Delhi District Court
The Suit Was Filed In June vs Saroop Singh Gupta Have Categorically ... on 3 September, 2010
IN THE COURT OF CIVIL JUDGE - 02 (NORTH)
PRESIDING OFFICER SAMAR VISHAL
Ex. No. 60/09
Memo of Parties
Jagdish Singh ................Decree holder
Versus
Sh. Saroop Singh Gupta(deceased) & Ors. ..........Judgment Debtor
Counsel for decree holder: Sh. Manjeet Singh Ahluwalia, Advocate
Counsel for objector: Sh. Mohinder Madaan, Advocate
ORDER
This composite order will dispose off the objections filed by Sh. K.S. Gupta and Shri Rajesh Gupta , independent objectors to the execution of this decree for possession of property no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi.
When the warrants of possession were issued, the decree holder was able to obtain 438 sq. yds of property out of 500 sq. yds( as per the affidavit of the attorney of DH) . It is alleged that the rest of the property is in the form of two shops, one under the possession of Sh. K.S. Gupta and another under the possession of Sh. Rajesh Gupta. Both of them filed objections. The objections of both of them are under consideration. The objections of Shree K. S. Gupta are filed on following grounds;
1. The suit was filed in June, 1979. At that time, the objector was already in possession of part of the property. Despite the fact that the objector was already occupying the part of the premises in question, the plaintiff had not chosen to implead him in the proceedings/suit filed Ex. No. 60/09 1 by him. It is alleged that the objector is in physical possession of the portion in his possession since the year 1963.
2. The objector is in possession of a part of property/premises measuring about 15 ft X 15 ft 225 sq. ft where he has been running the business of Automobile Workshop by the name of General Motor Car Company, since the year 1963 continuously and without any objection or hindrance from any quarter. The electricity connection has also been obtained by the objector in his own name prior to the year 1965. It has been alleged that he is in possession of portion under his possession for the last more than 12 years continuously and uninterruptedly .
3. The original owner of the property had also agreed to transfer by sale, the part of the property from his plot no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi for a sum of Rs.3,500/ to the objector namely Sh. K.S. Gupta and after receiving a sum of Rs.2,000/ from the objector in cash, the objector was put in possession of the part of the property and it had been agreed that the sale deed and other documents would be executed in favour of the objector, in respect of the portion of the property in his occupation, for transferring the title in his favour. The execution of sale deed has been delayed on one pretext or another by the previous owner of the property and the objector did not initiate any proceedings for the enforcement of oral agreement because the physical possession has already been handed over to the objector and he was never disturbed.
4. In the garb of the present decree, the decree holder is trying to dispossess him from his settled possession of more than 12 years which otherwise is also a adverse possession. No proceeding till date has been instituted against the objector for dispossessing him illegally from the portion under his possession.
5. The decree has not been passed against the objector, and therefore, cannot be executed against him. The objector was not the judgment debtor in the Civil Suit and therefore, is not Ex. No. 60/09 2 bound by the decree.
6. The objector has been running the business of motor workshop in the name and style of General Motor Car Company from the suit premises and the other adjoining premises forming part of the property no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi and this execution qua the objector may be dismissed.
The decree holder repelled the objections alleging that
1. The objections are not maintainable as the objector has been planted by the LRs of judgment debtor just to cause hindrance and obstruction and to delay the execution of the decree.
2. The decree pertains to the year 1983. This suit was filed in the year 1979. The judgment debtor Sh. Saroop Singh contested this case upto Hon'ble Supreme Court and the Hon'ble Court has categorically held that he is in possession of 500 sq yds of property no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi and further he categorically admitted that he was a tenant of decree holder for 500 sq. yds. Therefore, the allegations of the objector that he is in possession of the portion of no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi is frivolous.
3. The objector has all the knowledge about the present proceedings and it is only when the decree was to be executed, the objector come forward to thwart the proceedings of this case. The objector is bound by the decree.
