Bir Singh vs Mast Ram and Others

Deepak Gupta, J.—This petition is directed against the order dated 23.01.2009 whereby the learned Civil Judge (Jr. Division) Nurpur, had dismissed the objections filed by the petitioners (hereinafter referred to as the Judgment debtors).

The undisputed facts are that the respondents-decree holders filed a suit for possession of land comprised in Khewat No. 46 min, Khatauni No. 158, Khasra Nos. 1134, 1136, 1137, 1177, 1179, 1180, 1181, 1182, 1184, 1185 i.e. 10 plots measuring 0-50-55 H.M situate in village Mohal Bhamoli, Mauza Chhattar, Tehsil Nurpur. The learned trial Court vide Judgment and decree dated 28.09.2000 partly decreed the suit in favour of the decree holders. The decree holders were held entitled to possession of entire land except Khasra No. 1180 and land underneath the houses of Judgment debtors. Appeal filed by the Judgment debtors was dismissed on 19.03.2005 but while dismissing the appeal the learned Additional District Judge passed a decree in favour of the plaintiff in respect of the whole of the suit land. Appeal was filed by the Judgment debtors and the appeal was partly allowed on the statement made by the counsel for the plaintiffs and that portion of the Judgment and decree of the First Appellate Court directing demolition of the house of the appellants was setaside. In effect the Judgment and decree passed by the learned trial Court was upheld.

Thereafter, when execution petition was filed the Judgment debtors again filed objections and now they raised an objection that in addition to the land falling in Khasra No. 1180 and the land underneath the houses another 4 kanals and 15 marlas of land comprised in old Khasra Nos. 381, 382, 383 was mortgaged with the predecessor-in-interest of the decree holders and the same was got redeemed with possession vide mutation No. 300 dated 4.2.1964 and therefore the J Ds are in possession of the said portion of the suit property as owner. According to the Judgment debtors the land in old Khasra Nos. 381, 382 and 383 correspond to land in Khasra Nos. 1181, 1182, 1184 and 1185. The learned trial Court rightly held that the Executing Court cannot go behind the decree. The case of the Judgment debtors that they become owners by way of redemption of the land in the year 1964 should have been pleaded by them in the main suit. They cannot be permitted to raise such a plea in execution proceedings. In view of the above discussion, I find no merit in the petition, which is dismissed with costs assessed at Rs. 5,000/-.