DEVI NANDAN SINGH Vs. DEONANDAN SINGH

JUDGEMENT

(1.) Heard Mr. Mrigendra Kumar, learned counsel appearing on behalf of the petitioners and Mr. Rai Shivajee Nath, learned senior counsel appearing on behalf of the opposite parties. This civil revision application is directed against the order dated 5.7.2010 passed by the learned Sub-Judge-I, Aurangabad in Execution Case No. 8 of 2009, whereby the petition filed on behalf of the defendants (petitioners herein) raising objection as to the maintainability of the execution case was rejected.

(2.) The facts of the case in brief is that the plaintiffs (opposite parties herein) had filed a title suit giving rise to Title Suit Nos. 78 of 1993/16 of 1994 seeking. declaration of title over the suit property, confirmation of possession and in the alternative for recovery of possession in relation thereto. The suit being put on trial, the learned trial court by judgment and decree dated 21.12.1995 and 5.1.1996 respectively decreed the suit in terms of the relief prayed in the plaint in favour of the plaintiffs. The learned trial court even while declaring the title and possession of the plaintiff-opposite parties over the suit property held that if the plaintiffs are found dispossessed from the suit property during the pendency of the proceedings, they would be entitled for recovery of possession thereof. The decree passed in the title suit is placed at Annexure-I to the present proceedings.

(3.) The defendant-petitioners being aggrieved by the judgment and decree passed by the learned trial court preferred an appeal giving rise to Title Appeal Nos. 2 of 1996/13 of 1998 and the appellate court by a judgment and decree dated 5.4.2003 dismissed the appeal. The judgment and decree of the appellate court has been placed on record by the plaintiff-opposite parties in their counter affidavit at Annexure-B thereof. The appellate court while affirming the judgment of the learned trial court reiterated the position that if the plaintiffs were found dispossessed from the suit property they would be entitled to get back the possession. It is a matter of record and not disputed that the Second Appeal No. 130 of 2003 preferred by defendant-petitioners was dismissed on 1.5.2008 and the special leave petition preferred by them giving rise to S.L.P. (Civil) No. 16779 of 2009 met the same fate when it was dismissed on 31.7.2009.