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2018 DIGILAW 1484 (ALL)

Rajendra v. Pooran

2018-07-05

VIVEK KUMAR BIRLA

body2018
JUDGMENT : V.K. Birla, J. 1. Heard Sri Manish Kumar Nigam, learned counsel for the petitioners and Sri S.N. Singh alongwith Sri Rajesh Kumar Tiwari, learned counsel appearing for the caveator-respondents. 2. Present petition has been filed for setting aside the order dated 13.3.2018 passed by the ADJ, Court No. 6, Mathura in Revision No. 176 of 2017 and order dated 26.9.2017 passed by Civil Judge (Junior Division), Mathura. 3. By the impugned order dated 26.9.2017 the objection filed by the petitioners herein under Section 47 CPC was rejected. The revision filed by the petitioners against the same was also rejected. 4. Undisputed facts of the case in brief, as supplied by learned counsel for the parties, are that the Suit No. 523 of 1965 (Gaon Sabha vs. Pooran and others) was filed with regard to plot no. 630 (new no. 186) measuring an area of 18 decimal, which has been occupied by Pooran and Khusiram, whereas in the plaint in para no. 1 it is alleged that plot no. 630 measuring an area of 57 decimal in which plot no. 630 measuring an area 27 decimal with regard to Pooran and Khusiram out of which 18 decimal was claimed to be illegal possession of the land of Gaon Sabha. The suit was decreed ex-parte on 14.4.1966 and possession was taken by Gaon Sabha of 18 decimal. Thereafter, an application under Order 9 Rule 13 for recalling the order dated 14.4.1996 as Misc. Case No. 194 of 1966 was filed. Vide order dated 6.5.1967 the order dated 14.4.1966 was set aside and suit was restored to its original number. After restoring the case, the Gaon Sabha granted patta of 18 decimal in favour of Ram Ji Lal, Parmal, Gopi and Kunwari. The suit no. 523 of 1965 was dismissed as not pressed on 13.7.1967. On 15.7.1967 Pooram and Khusiram filed an application under Section 144 CPC for restitution i.e. for restoring possession which was registered as Misc. Case No. 101 of 1967. On 16.12.1967 a compromise was entered into between Pooran, Khusiram and Parmal as 19-Ga in Misc. Case No. 101 of 1967, which was allowed on 16.12.1967. The execution case no. 17 of 1968 was filed in terms of compromise dated 16.12.1967. On 12.4.1969 Ram Ji Lal filed an application for recalling the compromise order dated 16.12.1967 as Misc. On 16.12.1967 a compromise was entered into between Pooran, Khusiram and Parmal as 19-Ga in Misc. Case No. 101 of 1967, which was allowed on 16.12.1967. The execution case no. 17 of 1968 was filed in terms of compromise dated 16.12.1967. On 12.4.1969 Ram Ji Lal filed an application for recalling the compromise order dated 16.12.1967 as Misc. Case No. 65 of 1968, which was allowed by order dated 12.4.1969. After the order dated 12.4.1969 Ram Ji Lal filed execution case no. 130 of 1969 and on 4.12.1971 the possession was delivered of disputed land in favour of Ram Ji. Against the order dated 12.4.1969 Pooran and Khusiram filed an appeal, which was dismissed on 30.10.1971. The delivery of possession has been obtained by Ram Ji Lal on 4.12.1971 in execution case no. 130 of 1969. Aggrieved by the order dated 12.4.1969 and the appellate order dated 30.10.1971 passed by Munsif Magistrate, Mathura filed second appeal before this Court as Second Appeal No. 1150 of 1972, which was allowed vide order dated 30.7.1981 and the orders dated 12.4.1969 and 30.10.1971 were set aside and the application of purchaser was also dismissed. On 9.3.1984 case no. 166 of 1981 was filed by Pooran and Khusiram for restitution of possession in pursuance of the judgment and order dated 30.7.1981 passed in second appeal no. 1150 of 1972, which was allowed. On 8.8.1989 against the order dated 9.3.1984 Ram Ji Lal filed appeal no. 41 of 1984 and during pendency of appeal also filed compromise as 35Ga, which was rejected vide order dated 8.8.1989 and the appeal no. 41 of 1984 was also dismissed. The order dated 9.3.1984 passed under Section 144 CPC for restoration of possession which was allowed in favour of Pooran and Khusiram and case crime no. 166 of 1981 was not challenged by the petitioner before any court and the same has attained finality. The execution case no. 38 of 1990 for executing the order dated 9.3.1984 was filed. The objection was filed under Section 47 CPC by Ram Ji Lal, which was dismissed. Against the order dated 26.9.2017 