Rajasthan High Court - Jodhpur
Lalit Kumar Ganeriwala vs Shri Ram Pathya Granthagar Samiti ... on 18 April, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023/RJJD/009749] (1 of 9) [CW-18524/2022]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18524/2022
Lalit Kumar Ganeriwala S/o Late Sh. Govind Prasad Ganeriwala,
Aged About 70 Years, R/o Ratangarh, District Churu (Rajasthan),
Presently Resident Of 66, Pathuria Ghat Street, Kolkatta, West
Bengal.
----Petitioner
Versus
1. Shri Ram Pathya Granthagar Samiti Ratangarh, Through
Its Secretary, Ambika Prasad Sharma, R/o Ratangarh,
Churu, Rajasthan.
2. Seth Jugal Dass Ganeriwala Charitable Trust, Through His
Trustee And (Alleged) General Power Of Attorney Holder
Shri Hanumangarh Prasad Ganeriwala, R/o 16, Shri Ram
Road, Civil Lines, New Delhi.
3. Sushil Kumar Ganeriwala S/o Late Govind Prasad
Ganeriwala, R/o Ratangarh, Churu, Rajasthan.
4. Anil Kumar Ganeriwala S/o Govind Prasad Ganeriwala, R/
o Ratangarh, Churu, Rajasthan.
5. Sushil Kumar Ganeriwala S/o Late Bhagwati Prasad
Ganeriwala, R/o Ratangarh, Churu, Rajasthan.
6. Ishwari Prasad Ganeriwala S/o Late Gulraj Ji Ganeriwala,
R/o Ratangarh, Churu, Rajasthan.
7. Gimal Kishore Ganeriwala S/o Late Basudeo Ganeriwala,
R/o Ratangarh, Churu, Rajasthan.
8. Sangeeta Ganeriwala S/o Late Basant Kumar Ganeriwala,
R/o Ratangarh, Churu, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Subhro Sanyal
Ms. Oshin Sharma for Mr. Shreyansh
Marida
For Respondent(s) : Mr. G.R. Goyal
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 10/04/2023 Pronouncement on 18/04/2023
1. This writ petition has been preferred claiming the following reliefs:
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[2023/RJJD/009749] (2 of 9) [CW-18524/2022] "A. This Hon'ble Court be pleased to issue a writ of certiorari or a writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction and quash and set aside the impugned order dated 27.09.2022 (Annex.3) passed by the Learned Senior Civil Judge, Ratangarh, District Churu, in Execution Suit No.03/2015 - [Seth Jugal Das Ganeriwala Charitable Trust vs. Shri Ram Pathya Granthagar Samiti and Ors.];
B. This Hon'ble Court be pleased to issue a writ of mandamus or a writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction directing the Respondents herein to implead all the original decree holders and or the heirs and successors of deceased decree holders as parties in their application under Order 21 Rule 16 of the Code of Civil Procedure; And thereafter fresh notices in term of Form 7 of Appendix E of the Code of Civil Procedure be issued to all such impleaded original decree holders and or the heirs and successors of deceased decree holders to the application under Order 21 Rule 16 of the Code of Civil Procedure for their appearance; and upon return of rule and after hearing all parties on the application filed by the respondents; fresh orders be passed by the Learned Senior Civil Judge, Ratangarh, District Churu, in Execution Suit No.03/2015 - [Seth Jugal Das Ganeriwala Charitable Trust vs. Shri Ram Pathya Granthagar Samiti and Ors.] on the application under Order 21 Rule 16 of the Code of Civil Procedure;
C. Any other appropriate writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the Petitioner.
D. Cost throughout may kindly be awarded in favour of the Petitioner."(Downloaded on 19/04/2023 at 11:26:38 PM)
[2023/RJJD/009749] (3 of 9) [CW-18524/2022]
2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that on 04.06.1988, father of the present petitioner alongwith 42 others, filed a suit for possession, mesne profits and for wrongful use and occupation of the suit property, against the defendant/judgment debtor-Shri Gram Pathya Granthagar Samiti. The property in question is a piece of land, which was purchased by common ancestors of the parties, on which a Monument 'Chhatri' and rooms were constructed. 2.1. On 09.04.2003, the learned Civil Judge (Senior Division), Ratangarh dismissed the suit of the plaintiffs, and during the pendency of which 08 plaintiffs, including father of petitioner, expired, while the legal heirs of the deceased plaintiffs were not made parties to the said suit. Thereafter, remaining 35 plaintiffs filed an appeal against the aforesaid dismissal. During the pendency of the said appeal 15 more appellants/plaintiffs expired on different dates.
