Delhi District Court
Sh. Sukhjeet Singh vs Union Of India on 12 February, 2008
//1//
IN THE COURT OF SH. DAYA PRAKASH :
ADDITIONAL DISTRICT JUDGE : DELHI
MCA Nos. : 2/07, 3/07, 4/07, 5/07, 6/07, 7/07, 8/07, 9/07 & 10/07
MCA NO.02/2007
Sh. Sukhjeet Singh,
s/o. Late Sh.Lal Singh
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.03/2007
Sh.Bhagwan Singh,
s/o. Sh.Kundan Singh,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1/36
//2//
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.04/2007
Smt. Chanderwati,
w/o. Sh.Kamal Kishore,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.05/2007
2/36
//3//
Sh. Satish Kumar @ Harish Kumar,
s/o. Sh.Ram Kishan,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.06/2007
Sh. Tajuddin,
s/o. Sh.Allauddin,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
3/36
//4//
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.07/2007
M/s.Bena Industrial Corporation,
through its Proprietor Sh.Sat Pal Singh,
s/o. Late Sh.Balwant Singh,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.08/2007
Sh. Dilip Kumar,
s/o. Late Sh.Amar Singh,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
4/36
//5//
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.09/2007
Smt. Fatima Bi
w/o. Saleem,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
MCA NO.10/2007
Sh. Ashok Kumar,
5/36
//6//
s/o. Sh.Risal Singh,
r/o.18/4, Azad Nagar,
Bagh Kare Khan, Delhi-7.
....Appellant
VERSUS
1. Union of India,
service to be effected through
its Secretary, Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The State of Haryana,
through its Executive Engineer,
Canal Department, Delhi Division,
(W.J.C.) (E) Alipur Road,
Delhi.
...Respondents
Date of Institution of the appeals: 09.07.2007
Date on which the judgment has been reserved: 12.12.2007
Date of delivery of judgment: 12.02.2008
JUDGMENT
1. By this common judgment, I shall dispose of the 9 Miscl. Civil Appeals as all these appeals are directed against the common order of the Ld.Civil Judge dt.18.05.2007 by which the Ld.Civil Judge in Execution no.215/2000 had dismissed the applications/objections of the appellants filed u/o. 21 Rule 97 & 99, and Rule 101 CPC and u/s.47 R/w. Section 151 CPC. 6/36
//7//
2. Aggrieved by the order of the Ld. Civil Judge dt.18.05.2007 the appellants have preferred the present appeal.
3. Facts relevant for the disposal of the appeals are that:-
a) Initially the suit no.310/1964 was filed by the DH/UOI and the State of Punjab against 10 defendants for possession of land measuring about 1035 sq. yds. in Khasra no.111, 108 Village Sadhura Khurd, Delhi alongwith damages for use and occupation of said plot, claiming that suit land belonged to plaintiff no.1/UOI and being used by irrigation department plaintiff no.2/State of Punjab and defendants no.2 to 6 trespassed on suit land. The defendant no.1 who claiming himself to be owner of khasra no.109 & 110, executed a lease deed in favour of defendants no.2 & 3 and he instituted a separate suit for ejectment against defendants no.2 & 3 wherein he obtained a decree against them on 16.10.1961.
Ultimately, vide judgment/decree dt.30.04.1968, suit no.310/64 was decreed in favour of plaintiffs and against the defendants for possession of suit land alongwith recovery of 7/36 //8// damages of Rs.5,200/- and costs against all defendants.
b) No appeal against the said judgment/decree dt.30.04.1968 has been preferred by the defendants.
c) After passing of judgment/decree dt.30.04.1968, the State of Haryana being successor of suit land after division of State of Punjab has filed by the execution proceedings.
d) In the said execution proceedings the objections filed by Sh.Gudayal Singh, Sh.Beli Ram; Sh.Prem Nath; Sh.Pran Nath; Sh. Gurdial Singh and Sh.Beli Ram; Sh.Harbhajan Singh; Sh.Pawan Kumar Narang and Sh.Rajeev Narang had already been disposed by the Ld.Predecessor of Ld. Civil Judge vide order dt.18.02.2002.
