MANOHAR LAL Vs. SMT. BHANTI AND OTHERS

JUDGEMENT

(1.) The instant revision petition has been preferred against the order dated 28.10.2016 passed by learned Additional Civil Judge (Senior Division), Bhiwani by virtue of which the application filed by the petitioner for recalling of warrant of possession was dismissed.

(2.) The facts that emerge from the impugned order passed by learned trial Court (the executing Court) are that respondents No.1 to 5 Smt. Bhanti and others filed a suit for declaration against their brothers Rohtash and Sheolal (respondents No.6 and 7), Ramphal (respondent No.8- subsequent purchaser) and Manohar Lal-petitioner, who was alleged to be a trespasser on the suit property, claiming that they are owners-in-possession of equal shares to the extent of 5/7th share in the suit land comprised in three plots by virtue of inheritance of the suit property from their deceased father Sukhdev son of Khyali Ram. The suit was decreed by learned Civil Judge vide judgment and decree dated 31.05.2010 and the sale deed dated 17.04.2004 executed in favour of Ramphal was set aside. However, no relief was granted against Manohar Lal-petitioner (defendant No.4) on the ground that the plaintiffs had failed to prove any encroachment by the said defendant. In the appeal filed by Smt. Bhanti and others-plaintiffs (respondents No.1 to 5), learned first appellate Court directed Manohar Lal petitioner to remove the encroachment and hand over possession of the suit property to the plaintiffs within a period of one month. The appeal filed by the petitioner and respondents No.6 to 8 was dismissed.

(3.) Since the petitioner failed to hand over possession of the suit property to the plaintiffs complying with the direction of first appellate Court, the decree holders-respondents No.1 to 5 filed an execution petition in which the learned executing Court issued a warrant of possession. The petitioner filed an application for recalling the warrant of possession alleging that decree holders No.2 and 5 had sold their shares to him and, therefore, the possession of the suit property occupied by him cannot be disturbed. The application was contested by decree holders No.1,3 and 4. While the contesting decree holders claimed that they are entitled to the land in possession of petitioner Manohar Lal on behalf of the five decree holders, learned executing Court finding the petitioner-judgment debtor No.4 as transferee-assignee of decree holders No.2 and 5 held that the decree holders No.1,3 and 4 were entitled to execution of the decree to the extent of their share only and declined to recall the warrant to the extent of ?th share of the decree holders.