SUKARAM DEVELOPERPVT LTD Vs. IVTH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) In the present case, petitioner is assailing the validity of the order dated 31.3.1996 passed by Executing Court rejecting the objection preferred under Section 47 of Code of Civil Procedure and thereafter revision preferred against the same has also been dismissed on 21.4.1998.

(2.) Brief facts giving rise to present writ petition in briefs is that one Bhagwan Das was owner of property in dispute. On 14.9.1946 said Bhagwan executed lease deed in favour of Hari Shankar Lal Sharma, Thereafter sale deed has been executed in favour of Murari Lal on 6,2.1965. Said Murari Lal is alleged to have given notice to Hari Shankar Lal Sharma about the execution of sale deed and pursuant thereto it has been contended that rent was paid to Murari Lal and thereafter same has been deposited in the Court, in proceeding undertaken under Section 30 of U.P. Act No. XIII of 1972. Hari Shankar Lal Sharma had rented part of the said premises to of Ram Swaroop and when he stopped paying rent, then Hari Shankar Lal filed suit against Ram Swaroop for ejectment being suit No. 131 of 1980. Said suit was decreed on 21.1.1981. Appeal preferred against the same has also been rejected on 25.8.1983, Thereafter second appeal preferred against the same has also been rejected on 21.8.1995. Prior to it for execution of said decree execution case No. 21 of 1984 has been filed by legal heirs of Hari Shankar Sharma. In the year 1994 Murari Lal filed a suit against Ram Swaroop being suit No. 283 of 1994 after tenancy of Hari Shankar Lal Sharma has been allegedly terminated. Pursuant to the said decree in Original Suit No. 283 of 1994 executing proceedings have been initiated and on 27.7.1995. Murari Lal alleges to have obtained Dakhalnama pursuant thereto. Brij Lal son of late Hari Shankar Lal Sharma has filed suit for cancellation of decree in suit No. 283 of 1994, which has been registered as suit No. 625 of 1995. Murari Lal in execution proceedings, which has been going on for execution of decree of suit No. 131 of 1980 filed objection under Section 47 of Code of Civil Procedure on the basis that he is owner and in possession of the property in question on the basis of Dakhalnama given by Court hence he cannot be ejected from the portion occupied by Ram Swaroop. Said objection under Section 47 of Code of Civil Procedure has been rejected. Revision preferred against the same has also been rejected. At this juncture, petitioner has approached this Court.

(3.) Counter affidavit has been filed and therein it has been contended that order which has been passed by both Courts below are rightful order and same does not suffer from any legal infirmity. It has been contended that entire proceedings in respect of obtaining of possession are an outcome of manipulation. Reference has been given of various proceedings namely suit No. 100 of 1992 wherein order has been passed to the effect that Ram Swaroop shall not be put in possession. Further reference has been given of suit No. 484 of 1992 filed by petitioners which was got dismissed. Further reference has been given of suit No. 571 of 1992 filed by petitioner and this suit has also been dismissed and restoration application is alleged to be pending. Suit No. 10 of 1995 has also been filed. It has been specifically contended that Dakhalnama is fictitious and the fact of the matter is that Ram Swaroop is in possession. It has been contended that objection which has been filed has no subsistence and same was clearly not maintainable. In this background it has been contended that writ petition is liable to be dismissed.