4. The objections are time barred as the decree is of 22.10.1983 and the objections have been filed after nearly 27 years after passing of the decree. The objector has not shown any document to show that they are in legal occupation of the alleged shop, as such their objections are liable to me dismissed on this ground. This objector had in the Civil Suit no. 375/95 titled General Motor Car Company Vs. Saroop Singh Gupta have categorically admitted that the property in question, falls in khasra no.346 and property no.1512, Kotla Mubarakpur, Wazir Nagar, is in khasra no.346 and the objector has admitted that the part of the property was let Ex. No. 60/09 3 out to him by Sh. S.S. Gupta and S.S. Gupta was the tenant of the decree holder and is the judgment debtor. Therefore, the present objector is bound by the decree and is liable to be dispossessed from the portion under his possession.
I have heard counsel for the decree holder as well as objector and perused the records of the case.
It has been a long struggle for the decree holder to obtain the complete possession of his property from the tenants and other persons like the present objector and now has been again encumbered in this process by the fresh set of objections filed by two independent objectors alleging themselves to be in the possession of some portion of disputed property. The suit was filed in the year 1979. The suit was decreed in the year 1983. The matter went into appeal upto Hon'ble Supreme Court of India where ultimately the decree holder succeeded in the year 2006 and after that he is still struggling in this execution for the satisfaction of the decree. Numerous objections and applications were filed to obstruct this decree . In the process of reaping the fruits of the decree, the decree holder has seen the doors of all the Courts, from the lowest in the hierarchy to the highest one. The suit property was of 500 sq. yds out of which the decree holder has been able to obtain 438 sq. yds as per his own version and the rest is still in possession of the two objectors who have filed these objections. This order is disposing the objections filed by Sh. K.S. Gupta and Shri Rajesh Gupta .
Various documents has been placed on record to show that the objector is in possession of the portion of the suit property which he is occupying since the year 1963. There is no continuity in these documents and I am of the view that these piecemeal documents are not sufficient to establish any legal right of the objector to continue in possession of the suit property. To claim possession, there must be some legal basis on the strength of which this objector has tried to protect his possession. The three grounds on which the possession is Ex. No. 60/09 4 sought to be protected are.
1. He has purchased the property from the previous owner.
2. That he was not the party to the original proceedings and therefore, not bound by the decree.
3. He has been in continuous possession for more than 12 years and therefore, he is the owner of the property by adverse possession.
I will take all of them one by one.
1. It is alleged by the objector that he has the right to protect his possession because the previous owner has sold the suit property to him by virtue of an oral agreement to sale for a sum of Rs.3,500/. After that he was neither disturbed nor asked by the original owner to vacate the property and therefore, by virtue of the principle of part performance provided in section 53A of the Transfer of Property Act, he is entitled to protect his possession. Section 53A of Transfer of Property Act provides that;
Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the Ex. No. 60/09 5 transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract;
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
The conditions necessary for making out the defence of part performance to an action in ejectment are as follows;
1. That the transferor has contracted for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
2. that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee being already in possession continues in possession in part performance of the contract;
3. that the transferee has done some act in furtherance of the contract; and
4. that the transferee has performed and is willing to perform his part of the contract. Therefore, the first and foremost requirement to protect the possession under this section is that there should be a written instrument like an agreement to transfer the property. The first and foremost condition is lacking in the present case as the objector has itself alleged in para 8 of his objections that he did not initiate any proceedings for the enforcement of the oral agreement to transfer the property. Therefore, this defence of the objector that he has purchased the property is not tenable firstly because there is no written document of agreement to sell and secondly a person cannot be said to be the owner of any property in the absence of valid instrument of sale as no purchase of any immovable property for a value of more than Rs.100/ can be done without any registered document in view of section 17 of Indian Registration Act and section 54 of Transfer of Property Act. Ex. No. 60/09 6
As far as the doctrine of part performance is concerned, there is no written document or instrument. Not only this the plea of adverse possession and retaining the possession by operation of Section 53A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land. Therefore, section 53A of Transfer of Property Act will not going to protect the possession of the objector. Therefore, this defence of the objector is dismissed.
