Mohan Lal v. Jugal Kishore & Anr.

Present : Mr. R.P.S.Rana, Advocate for the petitioner. Mr. R.S.Mittal, Senior Advocate with Mr. Anil Gaur, Advocate for the respondents. K.C.PURI. J. This is revision petition preferred by Mohan Lal-petitioner for setting aside the impugned order dated 12.3.2007 passed by Shri Rajiv Kalra Civil Judge (Junior Division) Jalandhar vide which the execution application filed by the petitioner was dismissed. Briefly stated the case of the petitioner is that he has approached the trial Court for execution of final decree dated 11.11.1989 passed by the court of Mrs.Sudershan Modi, the then Sub Judge Ist Class, Jalandhar in Civil Suit No.65 of 1974, and for issuance and execution of the warrant of possession against Jugal-Kishore-respondent and for delivery of possession of the property as first floor of shop Nos.18 and 19 situated in Civil Revision No. 2484 of 2007 2 Mohalla No.18, Jalandhar Cantt. It is alleged by the petitioner that he entitled for exclusive possession of the property situated at first floor of shops No. 18 and 19 Mohalla No.18, Jalandhar Cantt., which is in illegal possession of Jugal Kishore. On notice, Jugal Kishore and Sunder Lal @ Surinder Kumar respondents appeared and controverted the claim of the petitioner. They took preliminary objections that the petitioner has no locus standi to move the execution application as he has no interest or title in the property situated at first floor of shop Nos.18 and 19 in Mohalla No.18, Jalandhar Cantt; that the applicant is estopped by his own act and conduct and admission from bringing the present application; that decision in previous suit operates as res-judicata; that the present execution application is not maintainable on the basis of preliminary decree dated 11.11.1989, since the preliminary decree has been followed by final decree of partition dated

20.4.1992. further preliminary objections have been raised that the present execution application is false, frivolous and vexatious and no cause of action has accrued to the petitioner to move this execution application. The respondents further denied that the petitioner is entitled for exclusive possession of the suit property. It has been further alleged that as per final decree dated 20.4.1992, the shops No.18 and 19 only fell to the share of the petitioner. In fact there is residential flat No.23/1 consisting of two rooms and balcony over these shops No.18 and 19, which fell to the share of petitioner-Surinder Kumar @ Surinder Lal. Therefore, the petitioner has no right,title and interest in such property. It has further been alleged that Mohan Lal-petitioner had filed a Civil suit No.158 of 1994 titled Mohan Lal Civil Revision No. 2484 of 2007 3 Aggarwal vs. Jugal Kishore and Surinder Kumar for permanent injunction for restraining them from demolishing, reconstructing or altering and making improvement on the first floor of shop Nos.18 and 19 situated in Mohalla No.18, Jalandhar Cantt. The respondents filed written statement in that suit on 2.12.1994 claiming himself to be the owner of property No.23/1 situated on the shops Nos.18 and 19 Mohalla No.18 of Jalandhar Cantt. The applicant got his suit dismissed by making a statement in the Court. Therefore, the petitioner is estopped by his act and conduct from bringing the present execution application. Ultimately, they prayed for dismissal of the execution application with costs The issues were framed on 6.9.2002 :- (1) Whether the Mohan Lal is entitled to the exclusive possession of the property situated in at the first floor of Shop Nos.18 and 19 in Mohalla No.18 Jalandhar Cantt consisting of two rooms and balcony ?OPA. (2) Whether the application is not maintainable?OPR. (3) Whether the application is barred by principles of res-judicata ?OPR. (4)Relief. The parties had led their respective evidence in support of the aforesaid issues. The executing Court after appreciating the evidence of both the parties, dismissed the execution application as the petitioner failed to prove his case. Feeling dis-satisfied with the above said order of dismissal of the execution application, the present revision petition has been filed. I have heard learned counsel for the parties and have gone through the records of the case with their help. Civil Revision No. 2484 of 2007 4 Issue No.2. The trial Court held that since the execution of final decree dated 11.11.1989 has been sought to be enforced and as such, the petition for its execution is not maintaianble. In this case, originally decree dated

11.11.1989 was passed and the final decree has been passed on 20.4.1992. So, the petition is not maintainable. The technical objection cannot be allowed to prevail. The trial Court should have ordered the correction of date of decree as 20.4.1992 instead of 11.11.1989. So, the finding of the trial Court on this issue stands reversed and it is held that applicant is entitled to execute the final decree. Issue No.1. So far as issue No.1 is concerned, the trial Court after appraisal of the evidence reached to the conclusion that on shop No.18 and 19 the property Nos.23/1 and 23/2 is situated which has not fallen to the share of Mohan Lal-petitioner. The learned counsel for the petitioner has failed to convince the Court that the said finding returned by the trial Court is wrong. Admittedly, the partition has taken place between the parties and shop No.18 and 19 fell to the share of petitioner whereas property Nos.23/1 and 23/2 has fallen to the share of respondent-Surinder Kumar. The petitioner has in fact raised a clever move to the effect that whole of the property over Khasra No.18 and 19 belongs to him. The fact remains that final decree has been passed and Khasra Nos.23/1 and 23/2 has fallen to the share of Surinder Kumar. Surinder Kumar in the written reply has taken a specific objection that properties No.23/1 and 23/2 is situated on property Nos.18 and 19. That plea has been proved by him by examining witnesses. Civil Revision No. 2484 of 2007 5 The petitioner has not himself appeared in the witness box to depose that property Nos.23/1 and 23/2 is not situated on property No.18 only. Learned counsel for the petitioner has submitted that since in the house tax register property Nos.23/1 and 23/2 have been shown to be over the property Nos.22 and 23. So, in these circumstances the possession of the said property should be ordered to be handed over to the petitioner. However, that contention stands unproved on the file. There is definite finding of the trial Court that property Nos.23/1 and 23/2 are situated on shop Nos.18 and 19. So, in these circumstances, no ground for interference in the present revision petition is made out. Consequently, the revision petition is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. February 03 , 2010 ( K.C.PURI ) JUDGE