Delhi High Court
Amar Nath Sharma (Deceased) Thr Lrs vs Bankey Bihari Ji Maharaj (Thakur Ji) on 25 April, 2014
Author: Najmi Waziri
Bench: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25.4.2014
+ CM(M) 386/2014 & CM Nos.7099-7100/2014
AMAR NATH SHARMA (DECEASED) THR LRS
..... Petitioner
Through: Sh. Sukumar Pattjoshi, Sr. Advocate
with Mr.Daram Dev, Advocate
versus
BANKEY BIHARI JI MAHARAJ (THAKUR JI)
..... Respondent
Through: Mr.Ramesh Kumar and Mr.Jos
Chiramel, Advs.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI (Open Court)
1. The petitioner has challenged the order dated 22.03.2014 whereby his objection in the execution petition has been rejected. The decree which forms the basis of the execution petition has already been upheld by the Hon'ble Supreme Court.
2. Mr. Pattjoshi, learned senior counsel submits that there is a doubt about the identity of the property, hence the objections before the Execution Court. He says that the translated copy of the Sale Deed which formed an integral part of the suit, shows that the suit property is different from what was set up in the suit which has been decreed. He states that the Sale Deed which forms the basis of CM(M) 386/2014 Page 1 of 4 recording of the transfer of title was in Urdu and that the translated copy of the same was not available to the Trial Court for appreciating the true identity of the property from which the petitioners are sought to be dispossessed. He submits that the property in the possession of the petitioners is not the same as described in the site plan. He further submits that a suit has been filed in this regard i.e. to ascertain the exact identity of the property in occupation of the petitioner vis-a-vis the decreed property, and till the determination of this factual position the impugned order ought not to be given effect to. He seeks protection of Order 21 Rule 29 CPC.
3. This Court notices that in judgment dated 28.01.2011 in RSA No.101/1986 the present petitioner had crystallised his case which is recorded in para 3 of the judgment:
" Defence of the defendant No.1 was that he is the owner of the suit property. His contention was that Ganga Saran Dass had gifted this property to Makhan Lal in 1901 and thereafter he gifted it to him. His further contention was that Pandit Makhan Lal had occupied ground floor and first floor of the premises. He had made a will dated 11.08.1954 by virtue of which defendant No.1 is owner of the suit property."
4. Quite clearly the petitioner had himself identified the property which was the subject matter of the suit as averred by him and it was so recorded in the aforesaid RSA. Therefore insofar as the suit CM(M) 386/2014 Page 2 of 4 property has been identified by him in the RSA, it is that very property which will be the subject matter of the execution petition. Mr. Jos Chiramel, counsel for the respondent submits that the suit property was identified in the site plan filed alongwith the plaint. The Executing Court would proceed in evicting the petitioner from the suit premises as identified and decreed.
5. Learned senior counsel for petitioner submits that insofar as the execution proceedings are confined to the property mentioned or identified in para 3 of the judgment in the RSA as aforesaid, he would have no objection in the execution proceedings.
6. This Court is of the view that an objection on the merits of the case would be the subject matter of an appeal as provided for under the Code of Civil Procedure. The case was decreed on the basis of the property so identified and contested in the suit. No dispute or doubt was ever raised apropos the identity of the suit premises. The petitioner went through the motion of a complete trial, right from the Trial Court to the High Court and finally till the Supreme Court. He lost all through. And throughout he never questioned the identity of the suit premises. Any such argument at this stage would be untenable. There could be no doubt about the identity of the suit CM(M) 386/2014 Page 3 of 4 premises. Accordingly, the Trial Court is required to proceed in terms of the identification so established.
7. The impugned order restricts itself to the property identified and decreed in the suit. This Court finds that the impugned order does not suffer from any material irregularity warranting interference of this Court in its revisionary jurisdiction. This appeal is without any merit and accordingly dismissed.
NAJMI WAZIRI APRIL 25, 2014 ns CM(M) 386/2014 Page 4 of 4