DEVI KISHAN DAS Vs. RAM DAYAL

JUDGEMENT

(1.) IN this case we find yet another example of circuitous civil litigation where although half a century has passed but the litigation could not come to an end between the parties. In such matters usually all possible ingenuity is pressed into service to retard the progress of the already slow moving proceedings in civil litigation. The facts, in brief, necessary to appreciate the controversy involved in this case are that one Late Sri Jagannath Prasad had obtained a decree, in the year 1936, for sale of the house in question, on the basis of mortgage, against Late Sri Prem Kishan Das, the father of the present petitioner, and others. The house was sold in Court auction which was purchased by the decree holder Jagannath Prasad himself in the year 1942. Jagannath Prasad, the decree holder as well as Sri Prem Kishan Das, one of the judgment -debtors, have died. The present petitioner is son of Late Sri Prem Kishan Das and the opposite party No. 1 Ram Dayal is son of Late Lala Jagannath Prasad.

(2.) SMT . Sundro Bibi, mother of Late Prem Kishan Das and the grand -mother of the present petitioner filed a suit in the year 1940 for declaration that she was entitled to reside in the house in question during her life time and she could not be dispossessed therefrom. The suit was decreed in her favour and the appeal preferred by Lala Jagannath Prasad, the decree holder and purchaser of the house, failed. In the year 1942 the heirs of Lala Jagannath Prasad moved an application under Order 21 Rule 95 C.P.C. for delivery of possession of the house. Objections were filed to the s lid application by Smt. Sundro Bibi which were sustained evidently on the basis of decree in her favour to the effect that she was entitled to reside in the premises during her life time. In the result, some time in the year 1945 only symbolical possession was given to Ram Dayal, opposite party No. 1 as actual possession could not be delivered in view of the decree in favour of Smt. Sundro Bibi.

(3.) IT appears that issues were framed and several dates were fixed. From the order passed by the Additional District Judge, in revision, it appears that the petitioner himself had moved some applications for adducing evidence in support of his objections. However, suddenly in 1979 the petitioner moved an application with a prayer that the question about maintainability of second application was purely a question of law as well as the other question about perfecting the right by adverse possession, therefore, these issues may be decided as preliminary issues. The prayer made by the petitioner did not find favour with the execution Court and the application was rejected by the Additional Civil Judge, Lucknow, by his order dated 20 -7 -79 with the observation that it would be proper and convenient to decide all the objections under Section 47 of the Code of Civil Procedure together. Aggrieved by the order passed by the Additional Civil Judge, Lucknow, the petitioner preferred a revision which too met with the same fate and it was rejected by the Additional District Judge, Lucknow, by order dated 14 -1 -1981. The petitioner by filing this writ petition, has impugned the above mentioned two orders passed by the Additional Civil Judge, Lucknow and the Additional District Judge, Lucknow, copies of which have been filed as Annexures 3 and 4 respectively to the petition.