TARA CHAND Vs. VANEY CHAND

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Additional District Judge, Sirohi, dated 16 -3 -1974. A decree was passed in favour of Vaney Chand (since then dead) on 24 -10 -1938 in appeal by the Judicial Superintendent, Sojat for possession of a Nohra. It was also directed that the decree -holder shall pay Rs. 63/ - to the judgment -debtor who had paid that amount towards the price of the Nohara. When the decree was executed an order was passed on August 16, 1941 for delivery of possession of the property but some confusion arose regarding the identity of the Nohra on spot. Upon further appeal, the Chief Court of Jodhpur by its order dated 15 -5 -1942 directed that the decree -holder is entitled to have his for possession executed on the basis of his plan Ex P 5 as held by the courts below. Possession has yet to be delivered to the decree -holder. If the decree is executed in contravention of Ex P. 5, the judgment -debtor will have an opportunity of fighting out this point in due course of law. Inspite of these clear directions, the litigation continued and the decree -holder is still waiting to get possession of the property. It appears that one Shri Dalichand was appointed the Commissioner to give possession of the property. He reported on 2 -2 -1963 that it was not possible to do so. This report of the Commissioner was rejected and another Commissioner Shri Sultanmal was appointed He measured the whole area in question and drew a map of the portion of which possession was to be delivered The last order of the executing court is dated 5 -6 -1971, b(sic) which the learned Munsiff disposed of a number of objections raised by the judgment -debtor and ultimately, directed that the Commissioner, Shri Sultanmal will proceed to the spot to deliver possession of Nohra as per Ex P 5 and as per his report dated 19 -9 -70. He further directed that the decree -holder or his representative will keep the material ready to raise walls at the time of the delivery of the possession of the Nohra and Commissioner should see to it that the walls are raised at the spot in his presence and a memorandum should be prepared to show that the physical possession was actually delivered at the site. This case is bound to be lingered on again by the judgment debtor and hence the judgment -debtor is bound down not to disturb the temporary dotted brick lines got raised by the Commissioner, unless otherwise directed by the higher courts. He should maintain status quo at the site till further orders and any disturbance of the position in the site will attract penal consequences.

(2.) Against this direction, the judgment debtor Tara Chand as apprehended by the learned Munsiff again preferred an appeal which was dismissed by the learned Additional District Judge, Sirohi, by his impugned order. The learned Additional District Judge, Sirohi, directed the parties to appear before the learned Munsif, Bali, on 25th, March, 1974 The executing court was directed to appoint Shri Sultanmal as the Commissioner for handing over the possession to the decree -holder by constructing a wall on the dotted lines shown in the site plan prepared by the Commissioner which is at page A 201/6 of the file. The Commissioner shall complete the work within 7 days.

(3.) But the judgment -debtor still remained recalcitrant and preferred the present appeal. Before I proceed further to deal with the arguments of the learned counsel for the appellant. I would like to say that the site plan Ex P 5 has clearly stated that the portion bounded in red shall belong to the plaintiff (decree -holder). This plan further clearly shows that on the north, south and west of the Nohra, there are 'pucca' built houses, while on the east there is a 'Gali'. Thus, the property in dispute having fixed boundaries, there should be and should have been no difficulty in locating its situs. The judgment -debtor was able to present a problem because on the north -eastern corner of the Nohra, there was a house of one Galla Choudhary which was purchased by the defendant, but which has since then fallen down and the line dividing the Nohra and the house of Galla Choudhary has disappeared. If the defendant had cared to file the sale -deed which could give the area and the boundaries of the property of Galla Choudhary or even if the judgment -debtor had come out with a definite case as to the area which he thinks, is recovered by the decree, then too, all problems could be resolved in an easy manner. But that was not to be because the judgment debtor was determined to resist the decree as long as he could by resort to such devious and dilatory litigation as law could allow him to do. The learned Additional District Judge, held that besides the fixed points on all directions (except the north -eastern) the dimensions of the Nohra are also available in the plan Ex P 5. The Nohra has a 'pol' which is 25ftx14ft followed by a chowk which is 30ftx42ft Then, the measurements of the Pankshala and other constructions which stand on the northern side are also available. The total measurement according to the site plan of the Nohra is 60ft from north to south and 30ft from east to west. The Commissioner therefore, prepared a site plan strictly in accordance with Ex. P 5 and was successful in demarcating the western boundary of the fallen house which had at one time belonged to Galla Choudhary and is now in possession of the judgment debtor. The courts below therefore, were absolutely correct in holding that the decree holder was entitled to the possession of the property as demarcated by the Commissioner Shri Sultanmal, in the map which is available in the file as aforesaid.