Pankaj Kum ar Maheswari v. Radha Krishan & Ors.

to 5. The decree was confirm ed by the High Court vide order dated 31.0 8 .20 0 7. In the m onth of Decem ber, 20 0 7, when the petitioner cam e to know that the respondent nos. 1 to 5 filed an execution case against respondent nos. 6 to 10 and 13, then on 0 3.0 1.20 0 8 the petitioner filed a Misc. Civil Case against the execution under Order XXI Rule 99 & 10 0 and under Section 47 of the Code of Civil Procedure, 190 8 (hereinafter referred to as the C.P.C.), with the averm ents that his ancestor late Heeralal was the owner of the property no. 19, Karanpur, known as Alka Building. This property is a two-storey building having two shops in the ground floor and the first floor is being used for residential purpose. Heeralal died in the year

#1961. He did not execute any WILL. After his death, two two daughters, nam ely, Munshi Lal, Radhakrishna, Sm t. Bhagwan Devi and Sm t. Shripyari succeeded him . The said property was the joint property of the legal heirs of Heeralal, having each 1/ 4 th joint share. Sm t. Bhagwan Devi was the grandm other of petitioner. After Sm t. Bhagwan Devi’s death her son Krishna Gopal and daughter Mahadevi inherited her property. The property was a joint property. After the death of Krishna Gopal on 0 8.0 6.1983, the petitioner becam e the legal heir of Krishna Gopal. The petitioner has 1/ 8 th share in the said joint property. The said property was in the occupation of Munshi Lal/ co-owner and it was thereafter occupied by his legal heirs and they continued their business in the said property. Now the petitioner is occupying the said property. The petitioner also cam e to know that on 19.0 9.1969 Radhakrishna and Munshi Lal partitioned the said property am ong them selves. The petitioner also cam e to know that when relations in between Radhakrishna and Bindeshwari got strained, one Suit No. 233/ 1970 ‘Radhakrishna vs. Bindeshwari’ was instituted and a decree was obtained without im pleading the petitioner as well as other successors of Sm t. Bhagwan Devi. It is stated that the decree is not binding upon the petitioner as the sam e has been obtained without im pleading the petitioner as well as his ancestors a party. The said decree has been obtained to grab the said property, therefore, the judgm ent and the decree in suit no. 233 of 1970 is illegal, ineffective, void and the decree is not executable. On the basis of said decree, the decree holder is not entitled for occupation of the said property or for any dam age of use of the said property. It is stated that no one has the right in occupation and ownership against the petitioner. The respondent nos. 2 to 6 have no right to file execution application. The entire execution proceeding is not m aintainable and liable to be dism issed.

#3. On 0 7.0 3.20 0 8, the respondent nos. 2 to 6 filed objection against the application m oved by the petitioner the assertion the pedigree given by petitioner is incom plete and wrong. It was stated in the objection that Sm t. Sripyari Devi has another son, nam ely, Ram Pratap Birla and Krishna Gopal was survived by his widow, one son and 5 daughters. Sim ilarly the two daughters of Sm t. Karupi Devi as well as Munshi Lal have expired leaving behind their respective heirs. It is stated that the said property was owned and acquired by Munshi Lal and Radha Krishna in the nam e of Heeralal, and this question has conclusively been decided up to the stage of SLP. It has been further stated that the question involved in the application is barred by the principles of res-judicata by virtue of the dism issal of Suit no. 24 of 1973 ‘Sm t. Sripyari Devi vs. Sri Radha Krishna and others’ from the Court of Civil J udge, Etah to which the applicant, his father Krishan Gopal and all the heirs of Krishan Gopal and Sm t. Mahadevi D/ o Bhagwan Devi were parties. It was adm itted that Heeralal was survived by his two sons, nam ely, Munshi Lal and Shri Radha Krishna and two daughters, nam ely Sm t. Bhagwan Devi and Sm t. Sripyari, besides his widow Sm t. Ganga Devi. It was also stated in the objection that the property was owned by Munshi Lal and Radha Krishna. On partition am ongst Munshi Lal and Radha Krishna, the property cam e to the share of Radha Krishna and after his death, the opposite parties are inheriting the sam e. The issue with regard to Benam i purchase of property bearing no. 19, Karanpur, Dehradun was the subject m atter in suit no. 233/ 1970 ‘Radha Krishna vs. Bindeshwari Prasad’ in the Court at Dehradun and suit no. 24 of 1973 ‘Sm t. Sripyari Devi vs. Radha Krishna and others’ in the Court of Etah. On adjudication of suit no. 233/ 1970 , the suit no. 24/ 73 was got dism issed. Father of the applicant appeared and contested the said suit. On his death, all heirs of Krishna Gopal, including the applicant were im pleaded as a party to the suit. It was also denied that Krishan Gopal or Sm t. Mahadevi were the heirs of Sm t. Bhagwan Devi, in respect of the property in question. It is stated that neither the predecessors of the petitioner nor he him self has any share in the said property except for one shop, which is subject m atter of sit no. 233 of 1970 . It is alleged that, in fact, the said application has been m oved by the applicant at the instance and in collusion with opposite parties nos. 9,10 and 13. It has further been stated that except Bindeshwari Prasad, no other person was the necessary party to suit no. 24 of 1973 and all the parties in suit no. 24 of 1973 had and shall be presum ed to have knowledge of the suit no. 24 of 1973. Further, each and very person had com plete opportunity to appear in suit no. 33 of 1970 .

