suit was filed in April 2007. Therefore, it is obvious that in order to frustrate the prospective decree (if any), she was admitted in occupation preemptorily by her sibling (brother Lt. Col. Rakesh Sarkar), who was contesting the litigation tooth and nail. 7. In view of what has been set forth above, I am of the view that this revision is worthy of acceptance. It is hereby allowed. Impugned judgment and order is set aside. 8. Executing Court is directed to execute the decree forcefully and by opting all possible coercive measures, and without affording any further opportunity of hearing to anyone. 9. All pending applications stand disposed of accordingly.