Himachal Pradesh High Court
Jagdish Chand Dhawan And Others vs Murari Lal Dhawan on 20 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 145 of 2006
Date of Decision: 20.5.2016.
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______________________________ _____________________________
[
Jagdish Chand Dhawan and others .........Petitioners.
Versus
Murari Lal Dhawan ............Respondent.
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? No.
For the petitioners:
rt Mr. G.R. Palsra, Advocate.
For the respondent: Mr. R.L. Chaudhary, Advocate.
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Sandeep Sharma, J. (Oral).
By way of present civil revision petition filed under Section 115 CPC, the petitioners herein have assailed the order dated 2.9.2006, passed by the learned Civil Judge (Sr. Div.), Mandi, H.P., in Objection Petition No. 10/2006 filed in Execution No. 4 of 2004, whereby the petition was allowed and fresh warrant of possession was ordered to be issued for delivery of possession of the room of first floor existing over khasra No. 69/1 area 9.68 square meters situated in Mauja Muhal Mangwain Tehsil Sadar, District Mandi, H.P., as is shown in tatima prepared by the learned Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:24:44 :::HCHP -2-local Commissioner, which has been formed part of the final decree.
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2. Perusal of the record reveals that respondent-decree holder filed suit for possession by partition against the present petitioner-judgment debtors, wherein preliminary decree was passed on 10.8.2001 in Civil Suit No. 108/97. Subsequent to of passing of decree, land was partitioned on the spot and final decree was passed. In the partition, khasra No. 69/1 measuring rt 9.68 sq. meters was allotted to the respondent-decree holder out of the total land measuring 48.15 sq. meters as he had 1/5th share in the total land, whereas remaining suit land measuring 38.47 sq.meters was allotted to the petitioners-JDs who had 4/5th share in the total land. It also appears that after passing of final decree, respondent-decree holder filed execution petition in the learned trial Court for possession of Khasra No. 69/1 measuring 9.68 sq. meter which was to be delivered to him on 8.12.2005 by Bailiff of the court pursuant to the issuance of warrant of possession issued by the learned trial Court. But respondent decree holder filed objection to the possession given by the Bailiff in the learned trial Court in terms of warrant of possession dated 8.12.2005 on the ::: Downloaded on - 15/04/2017 20:24:44 :::HCHP -3- ground that, though, on 8. 12.2005, Bailff of the court visited the spot and delivered the possession of the room on the ground floor .
of Khasra No. 69/1 but he failed to deliver the possession of room on the first floor since as per decree, he was to be awarded possession of whole khasra No. 69/1. Bailiff was asked by decree holder on the spot to deliver the possession of the room situated of on the first floor but same was not delivered. Respondent in his objection submitted that decree of the court is quite clear and as rt per decree of the court, he being decree holder, was to be awarded possession of whole of the khasra No. 69/1. He also stated that since at the time of the drawing of final decree, whole of the property was partitioned and wherein khasra No. 69/1, was exclusively awarded in his share and as such he was supposed to get possession of the room on the first floor. He also stated that even before the filing of the suit for the partition, he was in possession of room in ground floor. Record further reveals that pursuant to the objections filed under Section 47 CPC by the respondent , the executing Court passed order dated 2.9.2006, whereby while allowing the objections, fresh warrant of possession was ordered to be issued for delivery of possession of the room of ::: Downloaded on - 15/04/2017 20:24:44 :::HCHP -4- the first floor existing over khasra No. 69/1 area measuring 9.68 sq.meters.
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3. Feeling aggrieved with the order dated 2.9.2006, passed by the learned executing Court, petitioner filed present revision petition on the ground that in terms of partition, respondent was only entitled to land measuring 9.68 sq.meters in of Khasra No. 69/1 and remaining land measuring 38.47 sq.meters was to be allotted to the petitioner-judgment debtor. The rt petitioner also stated that decree holder now wants the whole possession of 14.8 sq meter of the room on the first floor, which is contrary to the final decree passed by the learned trial Court ,whereas respondent is only entitled to land 9.68 sq.menter from khasra No. 69/1 as per final decree passed by the court below. It is further averred in the petition that the total area of Khasra No. 69/1 is 18.00 and out of the same, decree holder wants 5.2 sq. meter land from judgment debtors and this aspect of the case has not been considered by the executing Court and as such the impugned order is liable to be quashed and set-aside.
4. Petitioner along with the revision petition, has placed on record copy of the objection petition filed under Section 47 ::: Downloaded on - 15/04/2017 20:24:44 :::HCHP -5- CPC by the present respondent, copy of tatima prepared by the learned Local Commissioner, report of the Bailiff, report of Patwari .
and copy of the Jambandi for the year 1999-2000. Perusal of the objection petition filed under Section 47 CPC clearly suggests that the present respondent-decree holder had only demanded the possession of land/room in terms of report submitted by the of learned Local Commissioner, in whose presence, the partition took place and wherein khasra No. 69/1 was exclusively awarded rt in the share of the decree holder and he was supposed to get possession of the same. Since room on the ground floor was already in the possession of the decree holder even before the filing of the suit for partition, he was entitled to have possession of the room situated on the first floor, which was refused at the time of delivery by the Bailiff. It is undisputed that decree holder i.e. respondent was to be given possession of Khasra No. 69/1 area measuring 9.68 sq. meters including property situated over khasra No. 69/1 area measuring 9.60 sq.meter but Bailiff only handed over the possession of Khasra No. 69/1 measuring 9.68 sq. meter including the ground floor of the room, which was admittedly in the possession of the respondent before partition. But fact ::: Downloaded on - 15/04/2017 20:24:44 :::HCHP -6- remains that he was not handed over possession of first floor as was shown by the learned Local Commissioner to the Court at the .
time of the partition. The learned Local Commissioner was appointed by the court to suggest the mode of partition before passing final decree of the partition. As per report of Local Commissioner, land/property comprised in khasra No. 69/1 of measuring 9.68 sq.meters was to be allotted to the respondent-
decree holder and no objection whatsoever, to the report filed by rt the learned Local Commissioner, were ever filed by the present petitioner before the passing of final decree and as such, report of the learned Local Commissioner, which was found on record, has attained finality. Hence, finding returned by the executing Court that objection filed by the petitioner is fully maintainable, as Bailiff failed to hand over the possession of Khasra No. 69/1 including structure existing over the first floor covered above the area i.e. measuring 9.68 sq.meters. Since as per agreed terms, respondent was to be given possession of land Khasra No. 69/1 measuring 9.68 sq. meter out of whole of khasra No. 69.1, he was also entitled to have possession of structure existing in the first floor ::: Downloaded on - 15/04/2017 20:24:44 :::HCHP -7- above the area measuring 9.68 sq.meters on the ground floor, which was already in his possession before partition.
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5. Hence, this Court sees no reason to interfere in any manner, to the order dated 2.9.2006 passed by the executing Court, whereby the possession has been ordered to be issued for delivery of possession of the room at the first floor existing over of khasra No. 69/1 area measuring 9.68 sq. meters situated in Muhalla Mangween Mandi Tehsil Sadar, District Mandi, HP, as rt shown in tatima prepared by the learned Local Commissioner, which has admittedly merged in the final decree passed by the court in CS No. 108/97.
6. In view of the aforesaid observations, this revision petition is dismissed being devoid of merit and order dated 2.9.2006, rendered by learned Civil Judge (Sr. Div.) Mandi, is upheld.
20th May, 2016 (Sandeep Sharma),
manjit Judge.
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