2.1.1. On 29.03.2011, the Addl. District Judge reversed the decree passed by the trial court and allowed the Civil First Appeal, passing the decree for recovery of possession of suit property 'Chhatri' in favour of the plaintiffs/appellants against the respondent/judgment debtor (defendant). The respondent no.1 herein filed S.B. Civil Second Appeal No.265/2011 before this Hon'ble Court against the said judgment and decree dated 29.03.2011. Petitioner-Lalit Kumar and his brothers on 11.02.2014 jointly filed an application for impleadment in the said Civil Second Appeal, and the same was allowed on 22.09.2014. (Downloaded on 19/04/2023 at 11:26:38 PM) [2023/RJJD/009749] (4 of 9) [CW-18524/2022] This Hon'ble Court however, on 09.12.2014 dismissed the appeal with costs and confirmed the decree of possession passed by the learned court below.
2.2. Some of the original plaintiffs and heirs, successors of deceased plaintiffs lost confidence in their power of attorney holder and reposed their confidence in favour of the present petitioner Lalit Kumar and asked him to take possession of the said 'Chhatri' disputed property in question. On 09.02.2015, the present petitioner in his own capacity asked the respondent/ judgment debtor to hand over the possession of the property and to pay mesne profits as well the costs imposed. Thereafter, the respondent no. 1 on 10.03.2015 fully satisfied the decree by handing over the possession and paying Rs. 50,000/- towards costs.
2.3 Subsequently the petitioner filed execution application under Order 21 Rules 1 & 2 read with Section 151 CPC and prayed before the executing court to certify that the aforementioned decree dated 29.03.2011 has been fully satisfied, out of the court. During pendency of the said execution application filed by the present petitioner, Hanuman Prasad Ganeriwal in the capacity of power of attorney holder of trustees of Seth Jugal Dass Ganeriwal Charitable Trust filed a stay application in the said execution proceedings on the ground that an objection application under Order 21 Rule 97-103 and Rule 16 read with Sections 146 and 151 CPC has been filed in respect of the execution proceedings and till (Downloaded on 19/04/2023 at 11:26:38 PM) [2023/RJJD/009749] (5 of 9) [CW-18524/2022] disposal of the said objection application, the execution proceedings may be stayed.
2.4 On 16.04.2015, Sita Ram and 15 other persons jointly filed an application in the execution proceedings and prayed before the learned executing court to array them in the execution application as decree holders and benefits of decree be extended accordingly, and the execution application filed by present petitioner may be rejected.
2.5. Thereafter, the learned executing court dismissed the execution application on 01.08.2015, and the present petitioner being aggrieved of the same, filed a Revision Petition before this Hon'ble Court, which was dismissed on 26.11.2020. Subsequently, on 10.04.2021, the petitioner has preferred an SLP (C) bearing No.6068/2021 before the Hon'ble Supreme Court against the said order dated 26.11.2020, which, as per the averments made in the petition, is pending.
2.6 In the meanwhile, on 24.08.2015, the learned Additional Chief Judicial Magistrate, Ratangarh admitted the execution petition filed by the respondent-Seth Jugal Dass Ganeriwal Charitable Trust and issued a notice to the present petitioner. Subsequently, the learned Senior Civil Judge, Ratangarh had passed the impugned order dated 27.09.2022 directing the execution of the decree, without taking into due consideration the objections raised by the petitioner. Aggrieved thereby, the present petition has been preferred claiming the aforequoted reliefs. (Downloaded on 19/04/2023 at 11:26:38 PM) [2023/RJJD/009749] (6 of 9) [CW-18524/2022]
3. Learned counsel for the petitioner submitted that the impugned order dated 27.09.2022 deserves to be quashed and set aside as the same has been passed without duly considering the evidence and testimony on record, and that, the said order is contrary to the settled principles of law. It was further submitted that the learned Senior Civil Judge also did not take into due consideration the objections taken by the petitioner. 3.1 It was contended that while the order dated 24.08.2015 was passed by the learned court below on the application filed under Order 21 Rule 16 of CPC, the notices of hearing, as required by law, were not served upon the 43 plaintiffs and 7 defendants who were parties in the original decree dated 09.04.2003. 3.2 In addition, the learned court below failed to duly consider that the claim raised by the respondent-Trust and its trustees, in the capacity of decree holders, was not maintainable. Learned counsel asserted that the plaintiffs of the original suit never transferred the disputed property in favour of respondent-Trust or its trustees or Hanuman Prasad, and that, the agreement dated 11.08.1986, pertaining to the disputed property, is a document which is completely based on fabrication and manipulation.