2. The rest of the two defences taken by the objector that he is not bound by the decree or that of adverse possession are also not liable to be entertained in view of the fact that the plea of part performance and adverse possession are contrary to each other and he himself has admitted himself to be the tenant of Sh. S.S. Gupta, the judgment debtor. This admission is categorical and there is no denial to it. Let us see how this admission has come on record. In reply to the objections of Sh. K.S. Gupta, it is alleged by the decree holder in para 8 of his preliminary objections that;
"That the objector in Suit no.375/1995 titled M/s General Motor Car Company Vs. Swarup Singh Gupta, have categorically admitted that the property in question, falls in khasra no.346 and property no.1512, Kotla Mubarakpur, Wazir Nagar, is in khasra no.346 and the objector has admitted that the part of the property was let out to him by Sh. Swarup Singh Gupta and Swarup Singh Gupta has already admitted that he is the tenant of decree holder in various proceedings."
The copy of the plaint filed in suit no.375/95 is already on record. In his rejoinder to this reply, the objector has skipped answering this paragraph thereby Ex. No. 60/09 7 not denying it and ultimately admitting it. The copy of the plaint of Suit no. 375/95 clearly shows that the General Motor Car Company through its proprietor Sh. K.S. Gupta had averred itself to be the tenant of Sh. S.S. Gupta, the judgment debtor. The suit was filed against the MCD. Sh. V.K. Yadav, the then Ld. Civil Judge vide his order dated 9.12.99, in that suit, dismissed the application of interim injunction.
Not only this a copy of the plaint in suit no.235/01 titled Sh. K.S. Gupta and others Vs. MCD and Ors has been placed on record wherein it has been admitted by Sh. K.S. Gupta that he took on rent from Sh. S.S. Gupta an office space measuring 3.9 X 4.3 meters forming part of property no. 1512, Wazir Nagar, Kotla Mubarakpur, New Delhi sometimes back in the year 1964. It means that the objector has in previous proceedings claimed himself to be the tenant of Sh. S.S. Gupta, judgment debtor no.1 of the present execution. Therefore, the pleadings in the above two cases clearly shows and proves that Sh. K.S. Gupta was the tenant of Sh. S.S. Gupta.
It is a settled law that a sub tenant can be removed in the execution of a decree for possession which has been passed against the principal tenant. It has been held in the case of Narain Vs. Smt. Kalan Bai 1986 AIR (Rajasthan) 52 that "sub tenants unless there is a privity of contract between them and the landlord, have no locus standi to challenge the decree of eviction passed against the tenant in chief."
Similarly in Roop Chand Vs. Raghuvanshi AIR 1964 SC 1989 it has been observed by Hon'ble Supreme Court of India that "Where the landlord instituted a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and it is not impleaded as sub lessee, as a party to the suit, the object of the landlord is to eject the sub lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub lessee. This may act harshly on the sub lessee but Ex. No. 60/09 8 this is a position well understood by him when he took the sub lease. The law allows this and so the omission cannot be said to be an improper act."
Similarly the Hon'ble Delhi High Court in the case titled as Bhanwar Singh Vs. Sultan Khan and Ors 1986 (1) RCR (Rent) 670 observed that "sub tenant in general law, cannot get a better title than the person through whom he derived the title i.e. tenant. If, therefore, a tenant is liable to be evicted then all the person including the sub tenant have to evict along with the tenant. However, section 18 of the Rent Control Act sought to carve out an exception to this general rule. Section 18 provides that where a notice under section 17 has been given for the creation of sub tenancy, then if an order of eviction is passed against the tenant then such tenant will be deemed to have become a tenant holding directly under the landlord. If no such notice is given then the sub tenant will have to vacate the premises without an order of eviction is passed against the persons through whom he is deriving the title i.e. the tenant."