Against said order an appeal was preferred alongwith Civil Revision Petition and the same were disposed off vide order dt.28.04.2002. Sh.Pawan Kumar Narang had also preferred a Special Leave Petition before Hon'ble Supreme Court of India which was ultimately withdrawn by the objector Sh.Pawan Kumar 8/36 //9// Narang.
e) In the execution petition bearing no.215/2000, the appellants namely Smt.Fatima Bi, Smt. Chanderwati, M/s.Bena Industrial Corporation, Sh.Bhagwan Singh, Sh.Harish Kumar and Sh.Tajuddin, Sh.Dilip Kumar, Sh.Sukhjeet Singh and Sh.Ashok Kumar filed the objections.
f) Smt.Fatima Bi in the objection application stated that she being owner and being in possession of suit land is running the Meat Shop and having the relevant documents of running business in suit land and also having the electricity bill in her name.
g) Smt.Chanderwati in the objection application statedthat she is registered owner of suit land having being purchased from Smt.Sangeeta Khera vide registered Sale Deed dt.16.11.2005. She further stated that electricity connection is also installed in the name of Sh.P.K. Jain and she is in use and occupation of premises for long.
9/36
//10//
h) M/s.Bena Industrial Corporation in the objection application stated that objector is in use, occupation and carrying on the business in the premises since 1982 and is also having electricity connection in its name and its business is also registered with Government of India, Trade Marks Registry against certificate no.146413 under Trade and Merchandise Marks Act, 1958.
i) Sh.Bhagwan Singh in the objection application stated that he is in use and occupation of premises for last several years and is having gas connection, water connection, ration card and election I-card issued in his name.
j) Sh.Harish Kumar in the objection application stated that he is in use and occupation of premises and is having ration card, election I-card and water connection in his name at the said premises.
k) Sh.Tajuddin in the objection application stated that he is in 10/36 //11// occupation and use of disputed property for the last several years and is having MCD license at the said premises. He further stated that he is also paying house tax to MCD and is running Meat Shop at said premises and the same is duly registered under the Provisions of Delhi Shops and Establishment Act.
l) Sh.Dilip Kumar in the objection application stated that his father namely Sh.Amar Singh had acquired the disputed land in the year 1960 and constructed the same and has been in hostile and uninterrupted and continuous possession of said land. It is further stated that he is in possession of land for more than 40 years and execution application is infructuous and time barred as same is pending since 1972 and the decree has not been satisfied since 1972. It is further stated that he is having electricity bills, ration card and election I-card in his name at the said land.
m) Sh.Sukhjeet Singh, s/o.Sh.Lal Singh in the objection application stated that his father is in hostile possession and he was in possession of land for more than 40 years by virtue of 11/36 //12// adverse possession. He further stated that he is carrying out the business in the said premises and MCD has also sanctioned factory license. He further stated that his father had acquired the land in 1967 and has thereafter constructed a super structure in the suit premises. He also stated that execution petition is pending for more than 12 years and therefore is bad in law and is time barred.
n) Sh.Ashok Kumar in objection application stated that his father Late Sh.Risal Singh was the absolute owner of land measuring 33 sq. yds. bearing municipal no.18/4, Azad Nagar, Bagh Kare Khan, Khema Katra, Delhi by virtue of registered sale deed dt.13.12.71 and after death of his father in the year 2001, he acquired the ownership of land by operation of law. It is further stated that he is in continuous possession of land since 1971. It is further stated that his father was also running a shop on the ground floor and same was registered under Delhi Shops and Establishment Act. It is also stated that objector is having electricity connection in his name and possession of objector is 12/36 //13// adverse qua the respondents. Objector also stated that execution petition is pending for more than 12 years and therefore is bad in law and is time barred.
