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2018 DIGILAW 1915 (ALL)

Nigar Sultana v. Rahullah Marufi

2018-09-04

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard Sri Arvind Srivastava, learned counsel for the petitioners and Sri Madhur Prakash alongwith Sri M.W. Faridi, learned counsel appearing for the decree holder opposite party no. 1. 2. Present petition has been filed for setting aside the orders dated 27.5.2017 and 28.5.2018. 3. By the impugned order dated 27.5.2017 the application paper no. 4-Ga filed under Section 47 CPC by the petitioner was rejected. The revision against the same was also rejected by the judgment and order dated 28.5.2018. 4. Challenging the aforesaid orders submission of learned counsel for the petitioners is that only one out of four decree holders has come forward to file the execution proceeding and therefore, the same is not maintainable; in the decree area has not been described and as such execution application is not maintainable; in the execution case, SCC Revision No. 25 of 2005 has wrongly been mentioned and infact, this is not the correct number of the revision, wherein decree was passed against the petitioner; since revision number has been incorrectly mentioned, therefore, the decree passed in the same cannot be executed; the decree was passed by the revisional court and as such could not have been executed by the trial court; and admittedly the injunction order dated 27.5.1996 passed in O.S. No. 398 of 1995 (Imtiyaz Hussain vs. Rohullah and others) is still operating and as such the decree cannot be executed; and at the best only symbolic possession can be handed over but actual possession cannot be given. 5. 5. Per contra, learned counsel for the respondent submitted that as per Order 21 Rule 15 CPC any one of the decree holder can apply for execution for the benefit of all others and therefore, the execution proceedings are legally maintainable; in the decree, correct description of property has been given and this Court in Writ A No. 46109 of 2007 (Imtiyaz Hussain vs. Rohullah Marufi and others) vide judgment dated 21.8.2014 has categorically held that the petitioner is tenant in the entire premises in dispute and not owner of any part of the premises and therefore, there is no confusion about the identity of the property in respect of which the execution proceeding has take place; although the correct revision number has been mentioned but even if it is a typing mistake, the same cannot be treated to fatal to the execution proceedings; it was further submitted that in the injunction order dated 27.5.1996 itself it has been provided that the possession shall not be delivered except in accordance with law by obtaining the order of the competent court. Learned counsel for the respondent has pointed out that the entire litigation in respect of the property in dispute, proceedings on merits have been upheld upto the Hon'ble Apex Court in favour of the plaintiff-respondent and SLP (C) No. 32321 of 2014 was dismissed vide judgment dated 15.12.2014, therefore, there is no occasion to open the case on merits. Submission, therefore, is that no interference is warranted in the present case. 6. I have considered the rival submissions and have perused the record. 7. Insofar as first argument that the execution application was not maintainable as the same was filed by one decree holder is concerned, suffice to notice that in view of the provision of Order 21 Rule 15 CPC one decree holder can file the execution application for the benefit of all others. It is also not in dispute that no other decree holder has come forward to challenge the same. Admittedly, the execution application has been signed by a single decree holder, however, I find that it has been filed by all the four decree holders and at the end after verification it has been mentioned that it has been moved by the respondent herein alongwith others. Admittedly, the execution application has been signed by a single decree holder, however, I find that it has been filed by all the four decree holders and at the end after verification it has been mentioned that it has been moved by the respondent herein alongwith others. Therefore, in view of the aforesaid provision, I do not find any legal infirmity in the execution proceedings and findings recorded by the courts below requires no interference. 8. Insofar as the description of area is concerned, it is not in dispute that the suit was dismissed by the Judge Small Causes Court vide judgment dated 8.11.2005 and the revision filed under Section 25 of the Provincial Small Causes Courts Act, 1887 was allowed vide judgment dated 24.8.2007 against which Writ A No. 46109 was filed. For the purpose of proper disposal of this petition it would be appropriate to quote certain paragraphs of the judgment of this Court dated 21.8.2014, which are quoted as under:- "The moot question which surfaces for adjudication is whether petitioner is tenant of only one room comprising the premises or of the entire premises. .... .... There is no evidence on record to establish that the premises in dispute was originally the property of the ancestors of Waqaullah and Smt. Fasihun Nishan. In the absence of evidence to the above effect, no part of the premises in dispute can devolve upon or inherited by Smt. Fasihun Nishan which may entitle the petitioner to claim any ownership on it. It is not the case of the petitioner that any portion of the property in dispute has been settled in favour of her mother Smt. Fasihun Nishan. The assessment of the municipality (paper no.52 Ga) which was produced by the petitioner himself proves that the premises in dispute was