LEELADHAR KEJARIWAL Vs. GHANASHYAMDAS TIBREWAL

JUDGEMENT

(1.) The petitioner by filing this application seeks quashment of an order dated 29.01.2007 passed by the learned Civil Judge (Jr. Division) 1st Court, Cuttack in I.A. No. 55 of 2006 allowing the petition filed by the opposite party no. 1 and 2 under section 47 of the Code of Civil Procedure and thereby dismissing execution proceeding holding the decree passed in T.S. No. 176 of 2000 in favour of the petitioner (decree holder) as not executable against the opposite party no. 1 and 2 (judgment debtors) as it had been finally decreed by the judgment and decree in appeal in R.F.A. No. 06 of 2005 setting aside the order of dismissal of the suit by the trial court.

(2.) Heard learned counsel for the petitioner. None appears on behalf of the opposite parties despite opportunities being given in that regard. Perused the order in question.

(3.) The suit originally had been filed by the plaintiff-decree holder arraigning opposite party no. 1 to 8 as defendants for issuance of mandatory injunction against the defendant-opposite party no. 1 and 2 for removal of unlawful construction put up on the suit land. It has been alleged that on 21.07.2000, the opposite party no. 1 and 2 (defendants) forcibly entered over the suit land measuring an area of Ac. 0.030 decimals and began digging earth for raising construction. So a proceeding under section 144 of the Code Criminal Procedure was initiated and status-quo order was passed therein. The plaintiff-petitioner further pleaded that the defendant no. 1 and 2 entered into the suit claiming to having the right to passes as such on the basis of tenancy agreement dated 10.07.2000 said to have been executed by defendant no. 3 in their favour and alleged that they had raised the construction blocking the skylight and demolishing the thatched room where Bhajan was being regularly held. It is stated that the tenancy agreement was not legally tenable since it had not been executed by all the marfatdars of the deity, Shri Satyanarayan Thakur. However, the agreement expired by afflux of time, when its life of five years came to an end. The defendant no. 1 and 2 continued to remain in unauthorized possession and acted in violation of the order of status-quo passed in the proceeding under section 144 of Crimial P.C. Thereafter, since the defendant no. 1 and 2 found to have been raising further construction by encroaching over a part of the plaintiff-petitioner's premises and thereby obstructing free flow of light and air to the room of the hotel of the petitioner, the suit as above came to be filed. The defendants-opposite parties entering appearance, contested the petitioner-plaintiff's claim by disputing his tenancy. They also asserted that by virtue of the agreement between them and the opposite party no. 3 (landlord) through its marfatdars, they have so constructed the house and are in possession of the same. It is stated that their (defendant-opposite party no. 1 and 2) tenancy, is not having any clash with the interest to Mahadev Ram and his son Chiranjilal who are accepted as tenants with respect to the premises in O.S. No. 297 of 1950. They also pleaded to have never interfered with the tenancy of Mahadev Ram and to have never obstructed the free flow of light and air etc as alleged.