o) In common reply it is stated by the respondent that none of the objector is a J.D. and none of them has claimed to be in possession of suit land through any of the JD/previous objector; that objectors are the illegal occupants; that objectors are also bound by the order passed in EFA no.2/02 and CRP no.369/02 and that the orders passed by the Ld. Predecessor of Ld. Civil Judge dt.18.02.2002 has become final.
p) After hearing the arguments, the Ld. Civil Judge vide common order dt.18.05.2007 had dismissed the objections filed by the appellants stating that in view of judgments cited in AIR 1970 SC 1475 and 1998(003), SOC-07 23-SC, the parties to the suit can raise objections u/s.47 of CPC only the limited extent of challenging the decree as 'nullity' whereas the third party can be entertained only under rule 101 of Order 21 of CPC, if a legally 13/36 //14// maintainable question arises and that too a detailed enquiry is not needed; that the order of Ld. Predecessor of Ld. Civil Judge as well as orders/judgments of Hon'bleHigh Court of Delhi in EFA no.2/02 & CRP no.369/02 discussed the previous objection in great detail and the present objectors have not raised any fresh or new objections, so as to deny the decree holder its legal rights; that objectors Smt.Fatima Bi, M/s.Bena Industrial Corporation, Sh. Bhagwan Singh, Sh.Harish Kumar, Sh.Tajuddin have failed to place on record any documents regarding the ownership of disputed land and have also failed to clarify as to how said objectors have become owners of disputed property and that in view of judgment of Hon'bleSupreme Court in case titled as Silverline Forum Pvt. Ltd. Vs.Rajiv Trust & Anr.(SUPRA), the question of ownership/title of the objectors Sh.Deepak Kumar and Sh.Sukhjeet Singh by virtue of adverse possession is not to be decided by Civil Court in the present proceedings.
q) Aggrieved by order of the Ld. Civil Judge dt.18.05.2007 the objectors/appellants have preferred the present appeals. 14/36
//15//
4. In appeal no.MCA/2/07, the appellant Sh.Sukhjeet Singh states that father of appellant acquired the land in 1957 measuring about 75 sq. yds. bearing municipal no.18/4, Azad Nagar, Katra Khema, Bagh Kare Khand, Delhi and constructed the super structure over the same and running a factory from the disputed land. It is stated that MCD sanctioned the factory license in favour of appellant. It is stated that appellant and his father was in hostile, uninterrupted and physical possession of the land from the last more than 40 years and has never been interfered with the respondents and in as much as appellant has become absolute owner and in possession of disputed land by virtue of adverse possession. It is stated that neither the appellant nor his father was a party to the decree in execution and he has claimed his right and interest in the property being in absolute possession of the same and independent to the parties of decree under execution. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground 15/36 //16// that he could not be dispossessed and the warrants of possession, if any, issued against his premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
5. In appeal no.MCA3/07, the appellant Sh.Bhagwan Singh states that since appellant being the owner in respect of the land under his possession on his own rights being in continuous possession of the same since long time, nobody interfered with his possession including the respondents. The absolute possession of appellant is proved through Indane Consumer Regn. Slip in appellant'sname; Slip in appellant'sname and a notice issued by office of Controller of Weights and Measures, CPO Bldg., Kashmiri Gate, Delhi and Election I-Card of appellant and his wife which are placed on trial court record. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the 16/36 //17// application filed u/o.21 Rule 98 CPC on the ground that he could not be dispossessed and the warrants of possession, if any, issued against his premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
6. In MCA no.4/07, the appellant Smt.Chanderwati stated that she is registered owner of land measuring 195 sq. fts. Approx. bearing municipal no.18/4, Azad Nagar, Bagh Kare Khan, Delhi, by virtue of registered sale deed dt.16.11.2005 which she has purchased from Smt.Sangeeta Khera and said accommodation under her absolute possession comprise of one room at ground floor and one room on second floor with its right to the sky with electricity and water connection. It is stated that appellant was not a party to the decree and the same is not binding upon the appellant. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought 17/36 //18// to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground that she could not be dispossessed and the warrants of possession, if any, issued against her premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
7. In MCA-5/07, appellant Sh.Satish Kumar @ Sh.Harish Kumar states that he is in hostile and in uninterrupted possession in respect of the land adverse to the respondent since more than 30 years on land under his absolute possession and he has also built superstructure on this land and he is residing therein with his family members. The copy of ration card, election I-Card and Delhi Jal Board Water Bill which are on trial court record proves the absolute possession of appellant. It is stated that appellant was not a party to the decree and the same is not binding upon the appellant. It is stated that impugned judgment/decree 18/36 //19// dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground that he could not be dispossessed and the warrants of possession, if any, issued against his premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