recorded in the name of Waqaullah alone. The entries in the revenue records prima facie prove that Waqaullah was the exclusive owner. The defence witnesses accepted that the property of Asfaqullah who is brother of Waqaullah is distinct and separate. It means that the aforesaid two brothers had separate properties. There is no evidence on record to prove that the property recorded in the name of Waqaullah had devolved upon him from his ancestors or that it was originally the property of his ancestors. It means that the aforesaid two brothers had separate properties. There is no evidence on record to prove that the property recorded in the name of Waqaullah had devolved upon him from his ancestors or that it was originally the property of his ancestors. Thus, no right or title in any part of it can be acquired by Smt. Fasihun Nishan, the sister of Waqaullah. In view of the above, the revisional court rightly held that the petitioner has no semblance of title in respect of any part of the premises in dispute. .... The contention that the map attached to the said affidavit does not bear the signatures of the petitioner or the suggestion that the said map has been changed is too remote a story to be accepted. The reason being that the affidavit clearly states that the petitioner is tenant of the portion shown in yellow colour in the attached map which means that the petitioner was concious of the fact that the affidavit has an attachment in the form of a map. The execution and signature on the affidavit is accepted to him and, therefore, consequentially the map which forms part of it is also admissible to him as there is no material to show that the map has been replaced or that the affidavit at the time of its execution had no map or a different map attached to it. The aforesaid admission is a clinching proof of the fact that the petitioner is tenant of the entire premises in dispute and not only of one room portion. .... .... .... .... Once it is accepted that the petitioner was the tenant of the entire premises in dispute, the eviction is inevitable as constructions amounting to material alteration have been raised by the petitioner in the premises in dispute and that he has denied the title/ownership of the respondents in respect of the portion other than one room referred to above. Thus, when the tenancy was validly determined as found by the court below, the petitioner is liable for eviction on the ground of material alteration and denial of title, leaving aside the ground of default in payment of rent. In view of the above, there is no merit in the petition and the same stands dismissed with no orders as to costs." 9. In view of the above, there is no merit in the petition and the same stands dismissed with no orders as to costs." 9. The above quoted paragraphs clearly indicates that the area of the tenanted accommodation was disputed by the petitioner right from the beginning and the case of the petitioner was rejected right upto the Hon'ble Apex Court. In the above quoted paragraphs it has been clearly indicated that no right or title in any part of it can be acquired by Smt. Fasihun Nishan, the sister of Waqaullah. It was further held that the petitioner has admitted himself tenant of the portion shown in the yellow colour in the attached map which means that the petitioner was conscious of the fact that the affidavit has an attachment in the form of a map. It was, therefore, held that the aforesaid admission is a clinching proof of the fact that the petitioner is tenant of the entire premises in dispute and not only of one room portion. It was also held that once it is accepted that the petitioner was the tenant of the entire premises in dispute, the eviction is inevitable, and therefore, the petition was ultimately dismissed. Present execution proceedings arising out of/following from the abovenoted judgments admittedly affirmed upto Hon'ble Apex Court. 10. In such view of the matter, it cannot be said that the description, as given in the execution application, wherein boundaries have been given, is not the correct description. 11. Insofar as the injunction order is concerned, suffice to note that in the injunction order itself the civil court has observed that the eviction of the tenant shall remain stayed except pursuant to the order of the competent court. In such view of the matter, the injunction order does not provide any hindrance in the execution of the decree, which is being sought to be executed by the respondent. 12. Insofar as argument that only symbolic possession is to be given is concerned, suffice to note that the suit was filed for rent and eviction and in the writ petition it has been clearly held that when the tenancy was validly determined as found by the court below, the petitioner is liable for eviction on the ground of material alteration and denial of title, leaving aside the ground of default in payment of rent. 13. 13. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. 14. Present petition is devoid of merits and is liable to be dismissed. 15. At this stage, learned counsel for the respondent submits that the court below may be directed to decide the execution case expeditiously. 16. In view of the judgment of Hon'ble Apex Court in the case of Hameed Kunju vs. Nazim 2017 (8) SCC 611 the court below is directed to expedite the execution proceedings as already directed by this Court vide order dated 11.1.2017 passed in Matters Under Article 227 No. 146 of 2017 and order dated 29.3.2018 passed in Writ A No. 8920 of 2018 by fixing short dates and no unnecessary adjournment shall be granted. 17. With the aforesaid observations, present petition stands dismissed.