4. On the other hand, learned counsel for the respondents submitted that the petitioner himself along with other plaintiffs of the original decree executed the aforementioned agreement dated 11.08.1986 in favour of Samast Ganeriwala Pariwar Dharmik Sansthan and by the said agreement the Trust was authorized to supervise the said property and take legal action before the Courts (Downloaded on 19/04/2023 at 11:26:38 PM) [2023/RJJD/009749] (7 of 9) [CW-18524/2022] of law against unauthorized occupants on the property in question. Reliance, in this regard, was placed on the order dated 08.03.2019 passed by a Co-ordinate Bench of this Hon'ble Court in Lalit Kumar & Ors. v. Shri Ram Pathya Granthagar Samiti, Ratangarh & Anr. (S.B. Civil Revision Petition No.7/2016) whereby the Hon'ble Court allowed the Seth Jugal Dass Ganeriwala Charitable Trust to be impleaded as a party respondent in the Revision Petition.
4.1 Learned counsel also placed reliance on the order dated 26.11.2020 passed by a Co-ordinate Bench of this Hon'ble Court in Lalit Kumar & Ors. v. Shri Ram Pathya Granthagar Samiti, Ratangarh & Anr. (S.B. Civil Revision Petition No. 7/2016), relevant portion whereof reads as follows:
"The conduct of the petitioners is strange, in as much as, despite being decree holders, instead of filing an application for executing the decree, they on their own, approached the executing court by filing application seeking certification in favour of the judgment debtor regarding the satisfaction of the decree and once they failed in their attempt, essentially to frustrate the right of other joint decree- holders, they have approached this court by filing the revision petition seeking to justify their stand before the executing court which conduct as contended by learned counsel for the Trust, cannot be said to be bonafide."
4.2 It was further asserted that Seth Jugal Dass Ganeriwala Charitable Trust has interest in the property and is thus competent to make an application under Order 21 Rule 16 CPC. Further the (Downloaded on 19/04/2023 at 11:26:38 PM) [2023/RJJD/009749] (8 of 9) [CW-18524/2022] Trust had to implead itself as a party in the Revision Petition; in this regard, reliance has been placed on the judgment rendered by the Hon'ble Apex Court in the case of Bhoop v. Matadin Bhardwaj, AIR 1991 SC 373.
5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar.
6. This Court observes that the petitioner is a decree holder in respect of the disputed property "Chhatri" and went to the executing court to certify that the decree dated 29.03.2011 passed by the learned court below has been fully satisfied. However, Seth Jugal Dass Ganeriwala Charitable Trust through Hanuman Prasad Ganeriwal filed a stay application in the said execution proceedings on 27.03.2015 on the ground that an application under Order 21 Rule 16 filed by the respondent-Trust was pending before the concerned Court below. Subsequently, the application was admitted and notices were sent to the petitioner. Later on, vide the impugned order dated 27.09.2022, as submitted on behalf of the petitioner, the learned Senior Civil Judge directed the execution of the decree.
7. This Court further observes that a part of the disputed property vested in the respondent-Seth Jugal Dass Ganeriwala Charitable Trust, and the same is clear from the agreement, which was executed in favour of the Trust on 11.08.1986. The dispute regarding the Trust property went before the concerned Court below, and during such litigation, certain documents were presented as Exhibits-4 to 16, and the registration certificate (Downloaded on 19/04/2023 at 11:26:38 PM) [2023/RJJD/009749] (9 of 9) [CW-18524/2022] issued by the Devasthan Department was also exhibited as Exhibit-2.
8. In view of the above, this Court does not find any legal infirmity in the impugned order passed by the learned court below so as to warrant any interference therein.
9. Consequently, the present petition is dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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