8. In MCA no.6/07, appellant Sh.Tajuddin states that he is in absolute possession of land wherein he has constructed a pucca shop and running therein the business of selling meat. It is stated that appellant is in hostile and uninterrupted possession of the disputed land adverse to the real owner and more particularly the respondent since last more than 30 years. It is stated that receipt of license fee in respect of meat shop issued by MCD, house tax receipt, registration certificate of his shop, a summon dt.24.11.1983 issued in name of appellant by the Court of Sh.A.S. 19/36 //20// Yadav, the then MM, Delhi, in the trial court record shows that appellant is the absolute owner of disputed land. It is stated that appellant was not a party to the decree and the same is not binding upon the appellant. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground that he could not be dispossessed and the warrants of possession, if any, issued against his premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
9. In MCA no.7/07, appellant M/s.Bena International Corporation states that appellant is in absolute possession of the premises since 1979. The certificate of registration of trade mark dt.27.07.1979 and the bills of electricity connection in the name of firm, which are placed on trial court record, proved the absolute 20/36 //21// possession of appellant. It is stated appellant is in hostile and uninterrupted possession of disputed land since 1979. It is stated that appellant was not a party to the decree and the same is not binding upon the appellant. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground that firm could not be dispossessed and the warrants of possession, if any, issued against its premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
10. In MCA no.8/07, appellant Sh.Dalip Kumar states that appellant is in possession of disputed land and is the owner of the land measuring 22 sq. yds bearing municipal no.18/4, Katra Khema, Azad Nagar, Delhi. It is stated that father of appellant Sh.Amar Singh had acquired and took the possession of disputed 21/36 //22// land in the year 1960 and constructed the superstructure thereon. It is stated that father of appellant has been in hostile, uninterrupted and continuous possession of the same alongwith the appellant and said possession is adverse to respondents. It is stated that appellant was not a party to the decree and the same is not binding upon the appellant. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground that he could not be dispossessed and the warrants of possession, if any, issued against his premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
11. In appeal no.MCA-9/07, appellant Smt.Fatima Bai states that she is in possession of disputed premises and she is running the business of meat shop in the premises. Receipts issued by 22/36 //23// MCD in respect of Veterinary Trade License Proceeding Fee, Receipt for payment of Fine, payment of House Tax Receipt as well several receipt for payment of fine u/s.397/357 DMC Act, Electricity Bills and its receipt, DJB Water Bill etc. which are placed on trial court record proved the absolute possession of appellant. It is stated that she is owner in her own rights being in continuous possession of the premises for so many years and nobody interfered with her possession. It is stated that appellant was not a party to the decree and the same is not binding upon the appellant. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground that she could not be dispossessed and the warrants of possession, if any, issued against her premises be quashed. It is stated that judgments relied by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
23/36
//24//
12. In MCA no.10/07, appellant Sh.Ashok Kumar states that his Late father Sh.Risal Singh was the absolute owner of the land measuring 33 sq. yds bearing municipal no.18/4, Azad Nagar, Bagh Kare Khan, Khema Katra, Delhi by virtue to registered sale deed dt.13.12.71. The father of appellant died in 2001 and after his death appellant had acquired the ownership rights of his father by operation of law and since then his in continuous possession of the same. House Tax payment receipts; electricity connection and registration certificate issued under Delhi Shops & Establishment Act for running the shop in the disputed premised by the appellant, which are on trial Court record, proved the ownership of appellant. It is stated that appellant was not a party to the decree and the same is not binding upon the appellant. It is stated that impugned judgment/decree dt.18.05.2007 ought be set aside because Executing Court ought to have considered the objection of the application filed u/o.21 Rule 98 CPC on the ground that he could not be dispossessed and the warrants of possession, if any, issued against his premises be quashed. It is stated that judgments relied 24/36 //25// by the Executing Court are not applicable to the present case of the appellant. Accordingly, it stated by the appellant that impugned judgment/decree dt.18.05.2007 be set aside and objections filed by the appellant be allowed.
