KRISHAN DUTT AND OTHERS Vs. DEVKOO DEVI

JUDGEMENT

(1.) By way of present revision petition, the petitioners have challenged the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No.-V, Shimla in Civil Suit No. 370-1 of 99/98 dated 30.07.2007 vide which, learned Court below has decreed the suit of the plaintiff for possession of land and two storeyed house alongwith moveable property in a suit filed under Section 6/7 of the Specific Relief Act, 1963.

(2.) Brief facts necessary for adjudication of the present case are that Tej Ram filed a suit for possession of the suit land alongwith two storeyed building with movable property under Section 6/7 of the Specific Relief Act, 1963 on the ground that she was owner in possession of the suit land and predecessor-in-interest of defendants had filed a suit for declaration which was later on amended to suit for possession qua the suit land to the extent of half of share on payment of Rs. 1000/- in terms of declaratory decree, which was dismissed on 16.12.1988 by the learned trial Court. Tej Ram filed an appeal against the judgment so passed by learned trial Court and the said appeal was compromised at the back of the plaintiff and learned appellate Court decreed the suit of Tej Ram with respect to the suit land on payment of Rs. 15, 000/- within one month. Against the said judgment, Regular Second Appeal No. 3/94 was filed by the plaintiff in this Court which was dismissed on 30.09.1994. However, decree was modified to the extent that Tej Ram was now to pay an amount of Rs. 20,000/- instead of Rs. 15,000/-. Tej Ram filed an execution petition before the learned District Judge, Shimla seeking possession of the suit land alongwith house comprising of two rooms and one kitchen. During the pendency of execution petition, Tej Ram died. Defendants No. 1 to 4 filed an application under Order 22 Rule 3 of the Code of Civil Procedure to implead them as legal representatives of deceased Tej Ram by setting up an illegal Will. The execution petition was transferred to the Court of learned Sub Judge 1st Class (1), Shimla.

(3.) Devkoo Devi (respondent/plaintiff) filed objections under Section 47 of the Code of Civil Procedure in the said execution petition challenging the executability of the compromise decree. Defendants No. 1 to 4 sought time to file reply to the said objections and on their request matter was adjourned on 19.05.1008, 01.06.1998 and 24.06.1998. On the last date, defendants No. 1 to 4 did not appear deliberately and the execution petition was dismissed in default. Defendants No. 1 to 4 won over one of the Judgment Debtors in the said execution petition, namely, Cheeri Devi, who had filed an application through her counsel Shri Varinder Tejta without taking no objection from the earlier counsel and had sought permission to withdraw objections filed by her under Section 47 of the Code of Civil Procedure. On 18.06.1998, at about 4:45 a.m., the plaintiff was forcibly dispossessed of the suit property by the defendants without her consent and otherwise than in due course of law. The defendants committed house trespass at night and in furtherance of their common intent, Hema Nand outraged the modesty of plaintiff and also committed theft of movable property worth Rs. 46,150/-. On 29.06.1998, execution petition of the defendants was dismissed in default. On these basis, it was pleaded by the plaintiff that the defendants had no right, title or interest over the suit land and the dispossession of the plaintiff without her consent and otherwise than in due course of law was illegal and the defendants were liable to restore the suit land to the plaintiff.