In this respect the decree holder has relied upon the judgment of Suresh Chand Jain Vs. The IIIrd Additional District Judge Mathura and Ors. (2001) 10 SCC 508 wherein it was observed that the sub tenant did not have any independent right to raise any objection before the executing Court. The sub tenants were legally bound by the orders passed against the main tenant particularly when the ejectment decree against the main tenant has become final.
Therefore, in view of the aforesaid admissions, it is settled that a sub tenant has no right to resist the delivery of possession. The objector has admitted himself to be the tenant of decree holder Sh. S.S. Gupta. However, he has concealed this fact in his objections. Therefore, not only he is bound by the decree but his plea of adverse possession also vanishes.
The counsel for objector has relied upon the judgment of K. Venkataswami and A.P. Ex. No. 60/09 9 Misra AIR 1998 SC 1827 wherein it was held that third party in possession claiming independent right as tenant can object and get his claim adjudicated when sought to be dispossessed by decree holder. He need not wait until he is dispossessed. This judgment of Hon'ble Court does not help the objector because first of all he has not alleged himself to be the tenant and although, admittedly he is a sub tenant and is liable to be evicted in view of the judgments discussed above.
Counsel for objector has further relied upon the judgment titled Shiv Dayal & G.L. Oza AIR 1974 Madhya Pradesh 26 (V 61 7) wherein it was held that as soon as the third person resists or obstructs delivery of possession, the executing Court must stay its hands, until the decree holder either satisfies it that such a person is bound by the decree, or makes an application under order 21 R 97 complaining resistance or obstruction. In the present case, the objector is held to be bound by the decree in question.
This judgment goes against him because it shows that the inquiry regarding the right of the objector should be summary and the proceedings must be disposed off expeditiously and if the Court finds that the resistance or obstruction was vexatious or frivolous, it may award heavy cost and also mesne profits. It has already been held that the objections are frivolous.
He has further relied upon the judgment of Hon'ble Supreme Court of India in H.Seshadri Vs. K.R. Natarajan & Anr. 2003(3) Civil Court Cases 01 (SC) wherein it was held that for the purpose of considering an application under order XXI Rules 99 and 100 of the Code of Civil Procedure what was required to be considered was as to whether the applicant herein claimed a right independent of the judgment debtor or not. A person claiming through or under the judgment debtor may be dispossessed in execution of a decree passed against the judgment debtor but not when he is in possession of the premises in question in his own independent right or otherwise.
Ex. No. 60/09 10
Therefore in view of this judgment also the objector has no right to resist the delivery of possession as he has no independent right but appears to be claiming under the judgment debtor as a subtenant.
According to this judgment, objector has to show his independent right in respect of the portion under his occupation but he has failed to do so. Not even a single document has been placed on record to show his title or the legal basis over the suit property. On the contrary in the previous pleadings it has been admitted that he is a sub tenant and is claiming under the judgment debtor and therefore, I am unable to understand any independent right of the objector because the theory that he has purchased the property or that he is in adverse possession as already discussed found to be frivolous.
Now I will deal with the objections filed by Sh. Rajesh Gupta, the other objector. Sh. Rajesh Gupta has filed the objections alleging that he came to know about the execution when the bailiff reached the spot to execute the decree for possession. It is averred that the decree of possession has been obtained by the plaintiffs in respect of the portions of property i.e. plot no. 1512, Wazir Nagar, Kotla Mubarakpur, New Delhi against the defendants/tenants who have since been expired and his legal representatives have been impleaded in this case. The objector has not been impleaded in the suit filed by the plaintiffs and he was not aware of the proceedings. Objector is in possession of the part of the property no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi measuring about 336 sq. ft (24 ft. X 14 ft.) which is in his possession where he is running his business of building material since 1978 continuously and without any hindrance. It was used as a shop since the year 1965. The electricity connection has been obtained in the year 2000. There has been no proceedings or objection from any quarter much less from the decree holder till today and the objector is in continuous possession of the property under his possession since 1964 and he has occupied it Ex. No. 60/09 11 for the last more than 12 years continuously. In this way one of the objection of the objector is that he is in adverse possession of the portion under his possession.