13. Arguments on appeal heard.
14. As per advocate of appellants, appellants are in possession of the suit property. It is further stated that since appellants are in possession, every obstruction starts fresh cause of action and merely because previous application/objection was dismissed it will not preclude the present appellants to file the objections or appeals. Advocate of appellant further states that appellants are neither JD'snor claiming through any JD. They have independent right and title to be protected. Advocate of appellants further states that possession of the appellants is since last 40 years and hence by way of adverse possession appellants have become owner of disputed land to the extent of their shares. It is further stated by advocate of appellants that morethan 12 25/36 //26// years have been lapsed since filing of the execution petition and now execution application is become infructuous and time barred and cannot be executed at all. Advocate of appellant further states that neither the appellant nor their father was party to the decree and hence not binding to them. It is further stated that objections were not adjudicated properly u/o. 21 Rule 97 & 99, and Rule 101 CPC. Hence, impugned order dt.18.05.2007 is bad.
In the course of arguments advocate of appellants cited AIR 1998 SC 1827; AIR 1998 Delhi 2; AIR 2002 SC 3083; AIR 1996 SC 2050; AIR 2003 Karnataka 251; AIR 1997 SC 856 and 57 (1995) Delhi Law Times 321(SC).
15. On the otherhand advocate of respondent states that objections filed by the appellants are not maintainable. Earlier suit was filed in 1960 which was decreed in 1968. Previously objections were filed and disposed by the Ld.Executing Court and thereafter appeal/revision was filed before the Hon'bleHigh Court of Delhi and then to the Hon'bleSupreme Court unsuccessfully. Now present objectors have filed the present objections claiming 26/36 //27// different title and separate interest. It is further stated by advocate of respondent till todate the original decree has not been challenged and it is undisputed that DH are owners of the suit property. Advocate of respondent further states that some of the objectors have claimed owners by way of sale. How a sale can took place after decree wherein DH held to be owners? It is further stated that after decree there cannot be any adverse possession. It is further stated by advocate of respondent that merely there was transfer or creation of third party interest after judgment and during pendency of the execution, such transfers are without any title. Hence, it is stated that the objections were rightly dismissed by the Ld. Trial Court and similarly all the appeals is on merits be dismissed.
16. I have seen trial court record, grounds of appeals, all appeal files, impugned order and all documents on record and feel that all 9 appeals filed by the appellants be dismissed on the following grounds apart from those stated in the impugned order dt.18.05.2007:-
27/36
//28// firstly, the DH/plaintiff had initially filed the suit for possession bearing suit no.310/1964 with respect to Khasra no.111, 108 Village Sadhura Khurd, Delhi. The suit was ultimately decreed on 30.04.1968. File shows that the defendants at that time were Sh.Kheman Ram, Sh.Beli Ram, Sh.Haveli Ram, Sh.Harke Ram, Sh.Man Singh, Sh.Hazarilal, Sh. Gurdial Singh, Sh.Ram Saran, Sh.Naranjan Singh and Sh.Prem Nath. Against decree dt.30.04.1968 no appeal or revision was filed. Hence, decree become binding on the parties.
