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2024 DIGILAW 406 (RAJ)

All Koli Samaj Newai v. Sushila

2024-03-05

MAHENDAR KUMAR GOYAL

body2024
ORDER : Mr. Mahendar Kumar Goyal, J. - This writ petition under Article 227 of the Constitution of India has been filed assailing the legality and validity of the order dated 25.03.2022 passed by learned Civil Judge, Niwai District, Tonk (for brevity, "the learned executing Court") whereby, while allowing an application filed by the respondents No.1 to 4/decree holders (for brevity, "decree holders") under section 151 CPC, it has been held that the objections raised by the petitioner/objector (hereinafter referred to as "objector") to the execution of the decree are required to be decided without framing issues/recording evidence. 2. Learned counsel for the objector, inviting attention of this Court towards the judgment and decree dated 07.10.2005 execution whereof is sought and the various revenue documents, would submit that the land of Khasra No.4039/1, Village Niwai though, Charagah in nature; but, is recorded in the name of President, Koli Samaj. He submits that the subject land, i.e., land of Khasra No. 4039/2 is recorded in the Khatedari of the decree holders and in garb thereof, they want to encroach upon the land of Khasra No.4039/1 under possession of the objector. He submits that since, for decision of the objections raised by the objector, framing of issues and leading of evidence is necessary, the learned executing Court erred in allowing the application filed by the decree holders under section 151 CPC. He, therefore, prays that the writ petition be allowed, the order dated 25.03.2022 be quashed and set aside and the application filed by the decree holders under section 151 CPC be dismissed. 3. Heard. Considered. 4. While allowing the application filed by the decree holders, it has been observed by the learned executing Court that the objections raised by the objector are similar to the defense(s) raised by the defendants in their written statement which has already been decided by the learned trial Court on its merit and even the second appeal preferred there against has been dismissed by this Court vide judgment and decree dated 11.01.2017. It has further been observed that the suit was filed way back in the year 1998 and till filing of the objections as late as in August, 2017, in the facts and circumstances of the case wherein, a large number of members of Koli Samaj were impleaded as defendants, it could not reasonably be believed that the objector had no knowledge of the pendency of the litigation. This Court has also gone through the judgment dated 07.10.2005 placed on record by the objector as Annexure-1 which reveals that the objection raised by the objector that the land of Khasra No.4039/1, i.e., pasture land is in possession of the Koli Samaj and the decree holder (plaintiffs) wanted possession of this land in the garb of claiming title and possession on the land of Khasra No.4039/2, was also raised in the defence which, after appreciation of the oral as well as documentary evidence, did not find favour with the learned trial Court and the decree holders were held to be khatedar in possession of the land of Khasra No.4039/2. Indisputably, the judgment and decree dated 07.10.2005 passed by the learned trial Court have been upheld by this Court while dismissing the civil second appeal preferred by the defendants. Further, the objector has admitted its encroachment over the Charagah land comprising of Khasra No.4039/1 in as much it has been served with the notice(s) under Section 91 of the Rajasthan Land Revenue Act, 1956. In view thereof, in the considered opinion of this Court, the learned executing Court did not err in allowing the application filed by the decree holders under section 151 CPC. Even otherwise, it is trite law that it is discretion of the learned executing Court to determine as to whether the objections raised are to be adjudicated upon after framing issue and recording the evidence thereupon or without following such process. Therefore, the learned executing Court has in its judicious discretion based on material on record held that the objection raised by the objector can be decided without framing issues/recording evidence. 5. Their lordships have, in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., [ (1998) 3 SCC 723 )], held as under: "14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. 5. Their lordships have, in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., [ (1998) 3 SCC 723 )], held as under: "14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97 (2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary." 6. Further, a co-ordinate Bench of this Court has, in the case of Prem Singh and Ors. v. Amari Devi and Ors. [2019(3) RLW2301(Raj.)] dealing with an identical situation, held as under: "33. This Court also finds that the learned court below has already observed that the facts which were being sought to be determined in the execution petition by the petitioner have already been determined in the decree by the learned court passing the decree, and thus, there was no reason why redetermination of such facts would be done by the executing court. Thus, in the given facts and circumstances, the learned court below has rightly exercised its jurisdiction by not initiating any fresh exercise of framing of issues or gathering of evidence, as there was no such requirement at this stage. 34. This Court further finds that the learned court below has rightly observed that the original documents and the record of the case clearly indicate that there is no requirement of framing of issues or taking of any fresh evidence, as it would unnecessarily delay the adjudication of the case. This Court has also taken note of the fact that the matter is more than 10 years old, and thus, the same needs to be decided expeditiously." 7. In the backdrop of the aforementioned legal proposition and material on record, this Court in its limited supervisory jurisdiction vide Article 227 of the Constitution of India finds no reason to interfere with the well reasoned order passed by the learned executing Court. 8. Resultantly, this writ petition is dismissed being devoid of merit. 9. In the backdrop of the aforementioned legal proposition and material on record, this Court in its limited supervisory jurisdiction vide Article 227 of the Constitution of India finds no reason to interfere with the well reasoned order passed by the learned executing Court. 8. Resultantly, this writ petition is dismissed being devoid of merit. 9. However, looking to the life of the execution petition, the learned executing Court is directed to decide it expeditiously.