The validity of the sale deed made by the custodian under the Evacuee Interest (Separation) Act, 1951 and the rejection of the claim of adverse possession were central to the court's decision.

ORDER :

1. Leave granted. This appeal has been preferred against judgment and order dated 17th April, 2012 of the High Court of Rajasthan at Jaipur in Civil Execution Second Appeal No.2 of 2011.

2. Only question for consideration is whether the High Court was justified in remanding the matter for fresh consideration of objection filed by the respondents under 21, Rule 97 CPC, to the execution of decree dated 17th September, 1980 in Civil Suit No.34 of 1978 in favour of the appellants.

3. The appellants purchased the suit property in an auction held on 11th September, 1963 under the provisions of Evacuee Interest (Separation) Act, 1951 (LXIV of 1951). The competent officer issued the sale certificate dated 8th May, 1967 in favour of the appellants. Since actual possession was not delivered in spite of sale certificate in favour of the appellants, Suit No.34 of 1978 was filed for declaration and possession against Smt. Jannat (daughter of Munir Khan) and Babu Khan (son of Munir Khan) who were in possession of the property. After trial, the suit was decreed on 17th September, 1980. Decree was affirmed in appeal by the first appellate court on 15th February, 1996 and by the High Court on 09th September, 2008.

4. The main plea of the defendants was that of adverse possession which was repelled concurrently by the three courts and in proceedings spreading over a period 30 years. The High Court held :

"The courts below have come to a finding that under the relevant provisions of the Act the sale deed so made by the custodian after auction was not required to be registered and further even the defendants-appellants have not been able to prove their adverse possession as claimed in the written statement. The contention of the learned counsel for the defendants-appellants that the suit could be filed only under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, could not be accepted on the basis of evidence on record since the defendants-appellants had claimed ownership on the basis of adverse possession and the plaintiffs-respondents claimed the declaration and possession on the basis of sale made by custodian of the evacuee property. On the basis of concurrent findings of fact, since after due consideration property discretion has already been made by both the courts below, the substantial question framed do not survive now, more so, when no error or illegality apparent on the fact of record has been pointed out."

5. The appellants filed execution application No.7 of 1996 which remained pending on account of appellate proceedings but after dismissal of the second appeal by the High Court, the respondents 1 to 6 filed objection petition under Order 21, Rules, 97, 99 read with Rule 101 CPC being Civil Miscellaneous Application No.23 of 2010. The case of the objectors was that the suit property was in the name of Sikandar which was inherited by Sakoora ancestor of the objectors. Jannat, original defendant in the suit was a licensee of Sakoora. The said licence was revoked by Rabia objector who was wife of Sakoora and the house was locked on her behalf. The said Jannat colluded with the appellants and got the decree passed. The objectors were necessary party and were not bound by the decree. Jannat wrongly claimed herself to be the adopted daughter of Sikandar.

6. The above stand was contested by the appellants. It was stated that the original defendants, Jannat and her brother Babu Khan, were in possession of the house. The objectors were never in possession. The decree was not collusive but after full contest for 30 years. The property got vested in the custodian as the owner had migrated to Pakistan. The same was sold in public auction to which the objectors never took any objection.

7. The Executing Court held that Aladeen alias Dino son of Mohd. Vyapari was party to the sale certificate in favour of the appellants who was grandfather of the objectors. The objectors being heirs of Dinu were bound by the sale certificate.