JAGDISH CHANDRA Vs. VIDYESHWAR NATH

JUDGEMENT

(1.) PRESENT writ petition has been filed by the petitioner for quashing the order dated 30.09.2008 passed by the Civil Judge (Sr. Div.) Pauri Garhwal in Civil Execution Case no.30/98 and order dated 25.02.2010 passed by the District Judge, Pauri Garhwal in Civil Revision no.21/08.

(2.) BRIEF facts of the case, as narrated in the writ petition, are that a civil suit bearing no.40/91 was filed by the respondents against Mr. Bhagwat Dutt Mishra. In this civil suit a judgment was delivered on 07.05.1997 by the Trial Court, which was subsequently confirmed by the Appellate Courts. When the Execution Case No.30/1998 was filed by the respondents for the execution of aforesaid decree, the petitioner filed an application for the rejection of execution case, but the application bearing no.11/05 was subsequently withdrawn. Thereafter, the petitioner again moved an application 131-C in the aforesaid execution case with the averment that meets and bounds of the said property of the respondents were not the same as that of the property owned by the petitioner. It was further submitted that the property in possession of the respondents is having following boundaries i.e. in east road of State Government, in west- house of Dharam Pal and thereafter Ganga river, in north- Nala and thereafter house of Vijay Singhal and in south- way to Ganga River and thereafter clinic of Dr. Kothari. It is further stated in the petition that the petitioner also filed a separate suit against the respondents not to interfere in the peaceful possession of the petitioner. This suit was for permanent injunction, which was numbered as Civil suit no.21/04, was dismissed. It is asserted in the petition that, thereafter an appeal was also preferred bearing appeal no.7/05 against the judgment passed by the Trial Court but the same was decided against the petitioner and subsequent thereto the second appeal was also decided by this Court. It is further stated in the petition that the suit no.21/04 was for injunction against the respondents and the respondents have not sought any relief by way of counter claim in that suit against the petitioner for his eviction, therefore, even the suit instituted by the plaintiff had been dismissed, there was no order for the eviction of the plaintiff from the property involved in suit no.21/04. The petitioner has further stated that when the objections of the petitioner was decided by the Trial Court, the learned Trial Court did not consider that the property in possession of the petitioner was different and the property mentioned in the suit no.40/91 and the execution arising thereof was different. Mentioning the boundaries in the petition the petitioner has stated that he is running a barber and tea shop on the disputed land and is also having a residence there. The petitioner has further stated that the shop in question is situated on one side of the road while the property in execution case is situated on the other side of the road, thus there is no question for the respondents to include the shop of the petitioner within their boundaries. It is further stated in the petition that petitioner was neither a party in Original Suit no.40/91 nor he is a party in Execution Case no.30/98. It is further submitted that if the petitioner is evicted from the property in question, without giving any chance of hearing, his rights will grossly suffer. It is further submitted that Trial Court as well as Revisional Court did not consider this material aspect and passed the impugned orders in an illegal and arbitrary manner. Hence, this petition has been filed.

(3.) ON the other hand Shri Vinod Tiwari contended that both the Court's below have given concurrent findings, which cannot be interfered in the writ jurisdiction and no relief can be granted in favour of petitioner against the decree which has became final.