When DH filed the execution, objections from some of the defendants/JD'swere received. The objectors in first objections were Sh.Gurdial Singh, Sh.Beli Ram, Sh.Prem Nath, Sh.Harbhajan Singh, Sh.Pawan Kumar Narang and Sh.Rajeev Narang. The Ld.Executing Court framed issues and ultimately dismissed the objections of these objectors vide order dt.18.02.2002. Appeal against this order was disposed by the Hon'bleHigh Court of Delhi and S.L.P. was dismissed by the Hon'ble Supreme Courton 05.01.2007.
28/36
//29// Secondly, now present objectors i.e. Smt.Fatima Bi, Smt.Chanderwati, M/s.Bena Industrial Corporation, Sh.Bhagwan Singh, Sh.Harish Kumar, Sh.Tajuddin, Sh.Dilip Kumar, Sh.Sukhjeet Singh and Sh.Ashok Kumar stated that they are owners and in possession of the disputed land. Objector Sh.Dilip Kumar stated that his father Sh.Amar Singh acquired the disputed land in his possession in the year 1960. Objector Sh.Sukhjeet Singh stated that his father is in possession and ultimately he is in possession of disputed land since last 40 years. Objector Sh.Ashok Kumar stated that his father Sh.Rishal Singh became owner by purchase on 13.12.1971. I may be noted that almost all the defendants in the original suit are either died or left the disputed premises.
Thirdly, it is a fact and proved on record that DH are owners of the disputed land. It is further a fact that DH has not created any title in favour of the present objectors or their predecessor-in-interest. How they have became owners, has not been explained.
29/36
//30// Unless a person purchases the property from the recorded owner and received the possession from that recorded owner, he cannot be called owner in possession.
Any purchase or sale against the decree is not valid in the eyes of law.
It is well established that Executing Court cannot go behind the decree between the parties or their representatives as the Executing Court must take the decree according to its tenor, and cannot entertain any objections that the decree was incorrect in law or on facts until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties (AIR 1970 S.C. 1475).
Fourthly, an objector can raise the objections u/s.47 of CPC only to the limited extent by challenging the decree as ' nullity' .
None of the objector has filed any proceeding/suit to declare the Decree dt.30.04.1968 being 'nullity'.
Fifthly, the Ld. Executing Court has recorded a fact that the objector Smt.Fatima Bi, M/s.Bena International, 30/36 //31// Sh.Bhagwan Singh, Sh.Harish Kumar and Sh.Tajjudin have failed to place on record any document regarding their ownership on the disputed land and they have also failed to file as to how these objectors have become owners of the disputed land. They also failed to show that they received possession from lawful owners.
Sixthly, objectors Sh.Deepak Kumar and Sh.Sukhjeet Singh claimed right and interest by virtue of adverse possession. I feel to claim tile or interest by way of adverse possession is not applicable in execution petition since adverse possession should be hostile and without challenge. Once there is a decree the plea of adverse possession cannot be taken.
Seventhly, objectors have also taken the objection that they were not party to the original suit baring no.310/64 and therefore, judgment/ decree dt.30.04.1968 is not binding on them. The Ld. Executing Court has taken note to Section 52 of Transfer of Property Act. Similarly u/o.21 Rule 101 of CPC whenever transfer is made during pendency of suit or execution the 31/36 //32// resistance of such person are not just.
