IMPORTANT POINT
Declaratory decree--Execution of--Declaratory decree declaring plaintiff to be owner in possession of the suit property--question of execution did not arise.

Mr. L.N. Mittal, J. (ORAL) - CM No.12471-C of 2010

2. Allowed as prayed for.

RSA No.4136 of 2010

3. Defendants Hans Raj and his son Om Parkash are in second appeal having failed in both the courts below.

4. Respondent-plaintiff Hira Lal filed suit for mandatory injunction directing the defendants to deliver vacant possession of ground floor of the disputed house alleging that plaintiff’s father Pritam Ram was owner in possession of the suit property. He died on 21.10.1986 leaving behind widow Bishan Devi, five sons (including plaintiff and defendant No.1) and two daughters as his 8 legal heirs. In the year 1990, all the brothers and sisters effected family settlement qua the suit property. In the family settlement, the suit property came to the plaintiff exclusively who compensated his brothers and sisters in terms of money. Defendant No.1 was also party to the said family settlement. On its basis, decree dated 23.01.1992 was also passed in favour of plaintiff against all his brothers and sisters including defendant No.1, declaring the plaintiff to be exclusive owner in possession of the suit property. All brothers and sisters made statement in the said case to this effect. Joint affidavit dated 05.01.1991 was also executed by all the brothers and sisters in favour of the plaintiff affirming that they have no objection if the suit property is mutated in the name of plaintiff as exclusive owner and accordingly, it was so mutated in the Municipal record vide letter dated 07.01.1991. The plaintiff is since then exclusive owner of the suit property. However the plaintiff being employed in Air Force and posted away in the year 1995 allowed defendant No.1 to live on ground floor of the suit property as licensee out of love and affection being his brother. However, defendant No.1 has allowed his son defendant No.2 to run a meat shop in the verandah of the house on ground floor which is creating nuisance and also blocking passage of the plaintiff for upstairs. The plaintiff terminated license of defendant No.1 and asked the defendants to vacate the ground floor of the suit property, but they refused, forcing the plaintiff to file the instant suit.

5. Defendants controverted the plaint allegations and pleaded that defendant No.1 is owner of ground floor of the suit property and defendant No.2 being his son is living there since birth and is running shop there for more than ten years. Plaint allegations were controverted. Alleged family settlement was denied. It was pleaded that under influence of the plaintiff, for the purpose of renovation of the suit property, collusive consent decree was passed in favour of plaintiff, but the plaintiff did not fulfill the promise. Affidavits were obtained by the plaintiff from all the brothers and sisters for renovation of the suit property, but by fraud and misrepresentation, those affidavits were used for obtaining collusive decree. It was denied that defendant No.1 was licensee in the suit property. Various other pleas were also raised.

6. Learned Additional Civil Judge (Senior Division), Ambala Cantt. vide judgment and decree dated 26.03.2010 decreed the plaintiff’s suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 30.09.2010. Feeling aggrieved, defendants have preferred the instant second appeal.

7. I have heard the learned counsel for the appellants and perused the case file.

8. Plaintiff has proved consent decree dated 23.01.1992 passed in his favour against all his brothers and sisters including defendant No.1, thereby declaring plaintiff to be exclusive owner in possession of the suit property. Defendant No.1 who was party to the said decree, did not challenge the said decree at any stage. Defendant No.1 has also admitted affidavit dated 05.01.1991 affirmed by him and other brothers and sisters that plaintiff is exclusive owner of the suit property and accordingly, plaintiff was so recorded in