Swaran Singh vs Raj Kumar

Rajiv Sharma, J.—Present petition has been instituted against the order dated 16.6.2009 passed by the learned Civil Judge (Junior Division), Barsar in Execution Petition No. 26 of 2005.

Material facts, necessary for adjudication of this revision petition are that the Respondent/Plaintiff/decree holder (hereinafter referred to as ''decree holder'' for brevity sake) instituted a suit along with one Shankari Devi for possession against the Petitioner/Defendant/ judgment debtor (hereinafter referred to as the ''judgment debtor'' for brevity sake) qua house shown as "ABCD" in the site plan and for vacant possession of the same after demolition of the building shown as "EFHGAD" situate in Abadi Tika of village Techh Tappa Ransara, Tehsil Barsar, District Hamirpur comprised in Khasra No. 276, Khata No. 105 min, Khatauni No. 105 min. The suit was dismissed by the trial Court. The decree holder preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge accepted the appeal and the judgment and decree dated 7.11.2003 passed by the learned Civil Judge (Junior Division), Barsar was set aside. The suit was decree for possession of the house shown as ABCD in the site plan Ex.PW-3/A and vacant possession after demolition of the building shown as EFGHAD in the site plan Ex.PW-3/A. The judgment and decree passed by the learned District Judge, Hamirpur was assailed by the judgment debtor by way of regular second appeal No. 136 of 2005. Same stood dismissed. Thereafter the decree holder filed execution petition in the Court of Civil Judge (Junior Division), Barsar on 20.9.2005. The judgment debtor filed reply to the same. According to him, the execution petition was not maintainable since he had purchased the disputed land vide sale deed No. 403, Jild No. 38, dated 10.8.2005 from the brother of decree holder for a consideration of Rs. 10,000/- and possession of the same was delivered/admitted by the vendor to the vendee on the spot. The learned Civil Judge (Junior Division) vide order dated 16.6.2009 decided the execution petition and warrant of possession was issued against the judgment debtor to the Collector with a direction to execute the judgment and decree passed by the learned District Judge, Hamipur, dated 1.2.2005 and submit report to him on or before 22.8.2009. Hence, this revision petition against order dated 16.6.2009 passed by the learned Civil Judge (Junior Division), Barsar, District Hamirpur.

Mr. Dalip K. Sharma, learned Counsel for the judgment debtor has strenuously argued that since his client has purchased the disputed land by way of sale deed dated 10th August, 2005 from the brother of the decree holder, decree could not be executed. Mr. K.S. Banyal, learned Counsel for the decree holder has supported the order dated 16.6.2009 passed by the learned Civil Judge (Junior Division).

I have heard the learned Counsel for the parties and gone through the pleadings carefully.

The suit instituted by the decree holder along with Shankari Devi was dismissed by the learned trial court. However, he preferred an appeal and the appeal was allowed by the learned District Judge, Hamirpur on 1.2.2005. The regular second appeal was preferred by the judgment debtor, which was dismissed by this Court. In other words, the judgment and decree passed by the learned District Judge, Hamirpur dated 1.2.2005 has attained finality.

Mr. Dalip K. Sharma has drawn the attention of the Court to sale deed placed on record. There is a recital in the opening portion of the sale deed that the judgment debtor has purchased ''Khali Taur". The decree is for possession of house shown as "ABCD" in the site plan Ex.PW-3/A and for vacant possession of the same after demolition of the same. The suit land in question is abadi comprised in Khasra No. 276, Khata No. 105 min, Khatauni No. 105 min. Mr. Dalip K. Sharma has also drawn the attention of the Court to portion of the sale deed whereby it is mentioned that his client was in possession of the property since 1997-98 and he has raised construction thereon. However, in the reply filed to the execution petition, it is averred that he had purchased the suit property from the brother of decree holder for a sum of Rs. 10,000/- and possession of the same had been delivered to him on the spot and accordingly he had become co-owner with the decree holder. There is a contradiction in what has been stated in the reply filed to the execution petition and the recitals in the sale deed. In the sale deed, as noticed above, it has come that he had purchased ''Khali Taur''. It has further come in the sale deed that he had been in occupation of the disputed land since 18 years. However, in reply to the execution petition, he says that the possession was handed over to him at the time when the sale deed was executed. In case the possession had been handed over to him at the time of execution of sale deed, how he could be in possession of the same for the last 18 years? It is apparent that the judgment debtor has adopted delaying tactics to avoid execution of the decree. Consequently, there is neither any illegality nor procedural irregularity in the order dated 16.6.2009 passed by the learned Civil Judge (Junior Division), Barsar, District Hamirpur.

Accordingly, in view of the observations made hereinabove, there is no merit in this review petition and the same is dismissed.