DEVENDRA KUMAR SHARMA Vs. SAMEERMAL JALORI

JUDGEMENT

(1.) Shri Gaurav Mishra and Shri Anurag Saxena, learned counsel for the applicant.

(2.) This revision under Sec. 115 of the CPC has been filed being aggrieved vide order dtd. 01/10/2021 passed by First Civil Judge Senior Division Vidisha (M.P.) in Execution case No. Ex-A 26/17 (Sameermal Jalori VS Devendra Kumar Sharma and another) whereby application filed by the applicant/judgment debtor under Order 21 Rule 13 Read With Sec. 47 and 151 of the CPC has been rejected.

(3.) Brief facts leading to filing of this case are that respondent No.1/ decree holder had filed civil suit against the applicant/judgment debtor for recovery of possession of the land which was registered as civil Suit No. 21-A/1992. It was alleged in the plaint that plaintiff/respondent No.1 vide sale deed dtd. 20/05/1977 had purchased 135X40 sq ft land bearing land survey No. 2290 from its earlier owner namely Gappulal. It was alleged that applicant had encroached upon some part of the land, thus, prayer for recovery of possession and removal of encroachment was made. The suit was contested by the applicant by filing written statement denying the plaint averments and objections were raised with regard to boundaries of the suit land. The learned Civil Judge Class I Vidisha (M.P.) vide its judgment and decree dtd. 10/07/1993 decreed the suit and directed to hand over the possession and also to remove the construction. Assailing the judgment and decree dtd. 10/07/1993, applicant had filed first appeal. The First Appellate Court vide judgment and decree dtd. 29/08/2000 remanded back the matter to the Trial Court for considering the case a fresh on the ground of proper valuation of court fee and also decide the case according to the demarcation since identity of the land was suspicious. Thereafter, in compliance of the order passed by the First Appellate Court, learned Trial Court recorded additional evidence and vide judgment and decree dtd. 23/07/2012 again decreed the suit. Being aggrieved first appeal was filed by the applicant which was dismissed vide judgment dtd. 17/10/2015. Being aggrieved by the Appellate Court judgment dtd. 17/10/2015, applicant had filed second appeal before this Court. This Court vide judgment and decree dtd. 10/08/2017 affirmed the judgment and decree passed by both the courts below and dismissed the appeal. Thereafter, respondent No.1 filed an application for execution before the learned Executing Court. Applicant filed an application under Order 21 Rule 13 and Sec. 47 Read With Sec. 151 of the CPC alleging therein that the decree passed is an unexcitable decree as the identity of the land is in dispute since the boundaries of the suit land mentioned in the sale deed and in the map annexed alongwith plaint are different. The learned Trial Court rejected the application. Being aggrieved, present revision has been filed.