PRABHAKAR SINGYA Vs. NATTHU KHAN

JUDGEMENT

(1.) Petitioner, an objector to an execution of a decree in Civil Suit No. 41 -A/1997-2005 has filed this petition under Article 227 of the Constitution of India being aggrieved by an order dated 18.10.2016 passed by executing Court dismissing the objection raised vide application under Order 21 rule 99 read with rule 101 of the Code of Civil Procedure, 1908.

(2.) The civil suit in question was at the instance of respondents No. 1 and 2for declaration and possession of the land bearing Khasra No. 1702/1, area 0.26 acre situated at Village Palera, District Tikamgarh and permanent injunction. The declaration was also sought that the sale deed executed by defendant No. 1 in favour of defendant No.3 on 11.10.1996 is void ab initio, accordingly, plaintiff also claimed that the construction raised over the suit property be demolished. The suit was decreed on 31.10.2000. Appeal and second appeal filed there-against were dismissed.

(3.) In an execution proceeding the petitioner on the anvil of the reports by the revenue authorities as to the physical status of the land in question filed an objection before the executing Court vide application under Order 21 rule 99 read with rule 1-00 CPC inter alia on the ground that their (petitioners') shop is standing over Khasra No. 1710/1 and the plaintiffs are trying to take possession thereof under the garb that it is over the plaintiffs ' land bearing Khasra No. 1702/1. The plaintiffs objected to the application. The trial Court while adjudicating the application by order dated 18.10.2016 dismissed the same holding that such objection can only be considered after dispossession. It is this order which is taken exception of on the basis of the law laid down by the Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another [(AIR 1997 SC 856)] and in Shreenath and another v. Rajesh and others [(AIR 1998 SC 1827)].