Raj Vs. Shri Sunder Das & Ors  INSC 49 (11 January 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 SCC (2) 84 JT 1996 (1) 360 1996 SCALE (1)388
O R D
appeals arise from the order of the High Court of Delhi dated December 9, 1980 made in Civil Revision No.923/80.
The facts not in dispute are that the appellant was inducted into possession of
the properties, plots bearing Nos. 32, 33 & 35 admeasuring 384 sq. yards
situated in Wazir Pur, Kotla Mubarakpur, New Delhi by Smt. Vimla Devi, the 3rd respondent. He had filed a civil suit for
injunction against the respondent. Ultimately, the decree of the trial court
granting injunction became final. In the meanwhile, the appellant as well as
respondent Nos. 1 & 2 each have purchased 1/3rd share of the property.
Consequently, suit No. 27/73 was filed for partition and separate possession
thereof. Preliminary decree was granted on September 24, 1974 & final decree thereof was
passed on May 22, 1980. Thus the rights of the parties
stood worked out namely the appellant & respondent Nos. 1 and 2 are
entitled to 1/3rd share each in the total extent of the land as per the final
decree granted by the civil court.
view of these facts, it is stated by Shri Rajindra Sachher and Shri G.L. Sanghi,
learned senior counsel, that the appeals have become infructuous.
be mentioned at this stage that this appeal arises against a proceeding
initiated under Order 21 Rule 32(2) of CPC for enforcement of the mandatory injunction
granted by the civil court in execution. The trial Court granted execution to
consign the respondents No. 1 and 2 to civil prison and mandatory injunction
for removal of the respondents' possession of the entire property with police
assistance. The appeal was dismissed. While dismissing the revision under
Section 115 CPC as being barred by limitation, the High Court suo motu
exercised its power under Article 227 of the Constitution and set aside the
order of the execution court. Feeling aggrieved against that order, this appeal
has been filed.
view of the fact that the parties have accepted the final decree dividing the
properties into 1/3rd share each and allowing that final decree to become
final, the parties are bound by the decree and the appellant is entitled to
1/3rd share for possession. Any other proceedings in respect of lands covered
by the final decree in suit No. 27/73 would stand closed and all the parties
are to enforce their right under the final decree only.
appeals are accordingly disposed of with the above directions.
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