revision was filed by Ram Ji Lal before District Judge, Mathura as Revision No. 176 of 2017, which was also dismissed on 10.3.2018. The execution case no. 38 of 1990 for executing the order dated 9.3.1984 was filed. The objection was filed under Section 47 CPC by Ram Ji Lal, which was dismissed. Against the order dated 26.9.2017 revision was filed by Ram Ji Lal before District Judge, Mathura as Revision No. 176 of 2017, which was also dismissed on 10.3.2018. The order dated 9.3.1984 under Section 144 CPC in Case No. 166 of 1981 for restoring the possession of the entire land has attained finality and the same has not been challenged by the petitioner at any point of time. In Second Appeal No. 1150 of 1972, which was allowed on 30.7.1981 and order dated 12.4.1969 and 30.10.1971 and application of Ram Ji Lal was set aside, therefore, Ram Ji Lal has no locus to retain his possession over the land in question situated in plot no. 186, which was obtained by him through lease deed in pursuance of the order dated 14.4.1966 in Suit No. 523 of 1965, whereas the aforesaid suit was dismissed, therefore, Ram Ji Lal has no locus to retain the possession of the land in question. The suit was decreed of 18 decimal, whereas in pursuance of the order dated 12.4.1969 in execution case no. 130 of 1969 Ram Ji Lal has forcibly get possession of excess 3 decimal after demolishing part of the house of the applicant, therefore, Khusiram and Pooran has claimed for getting possession of 21 decimal in execution case no. 38 of 1990. Pooran and Khusiram is ready to get executed the order dated 9.3.1984 with regard to the land of 18 decimal for which they are contesting their case for his own land since 1965. After decision of the second appeal everything has come to an end and Pooran and Khusiram are entitled to get their entire land, which was in possession of Ram Ji Lal. 5. The objection of the petitioners was rejected on the ground that the second appeal no. 1150 of 1972 filed by the decree holder Pooran was allowed by this Court vide judgment dated 30.7.1981, whereby the judgment passed by Munsif Court and by first appellate court was set aside and it was specifically observed that the objection of the purchasers stands dismissed. 1150 of 1972 filed by the decree holder Pooran was allowed by this Court vide judgment dated 30.7.1981, whereby the judgment passed by Munsif Court and by first appellate court was set aside and it was specifically observed that the objection of the purchasers stands dismissed. It is not in dispute that the judgment of this Court passed in second appeal has become final and thereafter the decree holder initiated proceedings under Section 144 CPC for restitution, which was allowed and the revisionist Ram Ji Lal, through whom the petitioners are claiming their title, was directed to restore the possession. The order dated 9.4.1984 for restoration has become final. It was further noticed that in Civil Appeal No. 41 of 1984 a compromise paper no. 35-Ga were filed, however, since no one turned up to verify the same. The compromise was rejected by order dated 8.8.1989 and as such they have become meaningless. In such view of the factual background the objection filed under Section 47 CPC was rejected and the revision was also dismissed by the lower revisional court. 6. In his argument learned counsel for the petitioners has drawn attention to various documents and only factual aspect of the matter has been argued to submit that the Gaon Sabha has filed O.S. No. 523 of 1965 for possession of Gata No. 18 area 25 decimal, which was allowed ex-parte against Pooran and Khushiram on 14.8.1966. An application filed under Order 9 Rule 13 CPC was allowed on 6.5.1967 and the suit was restored to its original number. In the meantime, since the Gaon Sabha had also executed patta in favour of Ram Ji Lal, the predecessor-in-interest of the present petitioners, Parmal, Gopi and Mona, therefore, the suit was dismissed as not pressed. It was sought to be highlighted that that in application under Section 144 CPC for restoration of their possession, which was registered as Misc. Case No. 101 of 1969, a compromise was entered into on 16.12.1969 between Pooran, Khusiram and Parmal to the effect that 8 decimal of land, which was in possession of Pooran and Khushiram will remain in their possession, wherein Ram Ji Lal was not a party. Consequently, Ram Ji Lal