Dinesh Singh vs Narmada Prasad Sharma and Another

N.K. Gupta, J.—The appellant has preferred the present appeal against the order dated 13.7.2013 passed by the learned First Additional District Judge, Damoh in Execution case No. 35-A/2003. The facts of the case, in short, are that, decree holder Narmada Prasad had received a decree of specific performance of contract of sale and thereafter, a sale deed was executed in his favour by the Court on behalf of the judgment debtor Mohan Singh for the land bearing survey No. 1448/1, having area 650 sq. feet, situated at township Damoh Khas in Revenue Division Damoh-2, District Damoh. An execution was filed for getting possession of the property. During the execution of the decree, the appellant filed an application under order 21 rule 97 of CPC that in plot No. 1448, area 1080 sq. feet was of the appellant, whereas the officer of the Court was dispossessing the appellant from his property. It was pleaded that the appellant was residing in the house, situated on the property when his father was alive. On 12.6.2001, on death of his father, the suit property was transferred in the name of the appellant and his brother Jitendra Kumar. Under such circumstances, the appellant cannot be dispossessed from the property. In support of his contention, a receipt of tax received by Municipality, Damoh was submitted and Bhuabhilekh Adhikar Pustika is also shown that land of survey No. 1448/1, area 1080 sq. feet was of the appellant.

The decree holder in his reply has submitted that the appellant did not give the details of various lands situated in survey No. 1448/1. The decree holder has purchased the land from one Mohan Singh and thereafter, his name was mutated. He has also filed a copy of Khasra to show that only the land having area 430 sq. feet was received by the appellant and his brother.

After considering the submissions made by the learned counsel for the parties, the learned First Additional District Judge dismissed the objection raised by the appellant and issued a possession warrant.

I have heard the learned counsel for the parties.

After perusal of the entire documents and considering the submissions made by the learned counsel for the parties, it appears that the claim made by the appellant is ambiguous. He has claimed his property on plot No. 1448, whereas, the decree holder is claiming the property of plot No. 1448/1. Under such circumstances, it is apparent that a partition over the plot No. 1448 was done by the Nazul officers and it was for the appellant to give the description of all the shares and all the survey numbers, which were created after the partition. A copy of khasra is also submitted by the respondent to show that area which remained with the appellant and his brother was only 430 sq. feet and therefore, if there was an area of 1080 sq. feet before partition of survey No. 1448 then, by that entry in the revenue record, the appellant cannot get any advantage. The appellant was required to come with clean hands to show that as to how he received the property and what was the limit of his possession in the revenue record after partition of survey No. 1448. Under such circumstances, by ambiguous allegations and ambiguous record, the appellant cannot get anything.

The decree holder has received the property on the basis of the contract of sale and thereafter, a mutation took place. If there was no share of seller Mohan Singh in the property then, he could not sell the property to the decree holder and in such a case, no mutation could be directed by the revenue authority on the basis of that sell. The decree holder is taking the possession of the property, which was of Mohan Singh and therefore, it is a different property. It has no concern with the property of the appellant. The trial Court has rightly found that no possession of the property hold by the appellant is to be given.

On the basis of the aforesaid discussion, the objection under order 21 rule 97 of CPC filed by the appellant was rightly rejected by the trial Court. There is no basis by which the appeal filed by the appellant can be accepted. Consequently, the present appeal is hereby dismissed with cost. The appellant shall bear his own cost as well as the cost of the decree holder. Memo of cost be prepared accordingly. Advocate fee may be computed @ Rs. 5,000/- for each Advocate, if certified. A copy of the order be sent to the trial Court for information.