Secondly, it is averred by him that the original owner of the property had agreed to sale the part of the property for a sum of Rs. 3,500/ from him in cash and he had put him in possession of the part of the property and it had been agreed that the sale deed and other documents would be executed in favour of the father of the objector, in respect of the portion of the property in his occupation. The receipt of the cash amount paid by the father of the objector has been misplaced and has not been traceable. The father of the objector passed away on 1.10.1995 and he has also requested Mr. Jagdish Singh to execute the sale deed in favour of the objector but the same had been delayed on one pretext or the other and the objector did not initiate any proceedings for the enforcement of the oral agreement because the physical possession had already been handed over to the father of the objector and therefore, he was entitled for the protection under section 53A of the Transfer of Property Act.
In this way, this objector has tried to protect his possession on two grounds, firstly on the basis of the theory of part performance as provided under section 53A of Transfer of Property Act and secondly, on the basis of adverse possession.
I have already dealt with the theory of part performance above. In the case of this objector also, this objector has also relied upon an oral agreement for protection of his possession. Therefore, the theory of part performance does not help him in the absence of the written agreement of the transfer of the portion of the property in his possession. Also there is no date or other material particulars on which the agreement was made.
Secondly, the theory of adverse possession is also not tenable. It has been categorically admitted by the judgment debtor/tenant Sh. S.S. Gupta throughout the proceedings of the case as well as in this execution that he was in possession of 500 sq. yds of plot no. 1512, Wazir Ex. No. 60/09 12 Nagar, Kotla Mubarakpur, New Delhi. Not even a single averment is there that this objector is in possession of the portion in which he is claiming so. It is not the case of the objector that the portion in his possession does not form part of plot no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi. It was not the case of the decree holder that the portion of plot no.1512, Wazir Nagar, Kotla Mubarakpur, New Delhi was given on lease to the judgment debtors.
The landlord is always in possession of the leased premises under his ownership constructively through the tenant. Any sub lessee or any other person cannot be said to be in adverse possession of any property which has been given on lease by the landlord. If the person claiming himself to be in adverse possession has come into possession of the lease premises with the permission of the tenant then he is simply a sub lessee and in case without the permission of the lessee, then it can only be said that he is in adverse possession against the lessee and not against the landlord/owner of the property and the plea of adverse possession can only be made only against the real owner of the property.
Not only this, the plea of protection of possession through the theory of part possession is completely inconsistent with the plea of adverse possession. As has been held by Hon'ble Supreme Court of India in the case of Achal Reddy Vs. Ramakrishna Reddiar 1990 AIR SC 553 ''In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchase throughout is that he is in possession of the property belonging to the title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in Ex. No. 60/09 13 pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamall v. Muthlah, (ILR (1965) 1 Mad 254) (supra) cannot, therefore, be doubted''.
And in the present case it is a clear plea of the objector that there was an agreemnt to sale and not the proper sale in favour of the father of the objector. And this 30 years long struggle to recover the property in the hands of the tenants is a clear manifestation of the intention of the decree holder that they has not sold the property to the objectors father in the present case. It was averred by the objector that he has also asked Sh. Jagdish Singh to execute the sale deed in his favour. This averment itself implies that the objector admits decree holder as the owner of the property.
Similar was the observation of Hon'ble Punjab & Haryana High Court in the case tittled Ex. No. 60/09 14 as Baldev Singh Vs. Kulbeer Singh & Ors. 2009 (IV) RCR (Civil) 186. It was observed in this case that where the plaintiff was given possession on the basis of an agreement to sell and later on the sale deed was not executed, the plaintiff continue to remain in possession, the plaintiff was not held to have become owner by way of adverse possession and his possession was merely the permissive possession. The reason being that adverse possession commenced in wrong and is aimed against right. When the commencement and continuance is legal and proper, referable to a contract, it cannot be said to be adverse.
