Point of Law: Execution of Decree - Inherent powers of Court - Plaintiff cannot be held to have a prima-facie case to obstruct a lawful decree of possession passed against him by Court of competent and co-ordinate jurisdiction.

JUDGMENT :

Satyen Vaidya, J.

Petitioner, who is plaintiff, before this Court by way of instant petition, has assailed the order dated 05.03.2021 passed by learned District Judge (Forest), Shimla in C.M.A. No.1-R/14 of 2020, whereby order dated 20.12.2019 passed by learned Civil Judge, Court No.2, Rohru in an application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure (for short ‘Code’) has been affirmed.

2. The parties herein, shall be referred by same status as they held before the learned trial Court. 1 Whether reporters of print and electronic media may be allowed to see the order?

3. The facts necessary for adjudication of this petition are as under:

3.(i) Plaintiff has filed a suit being Civil Suit No. 94/1 of 2019 against the defendants that the suit of the plaintiff may kindly be decreed to the following effects:

a) That the three storeyed house situated upon Khasra No.594/2 measuring 15x10 = 210 feet in Abadi Deh Jakhnoti, Tehsil Chirgaon is the joint property of the parties to the suit, still subject matter of partition.

b) That the possession upon the said house is intact with the plaintiff and the defendants No.4 to 6 from the time of their father Shiv Sukh and are enjoying the possession. The defendant No.1 never remained in possession at any point of time over the suit house.

c) That the document alleged fird dated 20.11.1999 is act of fraud not binding upon the plaintiff and proforma defendants since the same is unregistered and un-stamped documents not tenable in the eyes of law.

d) That the status of parties under law is still joint and no regular partition by meets and bounds ever took place between the parties.

e) That the defendant No.1 be restrained from putting the decree in execution for possession of the said house vide case No.126 of 2008/95 dated 24.10.2008 till the disposal of the case in any manner.”

3.(ii). The above noted suit has been filed on the premise that the suit property i.e. old house situated on Khasra No. 594/2 (new), Khasra No. 538 min (old) situated in Village Jakhnoti, Tehsil Chirgaon, District Shimla is joint and un-partitioned between the parties to the suit since the time of their ancestors. The plaintiff alongwith proforma defendants No. 2 to 6 claim exclusive possession on the suit property. 3.(iii). It is stated in the plaint that earlier defendant No.1 had instituted a Civil Suit under Section 6 of the Specific Relief Act against plaintiff and proforma defendants No.2 to 6 in the year 1996, seeking possession of the suit property. The suit was decreed by learned Sub Judge, 1st Class, Court No.2, Rohru on 24.10.2008 as Civil Suit No. 126 of 2008/95. Plaintiff assailed the aforesaid decree in revision before High Court, which was also dismissed on 28.05.2019 as Civil Revision No. 206 of 2008.

3.(iv). It has further been submitted that High Court while deciding Civil Revision No. 206 of 2008, observed that the dismissal of revision petition would not prevent either party from filing a regular suit establishing his right, title or interest over the suit property.

3.(v). The document in the shape of “Fird” dated 20.11.1999, on which defendant No.1, is stated to have based his claim is alleged to be null and void. In this background of pleadings, the reliefs as noted above, have been sought by the plaintiff.

3.(vi). Defendant No.1 has resisted and contested the suit by raising various legal objections. On merits, it has been stated that the suit property alongwith other joint properties left behind by common ancestors of the parties, stood legally partitioned between the parties. The suit property had fallen to the share of defendant No.1, who holds its exclusive possession in his own right. It has specifically been averred that the entitlement of parties to independently claim right, title or interest in the suit property, as observed by High Court while deciding Civil Revision No. 206 of 2008, does not imply that plaintiff can retain the possession of suit proper