Judgment

Reserved on 11/04/2019 Pronounced on 23/04/2019

1. The matter comes up on an application (No.01/2018) seeking to take on record the correct/amended cause title.

2. For the reasons mentioned in the application, the same is allowed and the correct/amended cause title is taken on record.

Accordingly, the defect pointed out by the office stands cured.

3. With the consent of learned counsel for the parties, the matter has been heard finally.

4. This writ petition under Article 226/227 of the Constitution of India has been preferred claiming the following reliefs:-

“1. The order impugned dated 02.03.2019 (Annex.7) passed by learned Civil Judge, Barmer, may kindly be quashed and set aside.

2. The applications filed by the petitioners under Order 14 Rule 1 CPC (Annex.4) may kindly be allowed as prayed for.

3. Any other appropriate order, which this Hon’ble Court deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioners.

4. Allow cost of the writ petition to the petitioners.”

5. Brief facts, necessary for disposal of the present writ petition are that Bhairu Singh s/o Hamir Singh, the ancestor of the petitioners, alongwith one Shiran Singh s/o Bhim Singh had purchased a plot admeasuring 80 x 60 feet in Nehru Nagar, Barmer on 08.12.1983 from the predecessor in title, Kishan Singh s/o Bijraj Singh and Damar Singh s/o Sagat Singh.

6. The ancestor of the petitioners filed an application before the City Council, Barmer for regularization of their possession on the aforementioned plot, where against, the deceased respondent (Amari Devi) had raised objections. The City Council, Barmer, upon not finding any valid proof or evidence in the objections so raised by the deceased respondent passed an order dated 31.08.1985 in favour of the ancestor of the petitioners for regularization of the possession.

7. Aggrieved by the aforementioned order, the deceased respondent filed a revision petition No.113/1985 before the Additional District Collector, Barmer, which was dismissed vide order dated 24.03.1985.

8. Thereafter, on 05.11.1984, the deceased respondent filed a suit No.31/1984 for possession of the aforementioned plot against Kishan Singh, Damar Singh, Ridmal Singh and others. The said suit was decreed on 22.08.1989.

9. Subsequently, the execution proceeding No.05/1998 of the decree dated 22.08.1989, which was passed in the original suit No.31/1984, was initiated by the respondent. As per the pleadings, the fact of initiation of the execution proceeding came to the knowledge of the petitioners, only when the concerned Sale Amin visited the property of the petitioners in the month of December, 2015. Thereafter, the petitioners filed an application under Order 21 Rules 58 & 97 read with Section 151 of the Code of Civil Procedure (CPC) before the learned Civil Judge, Barmer, raising objections to the execution in respect of the property of the petitioners on the strength of a valid patta having been issued in favour of petitioner’s father on 07.09.1989.

10. Vide order dated 09.11.2016, the learned court below has observed that a perusal of the record shows that there is no need to frame issues and take evidence of the parties, and accordingly, the matter was fixed for arguments on 19.11.2016.

11. During pendency of the aforementioned application under Order 21 Rules 58 & 97 read with Section 151 CPC, the petitioners filed an application under Order 14 Rule 1 CPC on 19.11.2016 praying for framing of issues and taking of evidence of the parties.

12. The aforementioned application under Order 14 Rule 1 CPC however, was rejected by the learned court below vide its order dated 27.04.2017, while not interfering with and reviewing its earlier order dated 09.11.2016.

13. Being aggrieved by rejection of the aforementioned application vide order dated 27.04.2017, the petitioners have preferred a writ petition bearing S.B. Civil Writ Petition No.5856/2017 before this Hon’ble Court, which was decided vide order dat