Uttarakhand High Court
Teerath And Another vs Iind Additional District Judge Roorkee ... on 24 August, 2016
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Writ Petition (M/S) No. 2330 of 2016
(Under Article 226 of the Constitution of India)
Teerath & Another ............ Petitioners
versus
II Additional District Judge Roorkee & Others
......... Respondents
Mr. Pradeep Kumar Chauhan, Adocate, present for the writ petitioners.
Mr. Navneet Kaushik, Advocate for respondent no. 2.
U.C. Dhyani, J. (Oral)
By means of present writ petition, the petitioners seek following reliefs, among others:
"(i) A writ, order or direction in the nature of certiorari setting aside the order dated 17.8.2016 passed by II Addl.
District Judge, Roorkee, District Haridwar in Misc. Case no. 9 of 2016, Kaliram & Others vs. Anil Kumar and Others.
(ii) A writ, order or direction in the nature of mandamus restraining the respondent no. 2 from interfering in the property of petitioner being khasra no. 170 (new) and 133 (old) measuring 0.07000 hectare situated in Village Saidpura Tehsil Roorkee during the pendency of the present writ petition."
22. The facts giving rise to the present writ petition are as follows:
The petitioners are the recorded tenure holder of the land bearing khasra no. 170 measuring 0.0700 hectare situated in Village Saidpura Tehsil Roorkee, which was earlier recorded in the name of Nandu who had four sons namely Kishna, Bishambar, Harmal and Patram and khasra no. 133 of khata no. 24 measuring 0.133 Hectare and 0.123 Hectare in total 0.256 hectare of land situated in Village Saidpura was recorded in their name since 1360 fasli in capacity of sankramaniya bhumidar having transferable rightstheir and after consolidation proceeding the new khasra no. 170 was made and the land is recorded in the name of petitioners. It is pertinent to mention here that the consolidation proceeding came to an end in the year 1998.
The respondent no. 2 filed a suit no. 117 of 2008 before the court of Civil Judge (SD) Roorkee for a decree of permanent prohibitory Injunction in respect of khasra no. 133 Village Saidpura and surprisingly did not implead any person who had title in the land or from whom the respondent no. 2 allegedly acquired the title, namely Patram s/o Nandu. The main pleading of the suit was that the land was recorded in the name of Patram s/o Nandu and respondent no. 2 purchased the same from him and got the sale deed executed by paying a sale consideration of Rs. 25,000/- on 13.6.1998. The petitioner got impleaded in the suit and filed Written statements and the suit of respondent no. 2 was dismissed on 03.01.2014.
According to learned counsel for the petitioner the land was of ZA and the Patram was a scheduled caste and the alleged sale deed is unregistered barred by section 17 of registration Act and effect of non registration is provided in section 49 of the registration Act.
The respondent no. 2 filed an appeal no. 06 of 2014 which was allowed exparte on 28.02.2015. It is the case of petitioners that petitioners were not served the summons in the appeal, and when they filed objections in execution proceeding, thereafter suffered injuries and could not file the application to recall the exparte order passed in appeal.
3The respondent no. 2 moved an execution no. 09 of 2015 for decree passed in his favour and a show cause notice was served upon the petitioners under the provisions of Order 21 Rule 32 of CPC, and petitioner appeared and filed the objections under section 47 CPC on 13.01.2016, to which the petitioners filed objections on 24.02.2016.
The respondent no. 2 filed a writ petition no. 448 of 2016 concealing the fact that decree passed in his favour is pending execution before the competent court and short circuited the process for execution of a decree, and the writ petition was disposed of by this Hon'ble Court on 27.02.2016.
The respondent no. 2 thereafter moved a contempt petition no. 95 of 2016 and the Hon'ble Court was pleased to pass the order dated 01.4.2016 directing the authority concerned to comply with the order dated 27.02.2016 failing which an appropriate action under contempt of Courts Act would be initiated.
Petitioners approached this Hon'ble Court and filed a review application no. 402 of 2016 which was withdrawn with a liberty to move for appropriate relief before the appropriate forum.
The respondent no. 2 filed a writ petition no. 1932 of 2016 without bringing on record any document of ownership of khasra no. 170 and obtained order, and the writ petition was disposed of by this Hon'ble Court on 15.7.2016.
The petitioners approached this Hon'ble High Court in writ petition no. 2218 of 2016 challenging the acts of respondent no. 2 & Others, whereby the SDM under the garb of undertaking given before this Court was not taking any action on the constructions being raised on the property of petitioners which was dismissed as not maintainable, however the Hon'ble was pleased to protect the applicants during the pendency of the writ petition.
The petitioner moved a review application in writ petition no. 1932 of 2016 for reviewing the order dated 15.7.2016 which is pending consideration before this Hon'ble Court.
4The respondent no. 2 moved an execution no. 08/2015 which is pending before the competent court and objection u/s 47 CPC are yet to be decided.
The petitioner moved an application under Order 41 Rule 21 and Section 151 of CPC and stay application before the II Addl. District Judge. The application is pending disposal, and stay application is dismissed.
Hence this writ petition.
3. After arguing the writ petition at some length, learned counsel for the petitioners-Judgment Debtors confined his prayer only to the extent that the learned Lower Appellate Court be directed to decide the application under Order 41 Rule 21 r/w Section 151 CPC at an early date by preponing the date, to which learned counsel for the respondent no. 2 has no objection.
4. It is the submission of learned counsel for respondent no. 2-Decree Holder that the delay condonation application will be decided on its own merits and only then the application under Order 41 Rule 21 CPC may be decided on merits.
5. Writ petition is disposed of, with the consent of learned counsel for the parties, by directing learned lower Appellate Court to prepone the hearing of such Appeal to 01.9.2016, and continue to hear the matter on day-to-day basis, till it is finally decided.
6. Needless to say that construction being raised by respondent no. 2, in the meanwhile, shall be subject to final outcome of the pending judicial proceedings between the parties.
57. It is also made clear that this Court has not expressed its opinion on the merits of the case.
(U.C. Dhyani, J.) 24.8.2016 Pooja 6