and others, who were not party in the aforesaid compromise filed an application for setting aside the order dated 16.12.1969, which was allowed. Consequently, Ram Ji Lal and others, who were not party in the aforesaid compromise filed an application for setting aside the order dated 16.12.1969, which was allowed. Against which the appeal filed by Pooran and others was dismissed by the lower appellate court, however, the second appeal no. 1150 of 1972 was allowed vide judgment dated 30.7.1989. It was highlighted that Pooran and Khusiram filed Misc. Case No. 166 of 1981 for restoration of possession, which was allowed on 9.3.1984. Against which, Misc. Appeal No. 41 of 1984 was filed by Ram Ji Lal. During pendency whereof a compromise application dated 27.4.1989 being paper no. 39-Ga was filed by the parties, which was dismissed as the parties did not appear for verification to the same and the appeal was also dismissed in default on 14.12.1989. 7. Submission is that while allowing the second appeal no direction was given by this Court and only impugned judgment and decree passed by the courts below i.e. dated 12.4.1969 and 30.7.1971 were set aside and therefore, the finding that compromise paper no. 19-Ga has been set aside by the court, is incorrect as only the order dated 12.4.1969 passed in Misc. Case No. 765 of 1968 and the order dated 30.7.1991 passed in Appeal No. 65 of 1969 were set aside by this Court in second appeal. It was highlighted that in the impugned judgment of the trial court the area was given as 18 decimal. In the application for restitution the area was given as 18 decimal at page 69, 70 and 73, whereas in the subsequent application for restitution at page 111 of the paper book the area has been mentioned as 21 decimal, which cannot be the position and this area of 18 decimal cannot be enhanced to 21 decimal. 8. Per contra, learned counsel appearing for the respondents has submitted that since in second appeal, the judgments of the trial court and the first appellate court were set aside and the application of the purchasers were dismissed, the compromise entered into between the parties also stood set aside and therefore, the possession as existing prior to the decree has to be restored and therefore, the area measuring 21 decimal has been rightly claimed by the decree holder and has been rightly allowed by the courts below. Learned counsel for the respondent has submitted that since the caveator are fighting for their own land since 1965 they are having the right to get the order dated 9.3.1984 executed with regard to land measuring 21 decimal. It was further highlighted that Annexure-8 to the writ petition is not under challenge and the appeal against the same was dismissed for want of prosecution. It is, however, submitted that in case the land is found to be less than 21 decimal, the respondents do not wish to continue with the litigation and to curtail the same, they are even ready to accept 18 decimal land. 9. I have considered the rival submissions and have perused the record. 10. At the very outset, it may be noticed that the entire argument of learned counsel for the petitioners is factual in nature. No legal infirmity or jurisdictional error in the order impugned herein could be indicated so as to attract interference of this Court under Article 227 of the Constitution of India. 11. On merits also I find that the courts below have rightly noticed this fact that once the second appeal no. 1150 of 1972 filed by the decree holder Pooran was allowed by this Court vide judgment dated 30.7.1981 and once judgment and order passed by munsif court as well as lower appellate court were set aside and against the order passed by the courts below on an application filed by the decree holder under Section 144 CPC the appeal filed by the Ram Ji Lal (now deceased) was dismissed vide order dated 9.4.1984, which has become final and the compromise paper no. 35-Ka was never verified between the parties and was also rejected vide order dated 8.8.1989, the judgment of this Court passed in second appeal was rightly put into execution and the objection regarding land that is being claimed in the execution proceedings being 21 decimal, has been correctly interpreted by both the courts below and I do not find any legal infirmity in the orders impugned herein. 12. Present petition is devoid of merits and is accordingly dismissed.