Eighthly, the original suit was filed in 1964 and decreed in the year 1968. None of the present objector or their predecessor in interest were party to that suit. The suit was filed by the plaintiff/ DH on the ground that the defendants were in illegal possession of the suit property. This shows that the present objectors or their predecessor in interest were not in possession at the time of filing of the suit in the year 1964. Subsequently, execution proceedings were started Sh.Gurdial Singh, Sh.Beli Ram, Sh.Prem Nath, Sh.Harbhajan Singh filed objections in the year 1975 and Sh.Pawan Narang and Sh.Rajiv Narang filed objections in the year 1999. This further shows that neither the present objectors or their predecessor in interest were in possession of the suit property at that time. Had present objectors being in possession they or their predecessor in interest could have definitely filed the objections in the year 1975 or in the year 1999.
Ninthly, Fatima Bi made objection that she is owner being 32/36 //33// in possession of the disputed land. She cannot be owner of the suit property since vide decree dt.30.04.1968 it is held that plaintiff /DH are owners of the suit property. She was also not in possession at the time of execution proceedings in the year 1975 or in the year 1999 when the objectors at that time filed objections.
Tenthly, Smt. Chanderwati stated that she is registered owner being purchased from Smt.Sangeeta Khera in the year 2005 through Sale Deed and she also have electricity connection. Any Sale Deed inconsistent with the Decree dt.30.04.1968 is on the face of it unlawful and illegal. Since the alleged sale deed is of the year 2005 that have no effect in the eyes of law.
Eleventhly, M/s.Bena Industrial Corporation filed objections that they are in use, occupation and carrying on the business in the premises since 1982. Had they been in possession since 1982 they could have definitely filed objections when other objectors filed objections in the year 1975 or in the year 1999. 33/36
//34// Twelvethly, Sh.Bhagwan Singh and Sh. Harish Kumar made objections that they are in use and occupation of premises for last several years. This is a vague statement and merely having gas and water connection, Ration Card and Election I-Card does not prove the ownership.
Thirteenthly, Sh.Tajuddin also claimed that he is in use and occupation of the disputed land for last several years. This is also a vague statement and merely because MCD Licence and payment of property tax to the MCD does not make him owner.
Fourteenthly, Sh.Dilip Kumar made objection that his father Sh.Amar Singh had acquired the disputed land in the year 1960 and constructed the same. Had this being the case then definitely he could have one of the defendant in suit no.310/64. It is a fact that neither he nor his father filed any objection alongwith other objectors in the year 1975 or in 1999.
Fifteenthly, Sh.Sukhjeet Singh, s/o.Sh.Lal Singh stated 34/36 //35// that his father is in hostile possession for more than forty years and being in adverse possession they are owners. It is a fact that neither he nor his father was defendant in the suit filed in the year 1964 which was decreed in 1968 and neither he nor his father was objector alongwith other objectors in the year 1975 and 1999.
Sixteenthly, Sh.Ashok Kumar made objection that his father Sh.Rishal Singh was owner by virtue of Sale Deed dt.13.12.1971. Sale Deed was executed after decree of the suit a and execution of sale deed inconsistent with the decree. Had he or his father in possession then definitely they could have filed objections alongwith other objectors in the year 1975 or in the year 1999.
Lastly, the fact remains that none of the objector has derived any title from the DH nor possession from DH/registered owner.
17. In view of above, all the appeals i.e. MCA 2/07, 3/07, 35/36 //36// 4/07, 5/07, 6/07, 7/07, 8/07, 9/07 & 10/07 filed by the appellants namely Smt.Fatima Bi, Smt.Chanderwati, M/s.Bena Industrial Corporation, Sh.Bhagwan Singh, Sh.Harish Kumar, Sh.Tajuddin, Sh.Dilip Kumar, Sh.Sukhjeet Singh and Sh.Ashok Kumar stands dismissed.
18. TCR attached with MCA no.2/07 be sent back to the Ld. Trial Court with copy of this judgment.
19. All appeal files be consigned to record room.
Announced in open Court DAYA PRAKASH
today on dated 12.02.2008 ADDITIONAL DISTRICT JUDGE
DELHI
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