- (1.) ORDER
(2.) LEAVE granted. The appellant's father-Nanu, Rehmatullah and Wazu are brothers. Munshi and Banda were their cousins. Munshi and Banda had migrated to Pakistan and then properties were declared as evacuee properties. By proceedings dated 12.3.56. the competent authority had passed an order separating the respective shares held by the evacuees, Munshi and Banda as well as the father of the appellant, Rehmatullah and Wazu and allotted specific items to Nanu. At an auction held on 14/04/1967 of the evacuee properties, the respondent - Dr. K. L. Anand had become the highest bidder and sale certificates issued on 26/09/1968, are as follows:- 594 "CERTIFICATE OF SALE (FREEHOLD PROPERTIES) RULE 90(15 THIS IS TO CERTIFY that Shri K. L. Anand, s/o Shri Parshotam Dass Anand having given the highest bid of Rs.4,250.00 (Rupees four thousand two hundred and fifty only) as sale by public auction held in pursuance of the powers conferred upon me under s.20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954 on the 14th day of April 1967 of the property described in the Scheduled and his bid having been accepted and the value thereof having been paid by him in cash/by adjustment of compensation due on his and his associate(s) claim(s) has been declared the purchaser of the said property in shares as mentioned below with effect from 14th day of June 1968. Given under my hand and seal of my office this 26th day of September 1968. SCHEDULE SHARES Property Khasra Sakni Full No. 13 Village Kalu Sarai, New Delhi bounded as under: East : Mosque Gali West : House of Shri Rehmatullah North : Khasra Sakni No. 14 South : Gali Sd/- Signature Designation Managing Officer/Asstt. Custodian New Delhi. Shri K.L.Anand, s/o Sh. Parshotam Dass Anand Shop No. 176, Vinay Nagar, New Delhi. Copies to: 1. Sub-Registrar, Kashmeri Gate, Delhi. 2. Assistant Accounts Officer, 3. central Board of Revenues, N.D. 4. Municipal Corporation of Delhi. Signature Designation." *************** CERTIFICATE OF SALE (FREEHOLD PROPERTIES) RULE 90(15 THIS IS TO CERTIFY that Shri K. L. Anand, s/o Shri Parshotam Dass having given the highest bid of Rs.6,050.00 (Rupees six thousand and fifty only) at sale by public auction held in pursuance of the powers conferred upon me under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act 1954 (44 of 1954 on the 14th day of April 1967 of the property described in the Schedule and his bid having been accepted and the value thereof having been paid by him cash/by adjustment of compensation due on his and his associate(s) claim(s) has been declared the purchaser of the said property in shares as mentioned below with effect from 14th day of June 1968. Given under my hand and seal of my office this 26th day of Sept 1968. 595 SCHEDULE SHARES Property No. Khasra Sakni Full No.14 Village Kalu Sarai, New Delhi Bounded as under: East : Mosque and Gali West : House of Shri Wazu North : Agriculture land South : Khasra Sakni No. 13. Sd/- M.L. Vij Signature Designation 26.9.68 Managing Officer/Asst. Custodian Office of the Regional Settlement Commissioner, New Delhi. To, Shri K.L Anand Shop No. 176 Vinay Nagar, New Delhi," ************** No. Rs.CD(MO)Auc/PN/KhasraNo.13/Kalu Sari/D/5178 Govt. of India, Min. of Labour Employment & Rehabilitation, Office of Regional Settlement Commr.(MW), Jamnagar House, New Delhi. CORRIGENDUM 25.10.69 Subject : Regarding Khasra Sakni No. 13, Village Kalu Sari, New Delhi. In the certificate of sale executed on 26.9.68 in favour of Shri K.L.Anand, s/o Shri Parshotam Dsss in respect of Khasra Sakni No. 13, Village Kalu Sari, New Delhi, the boundaries may be read as under:- East : House of Shri Rehmatullah West : Mosque and Gali North : Khasrs Sakni No.14 South : Gali. Given under my hand and seal of my office this day 24/10/1969. Sd/- M. L. Vij Managing Officer/Asst. Custodian To, Shri K.L.Anand, son of Shri Parshotam Dass Shop No. 176, Vinay Nagar, New Delhi. Copy to: Sub-Registrar, Asif Ali Road. New Delhi (MANAGING OFFICER)" ****************** No. Rs.CD/Mo(AUC)/PN/Kh.No.14/Kalu Sari/D/5180. Govt. of India, Min. of Labour Employment and Rehabilitation, Office of Regional Settlement Commr.(MW), Jamnagar House, New Delhi. CORRIGENDUM 25.10.69 Sub : Regarding Khasra Sakni No.14, Village Kalu Sari, New Delhi In the certificate of sale executed on 26.9.68 in favour of Shri K. L. Anand son of Shri 596 Parshotam Das in respect of Khasra Sakni No. 14. Village Kalu Sari, New Delhi, the boundraies may be read as under:- EAST : House of Shri Vazu WEST : Mosque and Gali NORTH : Agriculture land SOUTH : Khasra Sakni No. 13. Given under my hand and seal of my office this day 24/10/1969. Sd/- M.L. Vij Managing Officer To, Shri K.L.Anand, Shop No.176,VinayNagar, New Delhi. Copy to : Sub-Registrar, AsafAli Road, Delhi. (Managing Officer)" Thus, the properties bearing Khasra Sakni No.13 and 14 were confirmed in favour of the respondent Rehmatullah and Wazu challenged the said sales in W.P.No.960/69 in Delhi High court contending that the properties sold pursuant to the declaration of those properties being evacuee on 6/02/1956 were not, in fact, correct: they had interest in the sold properties and that, therefore, the sale made in favour of the respondent was illegal. The writ petition came to be dismissed by the learned Single Judge which was affirmed by the Division bench in LPA No 95/78 by order dated 14/09/1982. That order had become final. Therein, though Nanu was impleaded as 5th respondent, no relief of any sort was claimed against him nor any finding adverse to him in that behalf was recorded. In the meanwhile, the respondent had filed Suit No.270/70 in the District court, Delhi, against Rehmatullah and Wazu for possession of the properties bearing Khasra Sakni Nos.13 and 14 as indicated hereinbefore. Though the suit was dismissed, on appeal in RFA No.305/86, the division bench of the Delhi High court decreed the suit for possession and the decree had become final.
(3.) THEREFORE, now in execution, the respondent sought to take possession of the properties in Khasra Sakni Nos. 13 and 14. Resisting the execution and delivery of possession, the appellant made an application under Order 21, Rules 97 and 98 read with Section 151 of CPC contending that his father and members of his family had not migrated to Pakistan though the Custodian had declared certain ancestral properties to be evacuee properties of Munshi and Banda which were later sold to the respondent under Khasra Sakni Nos. 13 and 14; Dr. Anand has obtained collusive decree against others, the land was not demarcated; the land bears Khasra No.179 and in accordance with the Chijra Akshi, it is in his possession as an owner by virtue of his share in the ancestral property separated by the competent authority which never vested in the custodian nor it is sold to the respondent. The executing court dismissed the application on the ground that the dispute was adjudicated by the High court in RPA No. 805/86 and that, therefore, the claim is no longer tenable. On revision, in the impugned order dated 11.7.94, the learned 597 Single Judge dismissed the revision holding that the controversy was concluded in W.P. No.960/69 wherein the appellant's father was arrayed as respondent and that, therefore, he cannot make the objections. Hence this appeal.;