MOHANPURI Vs. MASJID COMMITTEE

JUDGEMENT

(1.) This execution second appeal has been filed by the objector for execution of decree passed as far back as 24.11.1961. The application under Section 47 read with Section 151 of CPC was rejected by the learned executing court vide order dated 20.1.1979 and appeal filed thereagainst was also dismissed by learned Additional District Judge No.2, Ajmer vide order dated 11.3.2011. Both the courts concurrently held that objector-appellant miserably failed to prove by lead of any evidence the fact that he was residing in the suit property for last 20-25 years.

(2.) Shri Mahendra Goyal, learned counsel for the appellant has argued that the appellant could not at the time of filing of objection before the executing court and at the time of first appeal before the Additional District Judge, despite exercise of due diligence, produce the documents of his possession over the suit property. In this connection, he sought to produce certain additional documents with an application under Order 41 Rule 27 of CPC. The documents include the passport of his father, a letter addressed to his father by Managing Officer, Office of the Settlement Officer, Ministry of Rehabilitation, Government of India dated 4.9.1958 and 22.9.1961. Learned counsel for appellant has argued that both the courts have in their judgements observed that the objector failed to produce either any ration card or voting list etc. to show that he was in possession of the disputed property. It is argued that though the finding about the possession of property is a finding of fact, but nevertheless these documents would be necessary to enable this Court to pronounce judgment of this appeal. Learned counsel in support of his arguments relied on the judgement of this Court in Ramjiwan Ramnath vs. Roopchand & Ors., 1956 AIR(Raj) 1and that of the Jammu and Kashmir High Court in Kartar Chand and Anr. vs. Sheelo Devi & Ors.,2010 2 JKJ 299.

(3.) Per contra, Shri Amod Kasliwal, learned counsel appearing for respondent-plaintiff-decree holder argued that this is an execution second appeal. Objector/appellant cannot seek to fill in the lacunaes by now producing certain documents to set the clock at naught. This cannot be permitted in the scope of second appeal, much less in execution second appeal. Learned counsel argued that the objector did not even file any such document in his appeal before the Additional District Judge filed under Order 21 Rule 103. He only seeks to prolong his possession of the disputed premise. This is being done at the instance of original defendant because it is the original defendant who has set up the appellant and put him in possession of the disputed property, when he lost the suit.