TUNGAL Vs. RAMESH CHAND VAISH

JUDGEMENT

(1.) This petition under Article 227 of Constitution of India is directed against the order dated 26.09.2013 passed by Executing Court/Civil Judge (Junior Division), Dehradun in Misc. Case No. 10 of 2004 "Shri Parsa and others Vs. Shri Ramesh Chandra Vaish and others"?. The order passed by Revisional Court dated 29.01.2018, affirming the order of the Executing Court, has also been challenged in this petition.

(2.) Facts of the case are that one Ram Kishori Devi (Predecessor-in-interest of respondents) filed an eviction suit against five persons, namely, Parsa, Tungal, Phullo Ratti Ram and Mahant Ashok Prapan Sharma in the Court of Munsiff, Dehradun, which was registered as Original Suit No. 57 of 1960. The said suit was decreed ex-parte vide order dated 31.10.1960. The said ex-parte decree was thereafter, set aside by learned trial Court on 22.03.1972 on an application under Order 9 Rule 13 C.P.C. filed by the defendants. After hearing the defendants, the suit was again decreed by the learned trial Court vide judgment and order dated 05.08.1982, against which defendants preferred an Appeal under Section 96 C.P.C., which was registered as Civil Appeal No. 98 of 1982. The said Appeal was dismissed as abated by learned IInd Additional Civil Judge, Dehradun vide order dated 19.04.1991. Application filed by Defendants/Appellants for setting aside said order was rejected vide order dated 07.12.1994. The defendants in the suit (petitioners herein) challenged the order passed by IInd Additional Civil Judge, Dehradun in Civil Appeal No. 98 of 1982 by filing Writ Petition No. 191 of 1995, which too was dismissed. Thus, the decree passed by learned trial Court in Original Suit No. 57 of 1960 attained finality.

(3.) Since the original decree holder had passed away in the meantime, therefore, application for execution of the decree was filed by her legal heirs on 15.05.1995, which was registered as Execution Case No.8 of 1995. The judgment debtors filed their objection under Section 47 C.P.C., which was registered as Misc. Case No. 71 of 1999. In the said objection, the judgment debtors contended that they are in possession over the land in question since long and they have also obtained a Bhumidhari Sanad in respect of the subject land from the Competent Authority on 18.04.1967, therefore, they have become owner of the said land, as such, they cannot be evicted from the suit property and execution proceedings deserve to be closed. The said objection was rejected by the executing court vide order dated 28.04.2001.