SANDEEP DHAWAN Vs. SITA RAM

JUDGEMENT

(1.) [Ed. facts : One DC Duggal became tenant of suit premises in 1963. He gave it on license to Jagdish in 1963 who started partnership business with S.N. Dhawan, Sita Ram and Satish. It was dissolved after 1 years. Jagdish filed suit in 1965 against Dugal claiming that he was tenant. Suit was dismissed and so was appeal. Then in 1977, Duggal sued Jagdish & Sita Ram for possession on the basis of license. S.N. Dhawan was not impleaded as he was not in possession. Suit was decreed. In the Execution, S.N. Dhawan filed objections alleging that after firm was dissolved, he was doing business in the premises all these years and has become owner by adverse possession. Respondent filed a statement of S.N. Dhawan dt. 28.8.65 in the Court in which he had deposed that Jagdish was in possession of the premises and that he was only a casual visitor to the premises in dispute after Sept., 1964. The learned counsel for respondent No. 3 argued before me that if the Objector Dhawan had ceased to be in possession of the premises in dispute since Sept. 1964 and has not come out with a case that after Sept., 1964, he again came in possession of the premises in dispute in his own right with open and hostile character against the real owner, how can the appellants now dispute the execution proceedings on the basis of any alleged possession or adverse ownership. He also contended that the aforesaid statement; of Dhawan is contradictory to the objections filed by him in the aforesaid execution proceedings.] After detailing above. Judgment is :

(2.) I have perused the objections wherein the Objector says that on the date of the filing of the objections i.e. 4.7.1983, he was in possession of the property in dispute uninterruptedly and continuously since 1963-64 in his own right and title claiming himself to be in possession of the same as owner by adverse possession. This assertion in the objections filed by Dhawan is contradictory to the aforesaid statement be gave on path on 28.8.1965 in Suit No. 470/65 in which he admitted on oath that before his partnership with Jagdish and others started functioning, Jagdish was in occupation of the premises in dispute as he had taken the same on rent from Duggal. His statement in that Suit was that he was in occupation of the premises in dispute as his partnership firm with Jagdish and others styled "AD MASTER" was functioning in the premises in dispute. He also admitted in bis statement that on the date of the statement Jagdish was in possession of the suit premises and that after Sept., 1964, that is to say, after dissolution of above partnership firm, he was only occasionally visiting the suit premises. Nowhere in his statement he asserted that he was in possession of the premises in dispute on that date. Therefore, if in his objections Dhawan contended that on the date of the filing of the objections, he was in possession of the suit premises continuously and uninterruptedly since 1963-64, the same is palpably contradictory to what he stated on oath in Suit No. 470/65. Therefore, I hold that the objections of Dhawan have rightly been dismissed by the Execution Court, that there was no merit in appeal before the First Appellate Court and that there is no merit in this Second Appeal. Therefore, even if the contentions of the learned counsel for the appellant that the Appellate Court did not apply its mind may, for arguments sake, be taken as correct, still since there is no merit in the objections, I need not make any observations regarding the same in this judgment.

(3.) The learned counsel for the appellant vehemently argued before me that in Suit No. 470/65 possession of the Objector Dhawan was accepted and, therefore, unless and until there is anything to the contrary, that is, thin Dhawan was dispossessed from presmiscs at dispute, the possession of his L.R.'s may not be disturbed in execution of decree in Suit No. 211/77 in which Som Nath, the predecessor in interest of the appellants, was not a party.