Delhi High Court
Gauri Shankar vs Hari Shankar @ Nanu & Anr. on 15 September, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex. F.A. No.23/2014
% 15th September, 2014
GAURI SHANKAR ......Appellant
Through: Mr. Dushyant Swaroop, Advocate
with Mr. P.K. Mittal, Advocate.
VERSUS
HARI SHANKAR @ NANU & ANR. ...... Respondents
Through: Mr. Lalit Gupta, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
Caveat No.801/2014
1. Counsel appears for the caveator and thus the caveat stands discharged.
+ Ex. F.A. No.23/2014 and C.M. No.15238/2014 (stay)
2. The challenge by means of this execution first appeal is to the order of the trial court dated 21.7.2014 by which objections filed by the petitioner/objector challenging execution of the judgment and decree passed EFA No.23/2014 Page 1 of 4 by the civil court dated 31.5.2010, and confirmed in the first appeal by this Court on 22.9.2011, have been dismissed.
3. The facts of the case are that the respondent no.1 herein had filed a suit for partition against his brother- the respondent no.2 herein, with respect to the property bearing no.6178-80, Gali Shiv Mandir, Fatehpuri, Delhi-110006. A preliminary decree was passed on 8.12.2005 declaring the share of respondent no.1/plaintiff as 4/5th and that of respondent no.2/defendant as 1/5th. An appeal against the preliminary decree filed by the respondent no.2 herein (defendant in the suit) was dismissed by this Court in RFA No. 657/2006 vide judgment dated 24.5.2007. Thereafter, a final decree for partition was passed on 31.5.2010 and which too was again challenged in an appeal before this Court by the respondent no.2, and this appeal being RFA No.462/2010 titled as Shiv Shanker Vs. Hari Shankar @ Nanu was also dismissed by this Court by confirming the shares as per the preliminary decree but changing the portions of the suit property which were to fall inter-se the respondents, and who were the parties to the suit for partition. This judgment and decree passed by the High Court dated 22.9.2011 became final and the same was thereafter sought to be executed by the respondent no.1/decree holder, and in which execution proceedings, EFA No.23/2014 Page 2 of 4 the petitioner who is the son of the respondent no.2 herein, filed the subject objections which have been dismissed by the executing court.
4. The trial court after noting the aforesaid facts holds that the petitioner has no independent right to remain in possession of the suit property, and once there is no independent right/title, the objector cannot stay in the suit property by objecting to the execution of the decree.
5. I have gone through the objections, which have been filed from pages 67 to 71 of the paper book, and nowhere in the same an independent title to the suit property is pleaded. Admittedly, the suit property belonged to the mother of the respondents i.e late Smt. Laxmi Devi. The sister of the respondents had already executed registered relinquishment deed giving up her share in the suit property in favour of the respondent no.1 herein/brother. Accordingly, the preliminary decree gave 4/5th share in the suit property to the respondent no.1 and only 1/5th share in the suit property to the father of the objector/respondent no.2. Petitioner has no independent title and nor is any title pleaded in the objections, and obviously which is because once the property was of the grandmother Smt. Laxmi Devi, the grandson will not have any right in the property once Smt. Laxmi Devi died leaving behind her own children - two of the children being the two sons and who are EFA No.23/2014 Page 3 of 4 respondents to this petition, and they were the plaintiff and defendant in the suit for partition.
6. In view of the above, there is no merit in this petition, and the objections, and which is/are hence dismissed. Petitioner is obdurately causing obstruction in execution of the judgment and decree, and therefore these objections are dismissed with costs of Rs.20,000/- and which costs shall be paid within six weeks from today.
VALMIKI J. MEHTA, J SEPTEMBER 15, 2014 Ne EFA No.23/2014 Page 4 of 4