#4. The petitioner filed his reply on 19.0 9.20 0 8 against the objection raised by the opposite parties.

#5. The learned 1st Addl. Civil J udge (J r. Div.), vide order dated 5.12.20 0 9 dism issed the application of the petitioner filed by him under Order 21 Rule 99 & 10 0 and Section 47 of C.P.C. with costs of Rs. 50 0 / -. Being aggrieved with the order of Trial Court, the petitioner filed Civil Appeal before the District J udge, Dehradun. The Civil Appeal No. 1 of 20 0 9 cam e up for hearing on adm ission on 0 7.0 1.20 0 9, but the learned Appellate Court deferred the m atter for 19.0 1.20 10 . Aggrieved with the order of Appellate Court, this petition has been filed.

#6. I have heard Shri Neeraj Garg, the learned counsel for the petitioner, Shri Piyush Garg, the learned counsel for the respondents and perused the record.

#7. Learned counsel for the petitioner argued that in Civil Suit No. 233/ 1970 filed by the respondent no.1 against respondent no.7, the petitioner was not m ade party, hence the decree in suit obtained by respondent nos. 1 to 5, at his back, is null and void and the decree is not binding upon the petitioner and no execution can be done against him . He subm itted that the Trial Court has passed the order im pugned ignoring the requirem ents of Order XXI, rule-99 & 10 0 and 10 1 C.P.C. and as the respondent nos. 1 to 5 have obtained possession and by the help of police the petitioner m ay be dispossessed, therefore dispossession of the petitioner to be suspended and the orders dated 5.12.20 0 9 passed by the Trial Court and order dated 0 7.0 1.20 10 passed by the Appellate Court are liable to be set-aside. On the other hand Shri Piyush Garg, the learned counsel for the respondents argued that pedigree given by the petitioner is incom plete and wrong. It is subm itted that the said property was owned and acquired by Munshi Lal and Radha Krishna in the nam e of Heeralal. It has been further subm itted that the question involved in the application is barred by the principles of res-judicata by virtue of the dism issal of Suit no. 24 of 1973 ‘Sm t. Sripyari Devi vs. Radha Kishna and others’ of the Court of Civil J udge, Etah to which the applicant, his father Krishan Gopal and all the heirs of Krishan Gopal and Sm t. Mahadevi D/ o Bhagwan Devi were the parties. It has been further subm itted that the property was owned by Munshi Lal and Radha Krishna and on partition am ongst Munshi Lal and Radha Krishna, the property cam e to the share of Shri Radha Krishna and after his death, the opposite parties are inheriting the sam e. He subm itted that issue with regard to Benam i purchase of property bearing no. 19, Karanpur, Dehradun was the subject m atter in suit no. 233/ 1970 ‘Radha Krishna vs. Sri Bindeshwari Prasad’ in the Court at Dehradun and suit no. 24 of 1973 ‘Sm t. Sripyari Devi vs. Radha Krishna and others’ in the Court of Etah. He subm itted that father of the applicant appeared and contested the said suit. On his death, all heirs of Shri Krishna Gopal, including the applicant, were im pleaded as a party to the suit. It was denied that Krishan Gopal or Sm t. Mahadevi were the heirs of Sm t. Bhagwan Devi. He subm itted that neither predecessors of the petitioners nor he him self has any share in the said property. He further subm itted that except Bindeshwari Prasad, no other person was a necessary party to suit no. 24 of 1973 and all the parties in suit no. 24 of 1973 had and shall be presum ed to have knowledge of the suit no. 24 of 1973. He argued that each and every person had com plete opportunity to appear in suit no. 233 of 1970 , during its pendency. He vehem ently subm itted that the applicant/ petitioner is not en titled to any relief. 8 . Application of the petitioner under Order XXI Rule 99 & 10 0 C.P.C. has been rejected by the 1st Addl. Civil J udge (J r. Div.), Dehradun on 0 5.12.20 0 9 against which appeal is pending before the District J udge. The present writ petition against the order dated 0 5.12.20 0 9 is m isconceived and cannot be entertained. Since, appeal is pending, this Court is not m aking any observation about the m erits of the case. During the course of hearing a certified copy of report of an Am in dated 12.0 1.20 10 has been produced before this Court inform ing the Court that after receipt of order from the Court of Civil J udge (J r. Div.), Dehradun in Execution Case no. 6 of 20 0 7 the decree-holder was inform ed and on

12.0 1.20 10 at 10 :30 a.m . he, alongwith the police P.S. Dalanwala, reached at the disputed property i.e. 19, Karanpur, Dehradun. The respondent/ judgm ent-debtor was absent. After breaking the lock, a list of belongings was prepared and handed over to Devi Prasad-who was present on behalf of decree holder. The vacant position of the property was handed over to decree holder. Thus, in view of the Am in report, order for granting injunction in favour of the petitioner cannot be passed.

#9. In view of above discussion, the writ petition fails and is dism issed accordingly. No order as to costs. 10 . Interim order dated 13.0 1.20 10 passed by this Court stands vacated. NCM: ( V.K. Bis t , J .)

31.0 5.20 10