MARWADI PUNAMJI MOTIJI Vs. MOHAMAD SIDDIQUE MUSABHAI SHAIKH

JUDGEMENT

(1.) This Civil Revision Application has been directed against the orders pronounced by the learned Civil Judge (J.D.), Kapadwanj in Regular Darkhast No. 149 of 1984 dismissing the objections raised by the present petitioner who happens to be the original defendant.

(2.) The opponents herein had filed the Regular Civil Suit No. 24 of 1977 before the Court the learned Civil Judge (S.D.), Kapadwanj, praying for a decree of eviction against the petitioner tenant. The case put forth by the original plaintiffs was to the effect that the defendant was their tenant in respect of certain premises bearing City Survey No. 6793 of Kapadwanj town and that, he was in arrears of rent for a period of more than 6 months. It was also alleged in the aforesaid suit that the defendant had encroached upon portion of the land admeasuring 15 ft. x 5 ft. before about 2 years of the filing of the suit and has put on a kachha construction on the same. The learned trial Judge had framed the issuses and after the appreciation of evidence on record the learned trial Judge had come to the conclusion that the plaintiffs were not able to establish that the defendant is a tenant in arrears of rent for a period of more than six months. Any how the learned trial Judge while deciding the issue No. 4(b) had come to the conclusion that the plaintiffs were able to establish that the defendant has encroached upon the land admeasuring 15 ft. x 5 ft. in front of the rented premises. In view of this finding the learned trial Judge has granted the decree in respect of the above said encroached portion of the land. The learned trial Judge had refused the decree of the rented premises, which was claimed on the ground of non-payment of the rent for a period of more than six months. The above said judgment dated 30/10/1982 and the consequent decree were challenged by filing the Regular Civil Appeal No. 28 of 1983 before the District Court, Kheda at Nadiad. The original plaintiffs had filed the crossobjections in so far as their claim was disallowed. By the judgment and decree dated 30/03/1984 the learned 2nd Extra Assistant Judae, Nadiad was pleased to dismiss the appeal filed by the present petitioner but was further pleased to allow the cross-objections. The effect, therefore, of the orders, judgments and the decrees of the Courts below, was that the plaintiffs were entitled to the decree of eviction in respect of both the premises, namely, the rented premises and the encroached premises.

(3.) It appears that, thereafter the original plaintiffs have instituted the execution proceedings which came to be registered as Regular Darkhast No. 149 of 1984. In this proceedings the present petitioner has raised the objection by urging that the decree sought to be executed was not in accordance with law and was a nullity and, therefore, the said decree could not be executed. The learned Civil Judge (J.D.), Kapadwanj by the orders dated 8/03/1988 has dismissed the objections raised by the petitioner. The said orders of dismissal of the objections are being challenged in the present Civil Revision Application before this Court.