KANTA DEVI Vs. ARYA SAMAJ PRATINIDHI SABHA HALDWANI

JUDGEMENT

(1.) IN both the writ petitions, judgment and order dated 29.04.2014, passed by the IInd Additional Civil Judge (Junior Division), Nainital and judgment and order dated 20.04.2015, passed by the 1st Additional District Judge, Nainital are under challenge whereby objections filed under Section 47 of the C.P.C. were rejected by the Executing Court and revision arising therefrom was dismissed by the Revisional Court. Brief facts of the present case, inter alia, are that respondent herein has filed O.S. No. 112 of 1972 in the Court of Civil Judge, Nainital against Bhupal Singh, Lakhan Singh, Satyendra Kumar and Smt. Janaki Devi for possession over suit property and for recovery of Rs.900/ -. Petitioner Kanta Devi is widow of defendant Lakhan Singh while petitioner Satyendra Kumar was defendant No. 3. In Suit No. 112 of 1972, defendants therein took defence that plaintiffs therein were not the owner and landlord of the property in question and defendants never took property in question on the licence (Theka) from the plaintiffs therein. In O.S. No. 112 of 1972, issue No.1 was to the effect as to whether plaintiffs are the owners of the suit property ? Issue No. 3 was to the effect as to whether Sri Shiv Lal predecessor in interest of the defendants was Thekadar of the plaintiffs ? If so, its effect.

(2.) SUIT was hotly contested, however, O.S. No. 112 of 1972 was decreed by the Trial Court, vide judgment and decree dated 30.05.1998, finding that plaintiffs therein are the owner of the property in question and Sri Shiv Lal predecessor in interest of the defendant was Thekadar of the plaintiffs over the suit property. Defendants were directed to pay Rs.900/ - to the plaintiffs and to hand over the physical vacant possession of the suit land to the plaintiffs. Feeling aggrieved, First Appeal No. 73 of 1998 was preferred in the Court of District Judge, Nainital assailing the judgment and decree dated 30.05.1998, passed in O.S. No. 112 of 1972. However, First Appeal so filed by the defendants came to be dismissed vide judgment and decree dated 14.07.2000 upholding the judgment and decree, passed by the learned Trial Court. Judgment and decree passed by the learned Trial Court dated 30th May, 1998 as well as First Appeal No. 73 of 1998 were challenged before this Court in Second Appeal No. 392 of 2001 (Old No. 1131 of 2000), however, Second Appeal also came to be dismissed.

(3.) THEREAFTER , plaintiffs decree holder moved Execution No. 03 of 2011 before the Executing Court, i.e. Civil Judge (Junior Division), Nainital for possession and recovery of the amount of Rs.900/ -. Notices were issued to the judgment debtors, however, judgment debtors, preferred objections under Section 47 of the C.P.C. before the Executing Court stating therein that decree passed in Original Suit No. 112 of 1972 was without jurisdiction. Suit property was nazul land under the management and control of the Municipality, Haldwani and Municipality, Haldwani was never impleaded party defendant, therefore, decree passed pertaining to the nazul land is nullity.