A judgment holding a person as an owner is admissible in evidence to show assertion of title under Section 13 of the Indian Evidence Act, 1872.

VALMIKI J. MEHTA, J.

(ORAL)

1. Since the appellant in this case is the counsel who appears in this Court, considering the facts of the present case, at the outset, I put it to the counsel for the appellant who is appearing in person as to whether he wanted time to vacate the premises. The matter was passed over once. The matter was passed over again. The appellant states that he seeks to argue the appeal on merits. I have therefore heard the appellant on merits in this Execution Second Appeal (ESA).

2. This ESA impugns two orders of the Courts below i.e. of the first Court dated 2.7.2010 and of the appellate Court dated 6.3.2012 whereby the objections of the appellant, and who is the real brother of the defendant/Judgment Debtor have been dismissed. It may be relevant to state that the suit for possession which was filed by the respondent No.1/plaintiff/Decree Holder went right upto the Supreme Court and the Supreme Court vide its judgment dated 29.4.2005 held the respondent No.1 to be the owner of the suit property. The Supreme Court also held that father namly Sh. Bhagwan Das, of the Judgment Debtor and who is also the father of the present objector/appellant was not a tenant in the suit property as he had failed to exercise his rights of tenant by failing in his obligations to pay the rent.

3. The appellant argued before me in this second appeal, which cannot be entertained unless there is a substantial question of law, the following points:-

(i) The respondent No.1 is not the owner of the property inasmuch as fraud has been played upon the Government and since the respondent No.1 is not the owner of the suit property, judgment and decree which was passed in favour of the respondent No.1/decree-holder/plaintiff dated 29.4.2005 is obtained by fraud, and hence not binding. I may note that this judgment dated 29.4.2005 is the judgment of the Supreme Court which has been referred to above. I may also mention that a review was preferred against the judgment of the Supreme Court dated 29.4.2005 and which was dismissed by the Supreme Court vide order dated 17.8.2005.

(ii) The father of the appellant was in fact the tenant and therefore the appellant is not liable to be evicted from the suit premises as he has inherited the tenancy rights from his father.

4. Before making observations on the arguments as urged on behalf of the appellant, one has to make remarks as to how judicial process is abused in this country by unscrupulous litigants. The judgment and decree in favour of the respondents/plaintiffs/decree holders became final over seven years back, however, till date the respondents/plaintiffs/decree holders have not been successful in obtaining possession. The judgment of the Supreme Court dated 29.4.2005 shows that there were two previous litigations. The first litigation was when before the Settlement Commissioner under the Displaced Persons (Compensation and Rehabilitation Act) 1954, appellant, appellant’s mother and his brother i.e. defendant/Judgment Debtor raised objections to dispute the title of the respondent No.1/plaintiff. The appellant, the Judgment Debtor and their mother were not successful before the Settlement Commissioner and the proceedings attained finality when the challenge by the appellant, Judgment Debtor and their mother in this Court by way of a writ petition filed was dismissed on 9.4.1979. This was therefore one endeavour over a period of time to cast cloud on the title of the respondent No.1/plaintiff. I am informed by the counsel for the respondents that order of this Court dismissing the writ petition was also challenged in the Supreme Court and the Civil Appeal No.615/1982 was withdrawn on 13.7.1990. The second litigation was the subject suit which has been decreed in favour of the respondent No.1/plaintiff for possession by the highest Court on the land on 29.4.2005 and where once again challenge to the title of the respondent No.1/plaintiff was dismissed. As already stated, the