PIYUNGLAM DEVI Vs. KASHMIR CHAND

JUDGEMENT

(1.) The petitioner is decree holder, whereas, the respondent is judgment debtor. The decree holder is aggrieved by order dated 19.8.1997 of Sub Judge (2), Palampur whereby her execution petition is -dismissed as infructuous by holding that the suit land is comprised of Khasra Nos. 1013 to 1017, whereas, the shop in dispute in respect of which decree for possession has been passed in favour of the decree for possession has been passed in favour of the decree holder is found situated over Khasra No. 986 as per the report dated 5.12.1995 of Naib Tehsildar, Jaisinghpur.

(2.) The -brief -facts of the case are that describing the shop in dispute by boundaries, the decree holer filed suit for possession by way of ejectment, which was resisted by the judgment debtor denying the ownership of decree holder and the relationship of landlord and tenant between him and decree holder, and alleging that the shop in dispute which is situated over Khasra No. 986 is owned by Mandir Lakshmi Narain (Thakurdwara) Alampur, Tehsil Jaisinghpur, District Kangra. In the replication the allegations made in the plaint were reiterated and contrary stated in the written statement was jienied and it was further alleged that the shop in dispute is situated on Khasra Nos. 1013 to 1017. On the basis of the pleadings of the parties the material issues framed were whether the decree holder or Mandir Lakshmi Narain (Thakurdwara), as alleged by the judgment debtor, is the owner of the shop in dispute, and also under whom the judgment debtor is tenant, which were decided in favour of the decree holder, with the result a decree for possession of the shop in dispute, as detailed in para 1 of the judgment, by way of ejectment of judgment debtor, was passed in favour of the decree holder. The shop in dispute was detailed as under in para 1 of the judgment: - "......a shop, abutting PWD road on the western side, Lakshmi Narayan Mandir on the Northern side, court -yard and house of the owner on the Easter side and shop of the owner on the Southern side, situated in the land entered.......Khasra Nos. 1013, 1014, 1015, 1016 and 1017 kita 5 land measuring 0 -04 -14 Hects., as per Jamabandi for the year 1982 -83 of Mohal Alampur, Tehsil Jaisinghpur, District Kangra, HP. hereinafter to be referred as disputed shop (khasra Nos. of the disputed shop has been mentioned in the replication)."

(3.) Admittedly, the above judgment and decree dated 21.5.1991 of Sub Judge 1st Class (Court No.2), Palampur, District Kangra became final between the parties, as no appeal was filed by the judgment debtor against it. It may be mentioned that an application under C.P.C. filed on behalf of Mandir Lakshmi Narain (Thakurdwara), Alampur for impleading it as party respondent alleging that the shop in dispute is situated on Khasra No. 986 owned by it> was rejected by order dated 16.1.1989, which was also not assailed further. The judgment debtor had also made an application under Order 26 Rule 9 C.P.C. for appointment of Local Commissioner for the purpose of demarcating the land, over which the shop in dispute is situated, which was also rejected by order dated 10.7.1990 holding that the real controversy between the parties is whether the decree holder is the owner and also whether there is relationship of landlord and tenant between her and the judgment debtor, which can be decided without getting the land, over which the shop in dispute was situated, demarcated.