MOHAMMAD KHAN Vs. RAMGOPAL

JUDGEMENT

(1.) The grievance of the applicant in the present revision is against the order dated 29.02.2012 passed in Misc. Civil Case No.79/2009, by the II Civil Judge, Class-I, Rewa, rejecting the application under Section 47 of the Code of Civil Procedure filed by the applicant.

(2.) Undisputed facts are that a suit was filed by the original decree holder Ramgopal, son of Ramnath Soni (since deceased) against the applicant being Civil Suit No.249/1989 for possession of immovable property. Specific claim for grant of decree was made by the original decree holder. The suit was decreed and an appeal filed against the said judgment and decree was dismissed by the first Appellate Court. A second appeal was preferred before this Court by the applicant, which too was dismissed on 06.07.2001. The respondents filed the execution of the judgment and decree and in the execution proceedings, instead of giving possession of land measuring 1440 Sq.Ft., some more land was delivered to the respondents. An objection was filed by the applicant under Section 47 of the Code of Civil Procedure and it was said that the excess land given in possession of the respondents in alleged execution of the judgment and decree aforesaid, be returned to the applicant and the possession of the applicant over the said land be restored.

(3.) This application filed by the applicant was opposed by the respondents stating that in fact the land bearing Revenue Survey No.181, area 0.03 dismal was delivered to the respondents and because the land of Revenue Survey No.180, area 0.05 acres, is not belonging to the applicant, no dispute in that respect could be raised by him. It was contended that the said land is owned by one Narendra Lal Khandelwal and the said person is in possession of the said land, therefore, the applicant cannot be granted any relief as claimed in the application. It was contended that the construction over the disputed land was not made by the respondents and in fact the construction was made by Narendra Lal Khandelwal. Unless the said person is impleaded as a party, the claim made by the applicant could not be looked into. It was contended that since the dispute is in respect of the land, which is not belonging to the applicant but is belonging to someone else, who was not party to the civil suit in which the decree was granted, the provisions of Section 47 of the Code of Civil Procedure would not be attracted at all. If the original owner of the land has any grievance, he is free to file a separate suit for the same.