Therefore, according to his own case, the objector has come into the possession of the portion of the property through the previous owner who has given him permission to occupy and according to this judgment of Hon'ble Supreme Court of India, he can only be said to have been in permissive possession through the original owner and not in adverse possession against him.
Not only this the essential ingredients of adverse possession are declared by Hon'ble Supreme Court of India in Saroop Singh Vs. Bantoo & Ors 2005 AIR SC 4407 wherein the Hon'ble Supreme Court of India while relying upon its previous case of Karnataka Board of Wakf v. Government of India and Others, 2004(2) RCR(Civil) 702 (SC) : [(2004)10 SCC 779], observed :
"....Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A Ex. No. 60/09 15 person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
But in the present case the objector has not mentioned in his objections that when he come into the possession of the property and from which date he declared possession hostile against the true owner etc. Hon'ble Supreme Court in Silverline Forum (P) Ltd. Vs. Rajiv Trust, held:
"The executing court can decide whether the resister or obstructer is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97 (2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary".
As far the right to lead evidence to prove objections is considered , in this respect the law is very clear and it was also held in the case of "Hubert Obediah Vs. Mahendra Kumar 2001 AIHE 3309 Raj" :
"that where the party's objections neither involves disputed questions nor require any inquiry necessitating recording or leading any evidence, the Court may not permit the parties to lead evidence in objections. Therefore if the objections raised by the objector are maintainable and needs evidence in their support, only then he may be allowed to lead evidence, but not as a matter of right.
In the case of Rocky Tyres Vs. Ajit Jain AIR 1998 P & H 202 it was held that:
" It is a settled principle of law that it is not incumbent upon the executing Court that it Ex. No. 60/09 16 must put to trial every objections which are filed in execution proceedings even if prima facie they appears to be frivolous and vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of law."
Objections to the execution can be permitted only when they are bona fide and have substance. When they tried to defeat and delay the execution, they should be outrightly rejected. The objectors have failed to establish any legal right in the property under their possession. This litigation is going on for the last 30 years and the objectors claim that they were not aware of this litigation. Without commenting on the veracity of their claim, I at this stage can only say that not only this lack of knowledge of this prolonged litigation is surprising but unbelievable.
Therefore, on the basis of overall discussion these objections are found to be not maintainable and therefore, the objections filed by the objectors Sh. K.S. Gupta and Shri Rajesh Gupta are dismissed as not maintainable and are declared to be filed to delay and obstruct the decree having no independent right to continue in possession of the suit property. No meritorious claim is reflected in these objections.
They are directed to vacate the suit property within 7 days from today and to handover its peaceful possession to the decree holder failing which the decree holder shall have the right to approach this court to get the objectors evicted through coercive methods including police assistance.
Announced in the open Court SAMAR VISHAL
On 03.09.2010 Civil Judge02
(North)/Delhi
03.09.2010
Ex. No. 60/09 17
03.09.2010 Ex. No.60/09
Vide separate order, the objections filed by Sh. K.S. Gupta and Sh. Rajesh Gupta are dismissed being not maintainable.
They are directed to vacate the suit property within 7 days from today and to handover its peaceful possession to the decree holder.
The decree holder has filed an affidavit in the Court that he has obtained the possession of 438 sq. yds of the property. On the other hand, an affidavit has been filed on behalf of the objector that the decree holder has wrongly mentioned that he has obtained 438 sq. yds of the property. He has also mentioned in the affidavit that the decree holder has in the execution of this decree tried to encroach upon the public place. The objector has also requested for appointment of local commissioner to verify the allegations made by him in the affidavit.
If the allegations of the objector are true then it is made clear at this stage that decree holder cannot be allowed to encroach upon the public way. The decree holder may file a reply to this affidavit as well as a reply to the request of the objector to appoint a local commissioner in this respect with a clear undertaking that in the guise of this decree they will not encroach upon the public land. This reply may be filed by next date of hearing.
To come up for further proceedings on 17.9.2010.
SAMAR VISHAL Civil Judge02 (North)/Delhi 03.09.2010 Ex. No. 60/09 18